26 October 2017
September 2017 - Private Law
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- These Court of proceeding came to conclusion on 22 June 2017 whereby Mr Justice Peter Jackson made the orders requested and reserved judgment. CANH was withdrawn from M on 24 July and she died on 4 August at 50 years of age. The judgment is given: to explain why CANH was withdrawn from M, in response to the request of the parties for clarification of whether proceedings were necessary and to explain why the court appointed M’s mother as litigation friend rather than the Official Solicitor.
- The short answer is that: CAHN was withdrawn because it was not in M’s best interest to be continued as the evidence showed it had not been beneficial for a year. That it was not necessary to bring proceedings but it is understandable given the Practice Direction 9E and the state of affairs before Briggs  EWCA Civ 1169 and that Mrs B was appointed litigation friend because she was a proper person to act in that role.
- From 2003, M was no longer able to go out at all and was dependent on CANH by PEG tube. She had been bedridden for the last 10 years. M’s family in their evidence described her as:
‘ showing no signs of being aware of her surroundings at all, she is currently not really living any life at all.’
‘her quality of life is virtually non-existent. I feel that the PEG feed is keeping her alive, with no possibility of change or cure- it is simply causing M to suffer’
- The medical opinion of past and present treating clinicians was that it was in M’s best interests that treatment be withdrawn. M had been on a Stage III End of Life Care Plan since July 2016 where death had been expected in a matter of weeks. Dr Wild, concluded “the situation may be very distressing for her, given her previous views on quality of life and enjoyment. This existential suffering may have been going on for several years and may continue for several more”.
- In applying the framework outlined in the Mental Capacity Act 2005 including the need to act in M’s best interests alongside the rebuttable presumption that a person’s best interests are to stay alive, Mr Justice Jackson concluded that withdrawal of treatment was in M’s best interests.
- The question of whether the application was necessary has received recent consideration by the Court of Appeal in Briggs whereby Eleanor King LJ stated that where the medical treatment is not in dispute then it is a decision that can be taken by treating doctors. The Court concluded, having seen written submissions, that it was not a legal requirement to bring the application and further that the State’s Article 2 duty does not mandate court oversight as a matter of law.
- Rule 140 of the Court of Protection Rules 2007 provides that a person may act as a litigation friend if he (a) can fairly and competently conduct proceedings on behalf of that person, and (b) has no interests adverse to those of that person. There was no evidence or reason to believe that Mrs B’s ability to act on M’s behalf was compromised by her relationship or her beliefs about her daughter’s best interests. The fact specific decision was that Mrs V was a suitable litigation friend, and so she proved.
- Does an asylum claim by the subject children halt an application under the 1980 Hague Child Abduction Convention?
- The Home Secretary has been intervened in the proceedings and argues that a grant of asylum to the subject children would be an absolute bar to a return order under the 1980 Convention. However, while the application is pending the Home Secretary argues a return order cannot be implemented and can only be made to take effect once the asylum claim is refused and all avenues of appeal are exhausted.
- The Home Secretary had refused the mother and children’s asylum claim days before the hearing but that is now subject to appeal. The appeals process which can take many months is incompatible with the command for expedition contained in Article 11 of the 1980 Convention and Article 11.3 of the Brussels 2 revised regulation.
- A person who arrives at these shores seeking protection is not confined to claiming relief within the four corners of the 1951 Geneva Convention Relating to the Status of Refugees. They may also seek protection against threatened violations of Articles 2 and 3 of the European Convention on Human Rights incorporated in the Human Rights Act 1998. Clearly the principle of refoulment applies equally to a claim under the 1998 Act.
- The relief granted under either is that is allows the claimant to live here indefinitely with a guarantee that he will not be returned to the place of persecution.
- Whereas, the relief granted under the 1980 Convention, which has the objective of ‘protecting children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence’, is essentially of an interim, procedural nature. It does no more than to return the child to the home country for the courts of that country to determine his or her long-term future. The relief granted under the Convention does not make any long-term substantive welfare decisions in relation to the subject child.
- Mostyn J has no hesitation in concluding that where a grant of asylum is made it is impossible for the court to later order return under the 1980 Convention.
- If asylum is refused but appealed, it is possible and desirable for the court to hear the return application but to provide that no return order shall take effect until at least 15 days after the promulgation of the decision by the asylum tribunal (14 days being the time limit for seeking further appeal).
- If the appeal were allowed then a stay should be imposed on the return order. If the appeal were refused but the claimant signified intention to appeal further, the court may assess the prospects of success of the application for leave to appeal and decide whether to allow the return order to be implemented or further stayed.
- On the facts of the case, the Court was satisfied that the mother’s fears had no objective foundation and found no surprise that her asylum claim had been refused. Further that in the event that her fears were justified, that there is ample legislative protection in Israel.
- Mostyn J therefore ordered the child be returned to Israel, the order taking effect 15 days after the promulgation by the First Tier Tribunal of its decision on the mother’s appeal with the relevant provisions on staying the order as above.
- On the 13th February 2017 a draft consent order concluding financial remedy proceedings between the parties was submitted to the Family Court in Southampton. But the order has not been made as DDJ Underhill has twice refused to approve it, which refusal has been upheld and confirmed by DJ Sparrow, on the ground that certain provisions are outside the power of the court to order.
- The matter was referred to Mostyn J by the wife’s solicitors who approved the order after being satisfied that the objectionable terms were fully within the power of the court. At paragraphs 15 and 16, the draft order provided for two jointly owned properties to be transferred respectively to the wife and the husband. These properties were mortgaged. The draft order provided that each party would use their best endeavours to release the other from the mortgage and indemnify the other party against any further liability. The wife would also resign as a director of a company and transfer her share to the husband, she was to make no claim against the company and the husband would indemnify her from any further liabilities. DDJ Underhill was of the view that the court could not make this order.
- The order in respect of the mortgages derives from the standard form of financial order approved and adopted by the Financial Remedies Working Group in its first report of 31 July 2014.
- Mostyn J stated that since the final report of the Group dated the 15th December 2014 the orders in question have been made routinely. Mostyn J cited Livesey v Jenkins  AC 424 where Lord Brandon stated that there was nothing in section 23 or 24 of the MCA 1973 which directly empowered the court to make the order requiring the wife, following the transfer of the matrimonial home to her by the husband, to be solely responsible for the mortgage and all other outgoings on it. Such a provision, he said, should have been incorporated in undertakings.
- However, section 30 gives the court power when making a property adjustment order to direct that the matter be referred to one of the conveyancing counsel of the court for him to settle a proper instrument to be executed by all necessary parties. While this provision is now virtually obsolete it cannot be disputed that the instrument in question could contain terms which furnish all necessary indemnities and the obligations to pay instalments in relation to a mortgage secured on the property. Mostyn J did not agree that the provision in question is outside the "parameters" of the Matrimonial Causes Act.
- However, Mostyn J main reason for disagreeing with the Judges approach was set out in the Financial Remedies Working group. The mistake the Judges made in Southampton was to assume that their powers are confined to the four corners of the MCA. The family court has all the powers of the High Court, which has the unquestionable power to order an indemnity.
- If awarded, that represents a legal right in favour of the person so indemnified. The court can award an injunction in support of a legal right. To order someone who has been ordered to indemnify the other party in respect of a mortgage to use his or her best endeavours to keep up the payments on that mortgage is of the nature of an injunction in support of a legal right.