August Online Service Updates

What’s new in our plethora of law online services? Steve Savory summarises the highlights.

Two big updates to two big products this month: new issues went live for both Hershman & McFarlane: Children Law and Practice and Duckworth’s Matrimonial Property and Finance.

In Hershman & McFarlane, the Table for Human Rights Act Damages was updated and a number of revisions were made arising from:

  • 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;
  • A Protocol agreed between the President and the Home Office: ‘Communicating with UK Visas and Immigration (UKVI) in Family Proceedings’
  • President’s Guidance: ‘Family Proceedings: Parents with a Learning Disability’
  • The Court of Protection Rules 2017
  • President’s Guidance: Listing Final Hearings in Adoption Cases.

In addition, the coverage of public funding was revised for this release. Here’s an extract from the updated coverage:

“Decisions on public funding are taken by the Director of Legal Aid Casework (‘the Director’) and his officers on behalf of Legal Aid Agency (‘the Agency’), an executive agency of the Ministry of Justice. The Agency came into existence on 1 April 2013 following the abolition of the Legal Services Commission under LASPO.

The provision of public funding is now dealt with by the Agency in accordance with LASPO and the Regulations. This applies to all applications for funding made on or after 1 April 2013. Any case granted funding under the former Access to Justice Act 1999 shall continue under the provisions of that Act.

Family proceedings come within the ‘form of civil legal services’ funded by the Agency.  When determining an application for funding, the Director will consider: the scope of the work and whether the case is one for which funding is available, the prospects of success and the client’s means. This is governed by the Civil Legal Aid (Procedure) Regulations 2012, the Civil Legal Aid (Merits Criteria) Regulations 2012 and the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013. These Regulations replace the Legal Services Commission’s Funding Code and procedures made under s.8 Access to Justice Act 1999, s 8.  The following paragraphs are based on the 2012 and 2013 Regulations and the Lord Chancellor’s Guidance of July 2016.

Public funding is available for ‘matters arising under a family enactment’, which includes private law children applications under Children Act 1989, Parts 1 and 2.

An application for funding must include evidence of domestic violence or the risk of domestic violence in one of the forms set out in Schedule 1 to the Civil Legal Aid (Procedure) Regulations 2012, SI 2012/3098, as inserted by the Civil Legal Aid (Procedure) (Amendment) (No 2) Regulations 2017, SI 2017/1237. The effect of the 2017 amendments, which came into effect on 8 January 2018, is to broaden the categories of permissible evidence on which an application may be founded, and in particular to remove the requirement that the evidence of domestic violence must be less than five years old.  There is now no time-limit on the age of the evidence which may be produced in support of an application.”

Meanwhile, in the latest issue of Duckworth there is some interesting discussion of Lord Nicholls’ dictum in Miller arising from the recent Waggott case, i.e.

“‘For instance, the parties may have arranged their affairs in a way which has greatly advantaged the husband in terms of his earning capacity but left the wife severely handicapped so far as her own earning capacity is concerned. Then the wife suffers a double loss: a diminution in her earning capacity and the loss of a share in her husband’s enhanced income. This is often the case. Although less marked than in the past, women may still suffer a disproportionate financial loss on the breakdown of a marriage because of their traditional role as home-maker and child-carer.’

In the nature of things, this analysis will rarely fit with a short, childless marriage. Mrs Miller succeeded, not because she had defined needs or a claim for compensation, but because of the sharing principle next discussed. Be that as it may, a childless wife, who had sacrificed a career in HR in order to marry a prosperous banker, was entitled to £1.5m on divorce, even though this represented 65% of the assets, as the ‘fair price of a clean break’.

Although the dictum of Lord Nicholls exhibits two strands of thought, one in the direction of ‘downside’ compensation (ie related to career loss) and the other in terms of ‘upside’ compensation (related to loss of a husband), the latter is difficult to justify on any rational basis and has formally been ruled out as a head of claim by the Court of Appeal in Waggott. Another division of the Court of Appeal has observed that the speech of Lord Nicholls does not reflect the views of the majority in Miller.”

Written by Ellie MacKenzie

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