The Practical Lawyer


Procedure – divorce petitions

In the high-profile Owens v Owens case, W unsuccessfully petitioned for divorce. Her petition was founded on s1(2)(b) MCA. Even though the judge found as a matter of fact that the marriage had broken down, W had failed to prove H had behaved in such a way that W cannot reasonably be expected to live with him. Her appeal also failed.

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Procedure – forms

From 6 April 2017, 18 new and amended forms are in force – notably covering declaration of parentage, enforcement and protective orders. The forms, published by the Family Procedure Rules Committee, are as follows:

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Domestic violence – criminal behaviour order

A CBO is available on conviction for any criminal offence in the criminal courts and is aimed at tackling the most serious and persistent offenders before the court.

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Children – public law

An adoption order was made in circumstances where there were far more risks and uncertainties in moving the child from the adoptive placement to her birth placement than leaving her where she was.

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Legal aid – domestic violence

The five-year time limit on evidence of abuse which prevented vulnerable victims of domestic violence from securing legal aid for court hearings has been removed. This means more victims will be able to bring a claim.

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Procedure – MCA and deprivation of liberty

New guidance has been published in relation to deprivation of liberty and the Mental Capacity Act, in the context of intensive care unit settings. The guidance follows the Court of Appeal ruling in Ferreira in which a patient had a ‘severe mental impairment’ and died in an ICU. It was found that she was not in ‘state detention’ and she had not been deprived of her liberty under Article 5(1) ECHR. Arden LJ held that save in certain special circumstances, DoLs do not apply in the administration of life-saving treatment.

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Procedure – occupation and non-molestation orders

Changes under the Family Procedure (Amendment) Rules 2017 relate to applications for occupation and non-molestation orders with effect from 6 April 2017. The rules amend the FPR Parts 10 (applications under Part 4 FLA) and 11 (applications under Part 4A FLA) respectively to:

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Child maintenance – child support

F succeeded in his appeal in respect of liability to continue to pay child support for his daughter (D) once she was in full-time work. There had been an error in law on the part of the First-Tier Tribunal which had failed to investigate the factual matter of whether she had, in fact, been working; and whether child benefit was therefore properly or lawfully payable.

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Financial remedies – property

What effect does someone’s bankruptcy and declaration of trust have on a spouse’s beneficial interest in the bankrupt’s property which arose out of an existing consent order? A consent order was made in 2009 by which W was to be paid a lump sum in three instalments. He paid two instalments but failed to pay the third.

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Divorce – irretrievable breakdown

W unsuccessfully appealed the refusal to grant her a decree nisi, even though the judge at the Central Family Court had correctly concluded that the marriage has broken down as a matter of fact.

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