Complex Financial Remedy Cases at the Central Family Court FRU

The Financial Remedies Unit at CFC has issued guidance in respect of cases which will be accepted at the CFC FRU together with a form which needs to be completed.

Certificate of Financial Complexity

 

In the Family Court

In the Financial Remedies Unit of the Central Family Court

 

The marriage of				1. Outline background
[Applicant]				a. Date of Marriage			[Date]
and
[Respondent]				b. Date of Separation			[Date]
c. There are	[Number]		children of the family.
Please provide dates of birth of any children.
d. The Petition / Answer [delete as appropriate] was issued on							[Date]
at Bury St Edmunds Divorce Centre
Other court [please state]			[Name of issuing court]
and given case number
[Case Number]
e. The Decree Nisi was pronounced on					[Date]
f. The Decree Absolute was granted on					[Date]
g. There is / is not [delete as appropriate] a dispute about the jurisdiction of the Family Court. The reason for the dispute is:
Please provide brief reasons.
[Name]			Counsel / Solicitor for the Applicant/Applicant
Signature
[Name]			Counsel/Solicitor for the Respondent/Respondent

 

I/We certify that this application should be allocated to the Financial Remedies Unit of the Central Family Court because it is a case of such complexity that is appropriately dealt with in a Specialist Financial Court for the reasons stated overleaf.

Explanation of Complexity Issues

 

Delete/complete as appropriate

 

1. The assets in this case are currently estimated to be in the order of:
	a. Under £1 million
	b. £1 - £3 million
	c. £3 - £10 million
	d. Over £10 million
If the assets are in categories a., b. or c., please identify reasons as below why the case should be heard at the FRU and is not appropriate for hearing at a local hearing centre.
A. Potential allegations/issues may arise which include: [please tick all that apply]
	(1) Complex asset structures				(7) Expert accountancy evidence will be required
	(2) Complex income structures				(8) The parties’ respective contributions.
	(3) Non disclosure of assets				(9) There are/may be disputed allegations of “obvious and gross” conduct.
	(4) Assets are / were held through the medium of offshore trusts / settlements or otherwise held offshore or overseas				(10) There are substantial arguments concerning the illiquidity of assets.
	(5) Assets are/were held through the medium of family/unquoted corporate entities.				(11) There may be substantial arguments about:-which assets are “matrimonial assets” or “non matrimonial assets”
	(6) The value of family assets, trust and/or corporate entities.				(12) The application involves a complex or novel legal argument.
B. Any other reason why the case has the appropriate degree of complexity
	Yes
C. In respect of all Answers ‘Yes’ to A(1)-(12) or B please give brief details

 

Guidance Note: Financial Remedies Unit at the Central Family Court

 

The Financial Remedies Unit (FRU) is a specialist unit within the Central Family Court. It currently comprises seven full time courts conducted by specialist financial judges. It is headed by His Honour Judge Martin O’Dwyer.

 

1              Administratively it is supported by dedicated FRU staff and clerks who deal with all issuing, listing and drawing orders in Financial Matters.

2              The purpose is the efficient handling of complex financial cases.

3              The overriding criterion for a case being retained in FRU is complexity, i.e. is a case of such complexity that it is appropriately dealt with in a specialist financial unit.

4              The FRU has a number of internal procedures for the efficient managing of financial cases and an Enforcement Unit headed by DJ Robinson in cooperation with the Legal Advisers.

5              The contact email address is cfc.fru@hmcts.gsi.gov.uk.

 

Bury St Edmunds Divorce Centre

6              All Forms A subject to the following should will be issued at Bury St Edmunds (BSE) Divorce Centre or other Divorce Centre and allocated to the appropriate Family Court centre on a local court basis.

 

Issuing at CFC

7              Forms A may be issued directly in FRU at the Central Family Court upon completion of the Certificate identifying the appropriate level of complexity.

8              If it appears on the face of the Certificate that the criterion of complexity is or may not be met the matter will be referred to a judge of FRU who may decide to return the application or to refer the Form A to BSE for allocation on the appropriate local court criteria or to list the matter up to First Appointment in FRU.

9              Cases inappropriately issued in FRU which have to be referred to BSE may be subject to delay as the matter is transferred between courts. Similarly those whose first appointment is listed in FRU when the matter is not appropriately retained may suffer delay as the matter is then transferred to the appropriate local family court.

10           Transfers between courts

a.    To FRU.  Any family court may transfer cases to FRU where by reason of complexity or other good reason it is not convenient to retain the hearing in the local family court.

b.    From FRU. Nothing in these procedures is intended to restrict the judicial decision as to appropriate venue and FRU will liaise with other family courts for the efficient conduct of judicial business.

11           Petitions and Forms A may be issued at the CFC and other Family Court Centres in addition where

a.    There is a jurisdictional “race” between issues between competing jurisdictions

b.    Urgent relief is required e.g. freezing orders

Such applications once issued and the urgent matters dealt with, the normal test of rules of complexity or locality should determine venue.

 

HHJ Altman, Senior Designated Family Judge for London

Rachel Jones, Operations Manager, Central Family Court

Procedure: Agreements to extend time limits

Re W (Strict Compliance with Court Orders) [2014] EWFC 22 [2015] 1 FLR 1092[2015] 1 FLR 1092

The President

“I repeat what I said in Re W. I emphasise that the parties in cases in the Family Court are not permitted to amend a timetable fixed by the court without the prior approval of the court. I emphasise the obligation on every party, spelt out (as in this case) in the standard form of case management order, to inform the court ‘immediately' in the event of any non-compliance. That obligation is imposed for good reason, though too often, as in the present case, it also is not complied with.”

Costs in Children Cases: Further Guidance from the Supreme Court

The Supreme Court has confirmed that the usual 'no order' rule in Children cases applies on appeal as much as first instance decisions. The exceptions to that rule are
(a) where a party's conduct has been reprehensible or
(b) where a party's conduct is beyond the band of what is reasonable
The Supreme Court quashed a costs order against a local authority following their unsuccessful opposition to an appeal by a parent in care proceedings.

Baroness Hale said the distinction between first instance and appeal is simply that after a first instance judgment a party will be better able to see what the court considered relevant and thus be better able to judge whether further pursuit of their case is 'reasonable'.



http://www.familylaw.co.uk/system/redactor_assets/documents/2801/In_the_matter_of_S__A_Child__2015_UKSC_20.pdf

Child's Objections and the Hague Convention

Re M (Republic of Ireland) (Child’s Objections) (Joinder of Children as Parties to Appeal)[2015] EWCA Civ 26.

The Court of Appeal has given definitive guidance on the child's objections defence in an effort to bring clarity to an area which has been dogged by controversy in recent years. 

In particular the Court of Appeal confirms that considerations of the rationality of any objection or the extent of influence is only to be considered at the discretion and not the 'gateway' stage. 
69 ‘In the light of all of this, the position should now be, in my view, that the gateway stage is confined to a straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied in that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views. Sub-tests and technicality of all sorts should be avoided. In particular, the Re T approach to the gateway stage should be abandoned.’ 

 71 ‘.......It would be unwise of me to attempt to expand or improve upon the list in §46 of Re M of the sort of factors that are relevant at that stage, although I would emphasise that I would not view that list as exhaustive because it is difficult to predict what will weigh in the balance in a particular case. The factors do not revolve only around the child's objections, as is apparent. The court has to have regard to other welfare considerations, in so far as it is possible to take a view about them on the limited evidence that will be available as part of the summary proceedings. And importantly, it must give weight to the Hague Convention considerations. It must at all times be borne in mind that the Hague Convention only works if, in general, children who have been wrongfully retained or removed from their country of habitual residence are returned and returned promptly. To reiterate what Baroness Hale said at §42 of Re M, "[t]he message must go out to potential abductors that there are no safe havens among contracting states".

Article 12 BIIR - Prorogation - Court of Justice of the European Union hand down decision in E-v-B

E-v-B; Case C-436/13
On 1st October 2014 the Court of Justice of the European Union handed down their decision on this Preliminary Reference from the Court of Appeal of England and Wales. The questions posed by the Court of Appeal were

(1)   Where there has been a prorogation of the jurisdiction of a court of a Member State in relation to matters of parental responsibility pursuant to Article 12(3) of [Regulation No 2201/2003], does that prorogation of jurisdiction only continue until there has been a final judgment in those proceedings or does it continue even after the making of a final judgment?

(2)    Does Article 15 of [Regulation No 2201/2003] allow the courts of a Member State to transfer a jurisdiction in circumstances where there are no current proceedings concerning the child?’

The CJEU did not answer the second question.

The answer to the first question is

Jurisdiction in matters of parental responsibility which has been prorogued, under Article 12(3) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, in favour of a court of a Member State before which proceedings have been brought by mutual agreement by the holders of parental responsibility ceases following a final judgment in those proceedings.

So prorogation can only occur in relation to a particular application and ends when those proceedings conclude.  In reaching this conclusion the CJEU made the following points
(a) in considering issues of jurisdiction we must look at the situation at the time the court is 'seised'; which means when the document institutin the proceedings is lodged. [#38]
(b) the parties consent under Article 12(3) must be assessed at the time the court is seised. [#39] {the inference in the paragraph is that the consent is given contemporaneous with seising and in relation that application; rather than an advance and general consent. There is a potential tension with the approach of the Supreme Court in Re I [2010] 1 FLR 361 which considered advance consent.}
(c) that under Articles 8 and  12(3) jurisdiction must be established in relation to each specific case  which implies it does not continue after the proceedings end [#40]
(d) Jurisdiction must be determined in the light of the best interests of the child, which is usually linked to habitual residence/proximity [#44/5] but under Article 12(3) may be different.
(e) It could not be assumed that prorogation would be in the child's best interests after proceedings conclude and the best interests of the child must be reviewed in each specific case of whether the prorogation sought is consistent with those best interests.
(f) Thus prorogation can only take place for a specific case and ends with the conclusion of that case.


As will be readily apparent this creates a significant difficulty in seeking to retain jurisdiction. Most obviously this might be sought in temporary leave to remove cases (not holidays but sabbaticals/extended work placements etc).
The practise of asserting that habitual residence will be retained during such sabbaticals is not consistent with the Supreme Court Trilogy of cases on habitual residence [See 'The Supreme Court trilogy: a new habitual residence rises! David Williams QC  International Family Law June 2014 83]

The approach of the CJEU would also seem to prevent the parties stating that they provide their unequivocal consent to the English jurisdiction determining any future application concerning the child because the consent has to be at the time the court is seised of a specific case. Whilst it could be argued that an advance and general consent incorporates (unless withdrawn prior to the issue of specific procedings) consent to anything at any time this does not sit easily with the CJEU 'specific case' approach.

Furthermore the parties could not determine that it would be in the child's best interests to prorogue. That also has to be looked at on a specific case basis.


Within the EU this may not seem to be a problem - although not all courts operate to the same procedural, legal or cultural expectations - it will still act as a brake on temporary relocations.

In respect of moves to non-EU states it presents a considerably greater problem. The UKSC Trilogy cases confirm that the jurisdictional provisions of BIIR apply in relation to the establishment of jurisdiciton in England even if the competing jurisdiction is non-EU. So the English court always has to apply BIIR to assessing it's own jurisdiction. That means that even in a 3 year relocation to Dubai the court could not - acting consistently with E-v-B - accept an order which purported to prorogue generally and indefinitely to England.

The only way around such problems would seem to be by not making a final order on the application and thus retaining jurisdiction as a result of the proceedings not being finally concluded. There is a problem with this on temporary relocation cases though because the decision in Re G (A Child) [2014] EWCA Civ 680 (see Blogpost on 29.7.14) confirms that an order granting temporary leave to remove is a final order so as to conclude those proceedings.

One could circumvent this by issuing a CAO application, making an interim CAO order with a review on return or earlier application but this is  in many cases will just be artifice for the purposes of retaining jurisdiciton rather than a real reflection of the need for an interim order in the child's welfare interests.

At present there seems no obvious solution. All ideas welcome.

David Williams QC

[NB I appeared on behalf of the Appellant Father together with Michael Gration of 4PB]