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Parklane Plowden expand Family Team with KC

<!-- wp:paragraph --> <p>Parklane Plowden’s Family Team are delighted to welcome Martin Kingerley KC as a door tenant.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Martin was called to the Bar in 1999, and took silk in 2020. He was then appointed a Deputy High Court Judge in 2023.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>An experienced family law practitioner, Martin specialises in the law relating to children, undertaking work in the most serious and complex public law cases relating to allegations of non-accidental injury and death, serious sexual harm, factitious/induced illness and honour-based abuse.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Martin is highly ranked in both the leading legal directories, with Chambers and Partners describing him as a barrister who “knows all there is to know about children's law” and who is “quite excellent in terms of his advocacy skills.”</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>“We’re delighted that Martin has joined as a door tenant, bringing a wealth of family law experience. His specialist knowledge of the law relating to children will provide a further boost to our already preeminent position in this field.” Stephen Render, Senior Practice Director.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For further information on the group’s services and expertise, please contact <a href="https://www.parklaneplowden.co.uk/clerks/stephen-render/" target="_blank" rel="noreferrer noopener">Stephen Render</a>, Senior Practice Director to the Family, Chancery &amp; Commercial Teams on 0113 228 5000.</p> <!-- /wp:paragraph -->

Land purchased by family members for business purposes not subject to Stack v Dowden presumption

<!-- wp:paragraph --> <p><strong><u>Case comment on Williams v Williams [2024] EWCA Civ 42</u></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the recent case of <em>Williams v Williams </em>the Court of Appeal looked at the question of whether the presumption laid down in <em>Stack v Dowden</em> [2007] UKHL 17 (namely that property purchased in joint names is also held as joint tenants in equity) applies more broadly than simply where that property is purchased by cohabitants or persons in the “domestic consumer context”.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Nugee LJ giving the judgment on behalf of the court, held that whilst it may apply more broadly it is absolutely clear it does not apply to properties bought for business purposes, even where the co owners are family members. This is because there is a clear and historic presumption that where property is bought for business purposes (whether by a partnership or not) the parties do not intend survivorship to operate, and therefore necessarily they must intend to hold as tenants in common.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Notably, the court commented there might be “strong arguments” in favour of the <em>Stack </em>presumption applying where property is purchased for business purposes by a couple in an intimate relationship, given the inevitable interplay of “mutual affection and sharing of both financial and other resources rather than commercial considerations” (para 54). Arguably, this simply reflects the likelihood that the nature of the relationship itself will amount to an effective rebuttal of the presumption against survivorship in those circumstances.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is of assistance that the court reiterated that the <em>Stack </em>presumption of joint beneficial tenancy in the absence of an express declaration of trust to the contrary, is not simply a result of the operation of the mantra of ‘equity follows the law’ but based on two much more fundamental justifications arising from context, as was made clear in <em>Jones v Kernott</em>:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true} --> <ol><!-- wp:list-item --> <li>“The first is implicit in the nature of the enterprise. If a couple in an intimate relationship (whether married or unmarried) decide to buy a house or flat in which to live together, almost always with the help of a mortgage for which they are jointly and severally liable, that is on the face of things a strong indication of emotional and economic commitment to a joint enterprise." (<em>Jones </em>at para 19)</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Secondly, that not only do parties in “a trusting personal relationship” generally not hold each other to account financially, but in many cases it is of great practical difficulty to attempt to do so. (<em>Jones </em>&nbsp;para 22)</li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>The facts in <em>Williams v Williams</em></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Williams</em>, the business property in question comprised a two-part family farm, Crythan Farm and Cefn Coed Farm. Both purchased in the joint names of Mr and Mrs Williams and their son Dorian who ran the farm as a partnership of equal shares formed by deed. This was an unusual case in that the parties agreed that the intention was for all three to own equally (they all having contributed equally including by virtue of a mortgage in joint names). The issue was as to mechanism and whether Mrs Williams’ beneficial share had, following her death, accrued to the others by virtue of survivorship, or whether it passed according to the terms of her will.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court noted the long standing presumption that those acquiring property for business purposes do not intend survivorship to operate and concluded that where property is owned by a couple and a third party, particularly where there is evidence of accounting between the parties (such as by way of partnership management accounts or the taking of rents) the appropriate starting point is that the property is owned as tenants in common.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Fundamentally, in <em>Williams</em>, the context was “very different” to that in <em>Stack </em>in that whilst it in part provided a home for Mr and Mrs Williams it was “primarily a business which provided their livelihood” (para 54).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Key takeaways</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This is a particularly important decision for the many disputes involving family businesses which extend beyond simply cohabitants or husband and wife and incorporate co-ownership of land with other family members. These are very often property holdings which have the added complexity of encompassing dual-use land such as farmland incorporating a family home (such as in <em>Williams</em>) or where the family home is located above business premises below.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is now beyond doubt that outside of the pure cohabitation context (unless an express declaration of beneficial interest is made) the court will very likely assume that co-owners of business or mixed business/domestic property intended to hold as beneficial tenants in common rather than joint tenants.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It also raises the knotty question of whether in a different case (one in which parties did dispute the quantum of beneficial shares), whether the starting-point of common intention constructive trust reasoning would also give way in favour of the more commercially focused resulting trust analysis.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>In short, in cases where property is co-owned by more than just the couple themselves, will the law now also presume their intention was to own in shares proportionate to their financial contributions – even as between the couple themselves?</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This also poses potentially very significant difficulties in terms of inheritance planning for families who may well be operating on the assumption that their partner and later children will acquire by way of survivorship on their death, thus avoiding otherwise potentially onerous inheritance tax implications.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Consideration should particularly be given as to whether this issue applies where purchases predate the introduction of the TR1, which now prompts parties to declare at purchase their intentions as to beneficial ownership, as it did in <em>Williams</em>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Harriet is a specialist family finance practitioner regularly undertaking instructions in TLATA 1996 claims. Harriet also has a breadth of experience in financial remedies cases involving family businesses and issues arising where property is owned jointly by one or both of the couple at the heart of the matter and third parties.</strong></p> <!-- /wp:paragraph -->

New Family Clerking Appointments at Parklane Plowden Chambers

<!-- wp:paragraph --> <p>PLP has a number of exciting announcements to make as it expands and develops its clerking services. <a href="https://www.parklaneplowden.co.uk/clerks/stephen-render/">Stephen Render</a> has been appointed Senior Practice Director of the Family, Chancery and Commercial Teams. He is a highly experienced Clerk with many years of experience in all areas of work covered by those teams, in particular dealing with complex and high value work.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>New hire <a href="https://www.parklaneplowden.co.uk/clerks/callum-bryne/">Callum Byrne</a> has been appointed as an additional Family Team Practice Manager. His wealth of experience in clerking a variety of teams will complement our existing Family Team Practice Manager <a href="https://www.parklaneplowden.co.uk/clerks/hannah-townsend/">Hannah Townsend</a> and Family Clerk <a href="https://www.parklaneplowden.co.uk/clerks/claire-wright-nee-shephard/">Claire Wright</a> who pride themselves on their accommodating and highly responsive manner.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/clerks/millie-eccles/">Millie Eccles</a> has also been appointed to act as Family Junior Clerk and is a very welcome addition to the clerking team. After successfully completing her apprenticeship with PLP and showing a passion for clerking, she looks forward to starting her career with the family team.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Head of the Family Team <a href="https://www.parklaneplowden.co.uk/our-barristers/julia-nelson/">Julia Nelson</a> commented “<em>We are extremely pleased with all of our new appointments which can only strengthen the position of what is a thriving and successful family team. We look forward to continuing to provide a comprehensive and responsive clerking service to all of our clients</em>.”</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph -->

The London Borough of Ealing v Mother &amp; Ors [2023] EWFC 201

<!-- wp:paragraph --> <p>This judgment concerned an application made for a care order and considered the use of s.20 agreements following the recent Court of Appeal decision of <em>Re S (a child) and Re W (a child) [2023] EWCA Civ. </em>This case is also a helpful reminder that there is no automatic prohibition on contact taking place overseas, even to a Non-Hague Convention Country.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Summary of Judgment:</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>His Honour of Judge Willans was concerned with the welfare of a 13-year-old boy who was subject to an application for a care order. The local authority (‘LA’) was concerned with allegations of domestic abuse, the child having low mood and suicidal thoughts, mother being evicted from her property, mother physically chastising the child, mother struggling to care for the child alone, limited progress being made under the Child Protection Plan, father residing abroad, father previously being inconsistent with contact, and mother refusing to engage with the LA. Due to these concerns, an interim care order was made in February 2023 and the child was placed into temporary foster care.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>During proceedings, the child was largely opposed to having contact with his mother, however, was having regular contact with his father. The child had overnight contact with his father overseas in a Non-Hague Convention Country. Prior to the final hearing, the child met with HHJ Willans and confirmed he did not wish to return home to his mother.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>At the outset of proceedings, the LA and father sought for the child to be placed under a supervision order and child arrangements order (live with father); this was on the basis that the child would be placed into a privately funded boarding school in the UK or abroad. This view altered once the child made clear that he opposed being placed overseas and going to a boarding school. The father raised whether a s.20 Children Act 1989 (‘s.20 agreement’) foster care placement should be made instead of a care order. Mother sought for the return of the child into her care but supported a s.20 agreement in the interim until she had obtained a suitable housing.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>During mother’s evidence, she maintained that the child wanted to live with her and that that the crux of LA’s decision to issue proceedings was because of her housing situation. Mother confirmed she did not trust professions, would not work with the LA going forward and viewed physical chastisement as a reasonable action to take. The social worker concluded that a s.20 agreement would not be in the child’s best interest given the difficulty with the parents communicating, father living abroad and father at times being non-contactable. Having reflected on the evidence and the strong wishes of the child, the father agreed that a care order was necessary.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In reaching his judgment, HHJ Willans placed particular emphasis on the child’s wish to remain in the placement where he was thriving, the importance of the child having consistent and predictable care on a safe basis, being in a placement which upholds his cultural identity and ethnicity, mother’s lack of insight into the LA’s concerns and her unwillingness to work with the LA. It was determined that it would be in the child’s best interests for a care order to be made and for the child to be placed into foster care. In relation to contact, it is agreed that the child will maintain his relationship with his father and mother’s contact will progress organically; it was felt specific contact arrangements may increase the likelihood of the relationship breaking down. HHJ Willans confirmed he would write a short letter to the child to inform him of his decision.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Discussion</strong>:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>S.20 Agreements</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>s.20 agreements allow parents to enter into a written agreement for their children to be voluntarily accommodated by a local authority. S.20 agreements do not provide a local authority with overriding parental responsibility (in contrast to a care order) and such agreement can be terminated by a parent at any point.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Although s.20 agreements are often utilised for short term placements, it is now well established through <em>Re S (a child) and Re W (a child) [2023] EWCA Civ 1</em> that such agreements can regulate long-term placements. In this case, King LJ recognised that a s.20 agreement does not provide a statutory limit of how long a child can be accommodated for and provided there is parental support for the placement and unlikely disruption, s.20 agreements provide the least interventionalist approach the court should seek to achieve. <em>Re S (a child) and Re W (a child) </em>established it would be disproportionate to make care orders where the only concerns were that a parent may terminate a s.20 agreement or that a child’s future behaviour may become challenging.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Despite this, HHJ Willans determined a s.20 placement would not be appropriate in this case. A key concern was mother’s refusal to work with the LA. This concern was supplemented by mother seeking the return of the child into her care, poor communication between the parents, and father residing outside of the country.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This judgment is a helpful reminder that while s.20 agreements can be made on a long-term basis, each case will be determined on its own set of facts. Given s.20 agreements require cooperation from those involved, a real focus will be on whether a parent has a proven and genuine willingness to work with the local authority. The court will also consider the practicalities of the arrangements and if it would be in a child’s best interest for a local authority to hold overriding parental responsibility.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Contact Overseas</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>At paragraph 5 of his judgment, HHJ Willans stated:<a>&nbsp;<em>“</em><em>It is an unusual feature of this case that, by agreement, the child has spent time overseas with his father in the course of the proceedings - including in country X which is a Non-Hague Convention Country</em></a><em>”.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Understandably, whilst in care proceedings, local authorities and the court may be reluctant to permit contact overseas. As care proceedings can conclude that a child is to the removed from their parents, should contact take place overseas, there is a possible incentive for parents not to return to England and Wales; such concerns are heightened if a Non-Hague Convention Country is involved.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This case, however, reiterates that an interim care order does not create a statutory prohibition on overseas contact taking place. Rather, each case will be considered on its facts. It is welcoming to see that the LA in this case, despite the well-known associated risks, did not prevent contact with the child’s father taking place overseas. This judgment is a useful reminder that contact can take place overseas and should a local authority seek to prohibit such contact without justified reasons, that decision should be challenged. A parent’s transparency and proven willingness to work with a local authority will be an important factor considered when such situation arises.</p> <!-- /wp:paragraph -->

Richard Harrington &#8211; My First Month of Family Law Pupillage at Parklane Plowden Chambers

<!-- wp:paragraph --> <p>The start of November marks the end of my first month as a pupil barrister. Starting pupillage was a surreal moment, it was what my years of studying and working had led to. The emotions on my first day included gratitude, excitement and of course, a lot of nerves! Thankfully, those nerves shortly passed as everyone in Chambers was welcoming and I had already met several members at events over the summer. This welcoming nature has continued, and I have felt fully supported within Chambers.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For my first six months, I am under the supervision of <a href="https://www.parklaneplowden.co.uk/our-barristers/farzana-tai/">Farzana Tai</a>, who specialises in children and financial remedy proceedings. Although Farzana is my supervisor, I have had the benefit of shadowing other members of the family team.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As a family pupil, I am fortunate to be in court daily. The clerks have been fantastic in ensuring I observe interesting cases and have the relevant papers well in advance of hearings. In this month, I have experienced a range of hearings relating to proceedings concerning public law children, private law children and financial remedy.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Throughout my first month, I have read bundles and briefs, anonymised judgments, conducted research for Farzana and other members, kept detailed attendance notes, drafted orders, and even assisted with cross-examination preparation.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>During my first week, I observed <a href="https://www.parklaneplowden.co.uk/our-barristers/nathaniel-garner/">Nathaniel Garner</a> appear on behalf of a local authority in the High Court on an application for a Wardship Order. In this case, the children were deemed habitually resident in England and Wales, however, were taken to a country in Africa for what was believed to be a holiday but have not returned. Due to the country not being a signatory to the Hague Convention, a Wardship Order was needed to assist with their return. I also attended the Pupil Practice Management Course in York where I met other pupils from circuit, heard from speakers on how to manage being a self-employed barrister and obtained guidance from renowned advocates.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In my second week, I was instructed to attend Kirklees Magistrates Court for a noting brief. I was instructed to keep a detailed note of a sentencing hearing for a client who had suffered significant personal injury from a road traffic incident. My note was to assist with any civil claim they may bring in the future. I also shadowed Farzana act for a parent in private law children proceedings where parental alienation had been alleged and a contact order be disregarded. This case was particularly interesting as it evidenced how a change of residency can follow where there is evidence of parental alienating behaviours.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Towards the end of the month, I shadowed <a href="https://www.parklaneplowden.co.uk/our-barristers/iain-hutchinson/">Iain Hutchinson</a> and Will Tyler KC represent a local authority at a fact-finding hearing in the High Court. This case involved a child who had become infected with gonorrhoea, and it was alleged to have been transmitted sexually by the parent or/and the step-parent. Given this was a complex and serious case, all parties were represented by Kings Counsel, and I was fortunate to witness a range of different approaches to cross-examination and oral submissions. I also attended a conference ahead of an FDR with <a href="https://www.parklaneplowden.co.uk/our-barristers/julia-nelson/">Julia Nelson</a> who advised a client on how non-matrimonial assets are considered by the court and a conference with Farzana concerning a tribunal appeal for child maintenance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>My first month at Chambers has provided me with exposure to various areas of family law and the opportunity to learn from the very best on the North Eastern Circuit. The learning process has been insightful, and I am incredibly grateful to be in a set where its members are approachable and encouraging of questions. I look forward to completing the rest of my pupillage at Parklane Plowden Chambers.</p> <!-- /wp:paragraph -->

Parklane Plowden Chambers ranked across seven practice areas in the Chambers and Partners 2024 rankings

<!-- wp:paragraph --> <p>Parklane Plowden Chambers has been ranked as a Band 1 set across five practice areas and a Band 2 set across two further areas in the Chambers and Partners 2024 rankings.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Chambers has been ranked as Band 1, the highest ranking a Chambers can achieve, across the Chancery; Clinical Negligence; Employment; Family: Children and Personal Injury practice areas.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Additionally, the set has been ranked as Tier 2 for both Family: Matrimonial Finance and Inquests &amp; Public Inquiries.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The individual barrister members received 65 rankings in this year’s edition across:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Chancery</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Clinical Negligence</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Costs Litigation</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Employment</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Family: Children </li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Family: Matrimonial Finance </li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Inquests &amp; Public Inquiries</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Motor Insurance Fraud</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Personal Injury</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Personal Injury: Industrial Disease</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Professional Negligence </li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Real Estate Litigation</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>In addition to his Band 1 Personal Injury ranking, <a href="https://www.parklaneplowden.co.uk/our-barristers/andrew-axon/">Andrew Axon</a> has once again retained his individual Clinical Negligence ranking of 'Star Individual'.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph -->

Parklane Plowden Chambers named as a Tier 1 barristers’ set across five practice areas in the Legal 500 2024 rankings

<!-- wp:paragraph --> <p>Parklane Plowden Chambers has been ranked as a Tier 1 set across five practice areas and a Tier 2 set across one area in The Legal 500 2024 rankings.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Chambers has been named as Tier 1, the highest ranking a Chambers can achieve, across chancery, probate and tax; clinical negligence; employment; family and children law and personal injury practice areas.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden is also the only set to be ranked for chancery, probate and tax and clinical negligence on the North Eastern circuit.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Additionally, the set has been ranked as Tier 2 for inquests &amp; inquiries.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The individual barrister members received 79 rankings in this year’s edition across:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Court of Protection and Community Care </li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Chancery, Probate and Tax</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Clinical Negligence</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Commercial Litigation</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Employment</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Family: Children and Domestic Violence </li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Family: Divorce and Financial Remedy </li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Personal Injury</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Property and Construction</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Professional Negligence </li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Inquests and Inquiries</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph -->

Parklane Plowden expand Family Team with KC

<!-- wp:paragraph --> <p>Parklane Plowden’s Family Team are delighted to welcome Julia Cheetham KC as a door tenant.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Called in 1990 and Silk since 2015, Julia brings with her an exceptional reputation, dealing with highly complex matters involving children and vulnerable adults.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Julia specialises in:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Family</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Child care</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Court of Protection</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Community Care Law</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Medical</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Human Rights</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>International and Overseas Territories Law</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>Julia’s particular area of specialism is in complex cases where one parent has killed another or where a child has been unlawfully killed. Julia has represented parents, children, and local authorities in such cases many of which have involved high-profile criminal cases and/or serious case reviews.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>“Julia is a fantastic addition to Parklane Plowden’s already unrivalled childcare expertise on Circuit, her experience will only enhance the team’s strength in this area.” Mark Williams, Senior Practice Director.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For further information on the group’s services and expertise, please contact&nbsp;<a href="https://www.parklaneplowden.co.uk/clerks/mark-williams/">Mark Williams</a>, Senior Practice Director to the Family Team on 0113 228 5043.</p> <!-- /wp:paragraph -->

New Rules for Standard Family Orders – Public Law

<!-- wp:paragraph --> <p>On the 17<sup>th</sup> May 2023 Mr Justice Peel announced a number of changes to the Standard Family Orders, along with guidance as to how such orders should be drafted. This article sets out the main changes with an emphasis on their relevance for Public Family Law practitioners.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The new pro forma Standard Family Orders can be found here:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-1-150523.zip">https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-1-150523.zip</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-2-150523.zip">https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-2-150523.zip</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The key changes are:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The orders give a greater steer for the commissioning of SJE experts rather than sole experts, and for their reports to be considered by the court without personal attendance at the hearing.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The orders accommodate directions relevant to remote hearings and the guidance on electronic bundles.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The orders include a Permission to Appeal directions order.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The orders incorporate the changes to law and practice brought by the withdrawal of the United Kingdom from the European Union.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The orders incorporate the new required forms for cases involving committal applications.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The orders incorporate an updated Deprivation of Liberty order, an updated standalone Port Alert order and the correct contact details for any disclosure request to NHS England.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The children orders reduce significantly the use of recitals. In general, recitals now appear at the end of children orders, giving greater prominence to the body and substance of the orders.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>In the children orders, there are separate orders for different stages of public law and private law proceedings, all of which have been made more streamlined.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>House Rules</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Mr Justice Peel sets out the ‘House Rules’ for the drafting of Family Orders, the main points of these are summarised below.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Recitals</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Recitals in a children order shall appear in a schedule at the end of the order.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Recitals must only record necessary information, drafted in a short and neutral manner.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Recitals should not:<ul><li>record what happened in the hearing</li></ul><ul><li>record the parties’ position</li></ul><ul><li>recite the documents which the court read (unless it was a without notice hearing)</li></ul><!-- wp:list --> <ul><!-- wp:list-item --> <li>recite the witnesses who were heard (unless it was a without notice hearing)</li> <!-- /wp:list-item --></ul> <!-- /wp:list --></li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Disclosure Orders</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Disclosure orders against third parties should each be drawn as a separate order</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The main order should include, in the body of the order, what disclosure orders have been made and the date by which the disclosure should be made.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Format of order</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The body of orders should always be prepared in Times New Roman font, 12 point, with single spacing.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Orders should be consecutively numbered from 1 irrespective of whether the paragraph in question concerns a definition, recital, agreement, undertaking or order. The schedule of recitals shall recommence as paragraph 1.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The next hearing should appear at the start of the Order, with the following orders and directions in chronological order.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Parties:<ul><li>The parties shall be specified at the beginning of the order.</li></ul><ul><li>Children shall be referred to by their first forename and surname.</li></ul><ul><li>Each child shall be numbered as a separate respondent.</li></ul><ul><li>The children’s guardian shall be referred to as “the guardian”.</li></ul><ul><li>If a party acts by a litigation friend, or a child by a children’s guardian, this must be stated.</li></ul><ul><li>Advocates should be identified on the face of the order as Mr / Mrs / Miss / Ms etc. [surname] or by their first name and surname, with counsel being identified as such.</li></ul><ul><li>Contact details should be included for litigants in person and the solicitor of represented parties. Counsel’s details should not be included.</li></ul><ul><li>Language</li></ul><ul><li>Clear English should be used at all times, avoiding archaic legal language.</li></ul><ul><li>Definitions appear in the recitals. Abbreviations may be used.</li></ul><ul><li>In the body of the order, parties should be referred to by their status (e.g. “applicant” and “respondent”) rather than by their role in the proceedings (e.g. the mother, the father etc.).</li></ul><ul><li>“Their” should be used in a singular sense instead of “his or hers”.</li></ul><ul><li>Where a direction or order is for a party to do something, it must be directed to the party and not to their solicitor.</li></ul><ul><li>Dates must be specified using the full name of the month and year, for example 17 May 2013</li></ul><!-- wp:list --> <ul><!-- wp:list-item --> <li>Times must be stated using the 24-hour format for example - 17:00 or 12:00</li> <!-- /wp:list-item --></ul> <!-- /wp:list --></li> <!-- /wp:list-item --></ul> <!-- /wp:list -->

Drafting Family Orders – the New ‘House Rules’ and Standard Family Orders – May 2023 | Part 2 – Financial Provision and Divorce Orders

<!-- wp:paragraph --> <p>The revision to Standard Family Orders (SFO) released on 17 May 2023 are said to:<br><em>“Reflect changes in law, practice, and procedure. In part, they have been amended to achieve internal consistency and clarity of phraseology. Formatting and stylistic improvements have also been made.” </em>(Advisory Notice by Mr Justice Peel, Judge in Charge of the Standard Orders).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In Part 1, Katherine Goss set out the May 2023 key changes to Private Children orders : <a href="https://www.parklaneplowden.co.uk/new-house-rules-and-standard-family-orders-may-2023/">https://www.parklaneplowden.co.uk/new-house-rules-and-standard-family-orders-may-2023/</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This second advisory note therefore concentrates on the May 2023 key changes to the Financial Provision and Divorce orders as a result of the May 2023 revision and also sets out in summary the new “House Rules” on how to draft orders.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As before, the SFOs do not have the status of&nbsp;<em>“forms”</em>&nbsp;under FPR Part 5. The default position is that they should be used, but parties and the court are permitted to adapt them to such extent as may be appropriate.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.judiciary.uk/guidance-and-resources/advisory-notice-by-mr-justice-peel-judge-in-charge-of-the-standard-orders/">Advisory Notice by Mr Justice Peel, Judge in Charge of the Standard Orders - Courts and Tribunals Judiciary</a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Click on the above link to access:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li><a href="https://www.judiciary.uk/wp-content/uploads/2023/05/HouseRules.May2023.docx"><strong>Download&nbsp;HouseRules.May2023.docxfile</strong></a><strong></strong></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><a href="https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-1-150523.zip"><strong>Download&nbsp;SFO-Vol-1-150523.zipfile</strong></a></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li><a href="https://www.judiciary.uk/wp-content/uploads/2023/05/SFO-Vol-2-150523.zip"><strong>Download&nbsp;SFO-Vol-2-150523.zipfile</strong></a></li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>The Family Orders May 2023 ‘House Rules’ are then in summary :</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1) All orders made by the Family Court and the High Court (Family Division) are to be in the standard forms as contained in Vol 1 and 2 so when drafting orders, whether by consent or following a hearing you should use the standard order templates adapted as appropriate to the facts of the case.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2) Recitals -in a financial order these should appear at the beginning of the order BUT in a children order they are to be <strong>at the end of the order</strong>. Recitals must only record necessary information, drafted in as short and neutral a manner as possible. They should not record what happened in the hearing and should be limited to essential background matters which are not part of the body of the order. Any purported views of the court which did not form part of the court’s decision should not be recited. The recording of a party’s position before, during, or after the hearing as a recital should cease unless the standard order template requires such information.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>3) Do Not - recite the documents read, or witnesses heard, save without notice hearings, in which case the details shall be recorded in a recital as shall the reason for the hearing being made without notice &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>4) Third party disclosure orders/non-party orders need to be done as separate orders &nbsp;not contained in the main order from the proceedings, but the main order should record that separate order(s) have been made and &nbsp;should identify what the separate order was for and the date by which any information / evidence arising from that order is to be disclosed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>5) Format of order: </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>a. The body of orders should always be prepared in Times New Roman font, 12 point, with single spacing.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>b. An order shall be consecutively numbered from 1 irrespective of whether the paragraph in question concerns a definition, recital, agreement, undertaking or order. Where possible, and in any event as provided in the standard order templates, recitals in children cases should appear in a schedule to the order. The numbering of paragraphs in any schedule shall recommence as paragraph 1.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>c. Subparagraphs, to two levels only, are permitted and shall be numbered (a), (b) etc, then (i), (ii) etc (with or without brackets).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>d. So far as possible, the order should contain orders and directions in a chronological order, save that the directions in respect of the next hearings should appear at the start of the order.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>e. An order shall state in its heading the statute(s), or European Regulation(s), or Protocol under which the powers in question are exercised. It shall not state that the inherent powers of the court are being exercised.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>6) Parties:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>a. The parties shall be specified at the beginning of the order.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>b. Use the “applicant” and the “respondent” not in the main suit (i.e. petitioner and respondent) save in respect of orders made in the main suit.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>c. Children shall be referred to by their first forename and surname.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>d. Each child shall be numbered as a separate respondent.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>e. The children’s guardian shall be referred to as “the guardian.”</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>f. If a party acts by a litigation friend, or a child by a children’s guardian, this must be stated in the paragraph of the order detailing the parties to the proceedings.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>7) Where a party was represented by an advocate, that advocate shall be named on the face of the order. Formality of naming should be preserved, with the advocate being identified as “Mr / Mrs / Miss / Ms etc. [surname]” or by their first name and surname. If the advocate is counsel, the order should so state.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>8) Where a standard order template requires contact details to be inserted into the paragraph detailing the parties to the proceedings, those contact details shall be of the party if a litigant in person, or of the solicitors on the court record if the party is represented. Contact details for counsel should not be used.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>9) Clear English (or Welsh in Wales) should be used at all times. Archaic legal language (“the party of the first part,” “hereinabove,” “heretofore” etc.) should be avoided.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>10) If definitions are required, they shall appear in the recitals. Abbreviations may be used.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>11) In the body of the order, parties should be referred to by their status (e.g. “applicant” and “respondent”) rather than by their role in the proceedings (e.g. the mother, the father etc.)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>12) Although not grammatically pure the plural pronoun “their” should be used in a singular sense instead of “his or hers.”</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>13) An obligation to do an act as provided for in an order shall be taken to include causing the act to take place. Thus the phrase “or cause to be paid,” does not need to be included in an order.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>14) An obligation to do an act within a specified period shall state the actual date and time by which the act must be done.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>15) Where a direction or order is for a party to do something, it must be directed to the party and not to their solicitor.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>16) Dates shall be specified and must use the full name of the month and the year in full form (e.g. 17 May 2013 and not 17<sup>th </sup>May 2013 or 17/5/13 or May 17<sup>th</sup>, 2013 or “this 17<sup>th </sup>day of May 2013”). Times must be stated using the 24-hour format (e.g. 17:00 or 12:00, not 5pm or noon.)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>17) Distances should be specified metrically up to 1,000 metres. Beyond that distance either system, imperial or metric, may be used.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>18) Monetary sums shall be denoted numerically, save that for sums expressed in millions the abbreviation “m” may be used. Other variants e.g. “M” or “millions” should not be used. Currencies shall be expressed by the usual symbols. Thus, for example, £, €, US$ and A$ should be used, not GBP, EUR, USD, and AUD.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Changes to the Standard Family Orders (Financial Provision)</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Key Practical issues and the need for change:</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The SFO ‘long directions order’ was (in the 2020 incarnation) at 46 pages extremely long and needed wholesale revision.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Across the board the orders needed to accommodate directions for remote hearings and electronic bundles and to update the forms in the light of the Efficient Conduct Statement.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Given that the Divorce Dissolution and Separation Act 2020 is now in force the terminology used in divorce, dissolution, nullity, and separation proceedings needed updating &nbsp;</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Specific changes</strong></p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The ‘long’ directions order is now down to 32 pages from 46 pages .</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The orders accommodate directions relevant to remote hearings and the guidance on electronic bundles (paragraph 76 Order 7.0 Vol 2)</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The orders incorporate the provisions of the Domestic Abuse Act 2021, including prohibition against cross examination provisions, and the appointment of a&nbsp;<strong>Qualified Legal Representative</strong>&nbsp;(Vol 2 Orders 24.1-24.7)</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The orders contain directions supporting the Statement on the Efficient Conduct of Financial Remedy proceedings in the Financial Remedies Court Below High Court Judge level.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The Financial Directions Orders &nbsp;(Order 1.1 and 1.2) orders give a greater steer for the commissioning of SJE experts rather than sole experts, and for their reports to be considered by the court without personal attendance at the hearing. This extends to there being in the <strong>Order 1.1 Long version</strong> specific reference t<a>hat the court is highly likely in the first instance to make an order for a single joint expert report and that it is only as a result of a <em>Daniels v Walker</em> application, or for some other reason, that the court permits one or both parties to obtain their own expert report</a>.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>The financial orders include additional undertakings such as (i) not applying for decree absolute/final decree until 28 days after the making of a financial order (relevant for the making of a pension sharing order); (ii) removal of Land Registry notices; and (iii) obtaining a Get.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The orders incorporate the provisions of the Divorce and Dissolution Act 2020, incorporating the new terminology for divorces – conditional order and final order in place of decree nisi and decree absolute – although retaining both options for the time being while this change takes effect.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The orders incorporate the provisions of the Domestic Abuse Act 2021, including prohibition against cross examination provisions, and the appointment of a Qualified Legal Representative.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The financial orders include draft costs orders updated to reflect changes in practice and guidance on costs.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The financial orders include draft directions and substantive orders on pensions updated to reflect changes in practice and guidance in this area.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The financial orders include a free-standing draft order to accommodate the Accelerated First Appointment procedure.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The orders include a Permission to Appeal directions order.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Warning notices have been updated and made consistent.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Conclusion</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It would serve all practitioners well to always have the ‘House Rules’ in mind to ensure that Orders do not require amendment by the court and to update personal templates with the new SFO’s.</p> <!-- /wp:paragraph --> <!-- wp:group {"layout":{"type":"constrained"}} --> <div class="wp-block-group"><!-- wp:paragraph --> <p>Julia Nelson is the head of the family law team at Parklane Plowden Chambers. Julia's practice specialises in Financial Provision and Private Children Law. </p> <!-- /wp:paragraph --></div> <!-- /wp:group -->