Costs Allowances in Abduction and Relocation Cases

Legal Services Orders and Costs Allowances. In England the possibility of securing funds from the other party to pay for litigation against that party have expanded significantly in recent years as a result of statutory and judge-led developments. In part this has been to fill the void created by the reduction in availability of legal aid but also has been a natural evolution from the ‘sharing’ principles and from a greater judicial willingness to be more flexible in interpreting the provisions of Schedule 1. A return perhaps to unlocking the principles of equity which lie captive in the judicial breast. Legal services orders are available under the MCA 1973 and costs allowances can be applied for under Schedule 1 Children Act 1989. Recent examples include Rubin-v-Rubin [2014] EWHC 611 (Fam) (Mostyn J 10 March 2014) - this contains a very helpful analysis of the criteria and explores the possibility that such orders might be available in Hague Convention cases. Re PG AND TW (No 1) (Child: Financial Provision: Legal Funding) [2012] EWHC 1892 (Fam)(Theis J; 4 May 2012) For a useful overview of both, see the articles by David Burrows in Family Law: ‘Costs allowances and legal services orders: MCA 1973, s 22ZAQ and 22ZB' [2013] Fam Law 318 and ‘Costs allowances in family proceedings' [2013] Fam Law 457).

Lament to Legal Aid in Hague Convention cases AND a solution?

In Kinderis v Kineriene [2013] EWHC 4139 (Fam) (18 December 2013)Holman J highlights the inequality in provision of legal aid to Applicants and Respondents in Hague Convention Cases. Three months later Mostyn J considered the possibility that costs allowances might be available to plug that gap: Rubin-v-Rubin [2014] EWHC 611 (Fam) (Mostyn J 10 March 2014). Although he did not make an order in that case he rejected the submission that such orders were inimical to the Hague summary process. Watch this space.

Transition to Child Arrangement orders

A question on everyone's lips (well that is a slight exaggeration) for the 22nd April 2014 is what happens to old residence and contact orders? The relevant statutory instrument on the transitional provisions is: The Children and Families Act 2014 (Transitional Provisions) Order 2014 which can be found here: http://www.legislation.gov.uk/uksi/2014/1042/contents/made. Essentially Article 6 provides that any old residence order or contact order is deemed to become a child arrangements order. The holder of a residence order will then be the person ‘with whom the child is to live’ under the CAO, and the holder of a contact order will then be the person ‘with whom the child is to spend time/otherwise have contact’ under the CAO. The full provision can be found at Article 6 and in the rest of the instrument. Many thanks to Julia Townend at 4PB for clarifying this.

Prorogation and Transfer of Jurisdiction: Preliminary Reference to CJEU C-436/13

The CJEU has set a hearing date of 15th May 2014 for this Preliminary Reference. The Court is being asked to consider whether a prorogation under Article 12 endures for the child's minority or whether it lasts only for the applicaiton/proceedings in connection with which the prorogation was made. It is also considering whether there need to be proceedings in place for an Article 15 transfer of jurisdiction to be effected. The reference was made by the Court of Appeal in connection with the father's appeal from the decision of Cobb J in Re S (Jurisdiction: Prorogation) [2013] EWHC 647 (Fam) [2013] 2 FLR 1584 [2013] 2 FLR 1584. I am appearing with Michael Gration on behalf of the father. Henry Setright QC and Edward Devereux are appearing for the Respondent.