04 October 2017

August 2017 - Private Law

For a PDF version of this months update: Click Here


Guidance on applications for freezing orders, ex-parte orders & out of hours judge

Tobias v Tobias [2017] EWFC 46

29th June 2017


  • The H lived in a care home and the W lived in the former matrimonial home. The property was worth approximately £650,000, but was heavily charged in respect of a number of debts. It was also subject to a notice of home rights in favour of the H. On 31st May 2017 the H made an ex-parte application for a freezing order to the out of hours High Court judge, Keehan J. The H could not explain what the emergency was that required the use of the High Court out of hours service. Keehan J refused to make an order.
  • The witness statement in support of the application was a defective document in that it failed to specify that the property was already heavily charged in favour of various creditors. On 5th June, the H sent an email to the court with attachments including a draft injunction order. On 6th June that was treated as an application for a freezing order and was in fact sealed by the court. The sealed document was in fact the proposed order that the H was seeking.
  • On 7th June the application came before Francis J where he made an order headed in the High Court of Justice, which was not in the High Court of Justice but in the Family Court. The matter was adjourned to be heard on 15 June by Hayden J. At that hearing the W gave an undertaking that she would not dispose of any of the martial assets. The matter then came before Mostyn J who set out a number of principles:
  • "it is impossible to conceive of any circumstances where an application for a freezing order should be heard in the High Court, rather than the Family Court". The power to grant a freezing order is derived from one of two sources; namely S.37 of the Matrimonial Causes Act, 1973; or S.37 of the Senior Courts Act, 1981.  Proceedings under Section 37 of the Matrimonial Causes Act are within the exclusive jurisdiction, at least initially, of the Family Court; and in relation to proceedings under Section 37 of the Senior Courts Act, subsection 6 provides that this section applies in relation to the Family Court as it applies in relation to the High Court. Mostyn J referred to his own decision of L v K[2014] Fam 35 at paragraph 14.  
  • Where there is power for a High Court judge sitting in the Family Court to hear a freezing injunction, the criteria set out in the Statement on the Efficient Conduct of Financial Remedy Hearings, dated 1 February 2016, should be applied analogously to applications for freezing injunctions.  Therefore, if the application for a freezing injunction seeks to freeze assets in excess of    £15 million, then it would be appropriate to approach a High Court judge.  If the application is to freeze assets in excess of £7.5 million, and it is accompanied by the factors of complexity mentioned in the statement at paragraph 3(3) – 3(10), then it would be appropriate to approach a High Court judge.  However, if the assets which are sought to be frozen do not, on any view, exceed £7.5 million, then it would only be appropriate to approach a High Court judge if the application involves a novel and important point of law. President’s Guidance given on 18 January 2017 concerning ex-parte applications generally.
  • Mostyn J stated that he found it ‘virtually impossible to conceive of any circumstances in any money case where it would be appropriate to approach the emergency out-of-hours judge for an injunction.  Unless there was i.e. strong evidence that a vast sum of money was just about to leave the jurisdiction and disappear to some kind of safe haven; or if there was strong evidence that a contract was about to be signed, that there might be justification for approaching the emergency out-of-hours judge but it would need a drama of that magnitude to justify it’.
  • The application for a freezing injunction was dismissed.



Successful appeal against variation of a prohibited steps order

AM v DF [2017] EWHC 2034 (Fam)

1st August 2017


  • The parties both come from Iraq. They have two children, born in 2009 and 2011.
  • In 2015 the parents’ relationship broke down. The Father applied for a prohibited steps order to prevent the mother removing the children from the country. In December 2015, HH Judge Brasse made an order prohibiting removal from the jurisdiction pending further order.
  • At a hearing in February 2016 an order was made reciting that the children live with the mother and have supervised contact with the father.
  • In May 2017, following a hearing, the judge delivered a short judgment which set out that one reason for the hearing was Mother’s wish to travel to Erbil, Iraq in July and August 2017 with the children.
  • The judge varied the prohibited steps order to allow the mother to travel with the children. In doing so he dismissed the Father’s reasoning that it is unsafe and that Mother is a flight risk by virtue that the Mother had taken the children to the region before and safely returned, and that the Mother and family were in a better position to make judgments on safety.
  • The Father filed a notice of appeal on 5th June asserting that the judge had failed to take adequate account of the welfare checklist. Further that the judge had; failed to provide detailed reasons as to why mother’s family were in a better position to determine risk; relied on mother’s reason for wanting to go without proper scrutiny, failed to explain why past travel was relevant compared to current guidance, failed to explain why travel to Iraq was essential, failed to consider alternatives and failed to give adequate reasons why the prohibited steps order could not be considered in full at the final hearing in July 2017.
  • The approach to this issue is set out in Re R.
  • The overriding consideration is whether making the order would be in the best interests of the child.
  • Where there is risk of abduction the court must be satisfied that the advantages outweigh the risks.
  • Applications for temporary removal to a non-Convention country will inevitably involve consideration of three related elements: (a) the magnitude of the risk of breach of the order if permission is given; (b) the magnitude of the consequences of breach if it occurs; and (c) the level of security that may be achieved by building in to the arrangements all of the available safeguards.
  • In this case the judge had little if any information upon which to make the careful and objective assessment required and no up to date evidence at all.
  • The Father had no opportunity to put any evidence or argument in response to Mother’s proposals.
  • The analysis of the judge does not contain the rigorous scrutiny required. Brevity is commended but 250 words is insufficient. The variation was unjust.
  • The father is allowed and the discharge of the prohibited steps order is stayed pending an appeal against the July order. The Mother is therefore not permitted to take the children to Iraq.



Application to extend the wardship of a child born via a surrogacy arrangement.

M v F & SM (Human Fertilisation and Embryology Act 2008)
[2017] EWHC 2176 (Fam)

23rd August 2017


  • A was born in early 2017 as a result of a gestational surrogacy agreement. M and F being the biological parents. SM and F being the legal parents.
  • During the course of the pregnancy, M and F’s relationship ended resulting in F not wanting any involvement with A.
  • The applicant is currently issuing an application for a parental order, whilst recognising that the application will be stayed pending a change in the law following the President’s declaration of incompatibility in Re Z (A child) (No2).
  • The Law
  • A parental order made via s54 of the Human Fertilisation and Embryology Act 2008 (HFEA 08) allows for the child to be treated as the legal child of the applicants.
  • The relevant provisions in the Act are:
    • S54(1) requiring an application by two people;
    • S54(2) requiring the applicants to be husband and wife, civil partners, or persons living as partners in an enduring family relationship; and
    • S54(4) requiring that the child’s home be with the applicants.
  • The President in Re Z (A Child: Human Fertilisation and Embryology Act: Parental Order) [2015] EWFC 73 declined to read down the provisions to permit an application by a single applicant but did make a declaration of incompatibility.
  • The only alternatives to a parental order are:
    • An adoption order, which in these circumstances would have been inappropriate as the biological mother would become the adoptive mother in law simply to gain some legal status; or
    • Making the child a ward of court, granting care and control to the applicant.
  • The President in Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam) said that s54 goes to the most fundamental aspects of status and to the very identity of the child, who he is and who his parents are.
  • Further, that a parental order has an effect extending beyond being merely legal. It has profound personal, emotional, psychological and social consequences.

As such, the court must treat the child’s welfare of paramount.

  • Mr Justice Keehan agreed.