Season 3
Listen to all episodes of the first series of Talking Family Law – the official Resolution podcast.
Listen on the go:
S3 Episode 1: Busking with Mr Justice Mostyn
About this episode
Hosted by: Anita Mehta and Simon Blain
Guests: Mr Justice Mostyn
Further information
We could not have been more excited to have the opportunity to speak to Mr Justice Mostyn before he retires at the end of the month.
We discuss Movers & Shakers – his highly successful podcast with five other Parkinson’s sufferers:
Plus his best case, and thoughts on transparency of course!
The Judge clarifies that Hildebrand documents are admissible if relevant, but the case of Immerman deals with professional conduct around such documents.
The Judge explains and justified the rates used for Duxbury, and invites Resolution to attend future meetings about the rates.
Finally, for all Resolution members you will be pleased to hear that the Judge completely supports the proposition that there should be no difference between the Court’s powers if the parties are married or not.
This episode gets better and better as the Judge goes on.
During the discussion the Judge mentions:
- RF v Secretary of State for Work and Pensions [2017] EWHC 3375 (Admin) – this is the case Mostyn J discussed being most proud of.
- Xanthopoulos v Rakshina [2022] EWFC 30 refers to the case of J v J [2014] EWHC 3654 (Fam)
- Evans v Evans [1990] 1 WLR 575, [1990] FLR 319
- James v Seymour [2023] EWHC 844 (Fam) (child support)
S3 Episode 2: The Trouble with Costs
About this episode
Hosted by: Anita Mehta and Simon Blain
Guests: HHJ Reardon and Laura Moys
Further information
We all agree that costs applications, and costs orders, are becoming more prevalent in Children Act as well as financial remedy proceedings. Public policy certainly seems to favour the use of costs orders as a way of ensuring that litigation is proportionate and reasonable.
In this episode we are assisted by HHJ Reardon (who sits in East London Family Court and the CFC hearing both Children Act and Financial Remedy cases) and Laura Moys (barrister at 1 KBW) talk us through costs orders in respect of Children Act and Financial Remedy cases.
We discuss LSPO including:
· HHJ Reardon reminds us (in the context of ever increasing interest rates) of the provision in Rubin V Rubin that:
viii) If a litigation loan is offered at a very high rate of interest it would be unlikely to be reasonable to expect the applicant to take it unless the respondent offered an undertaking to meet that interest, if the court later considered it just so to order.
· What happens in second LSPO applications; and
· LSPO in Children Act proceedings, including the need for equality of arms in accordance with BC v DE (Rev 1) [2016] EWHC 1806 (Fam) (21 July 2016).
We look at Costs orders in Children Act cases, and are reminded of the dicta in Re S (a Child), Re [2015] UKSC 20 (25 March 2015). They discuss when a Court may order costs after a fact-finding hearings and refer to Re T (Children), Re [2012] UKSC 36 (25 July 2012).
Finally we discuss costs in Financial remedy proceedings, including:
· the Court’s approach to making orders that cover legal costs in needs cases. Laura refers us to Azarmi-Movafagh v Bassiri-Dezfouli [2021] EWCA Civ 1184 (30 July 2021);
· When we should be dealing with costs arguments; and
· General guidance about Wwhat is and is not reasonable, in order to consider what sort of positions may result in costs orders;
· We are reminded that the Court can make costs awards where a party has refused to negotiate; JB v DB [2020] EWHC 2301 (Fam) (23 July 2020);
S3 Episode 3: Prenups – Definitely Worth the Paper it is Written on
About this episode
Hosted by: Anita Mehta and Simon Blain
Guests: Connie Atkinson and Nicholas Bennett
Further information
In this episode we are joined by Nicholas Bennett (29 Bedford Row), and Connie Atkinson (Kingsley Napley) who are both experts and enjoy pre-nuptial work including drafting, supporting or challenging pre-nups in Court.
Any discussion of pre-nups of course starts with Radmacher v Granatino [2010] UKSC 42, but we swiftly move on to Crossley applications (an application to the Court that the process of disclosure should be truncated because of the existence of the pre-nup) pursuant to Crossley v Crossley [2007] EWCA Civ 1491https://www.bailii.org/ew/cases/EWCA/Civ/2007/1491.html. It is ‘tempting but risky’ was the conclusion, so it is only prudent when the pre-nup is a knock out blow.
We discuss the three essential procedural points that the Court is looking for before giving weight to the agreement – no unfair pressure, financial disclosure and independent legal advice. We touch on the suggestion that an agreement has to be signed 28 days before the wedding and its relevance to giving time and space to understand and reflect on the proposed agreement and advice being given. We then turn to duress, fraud and misrepresentation and whether they are vitiating factors and what you would take into account when evaluating their impact on the agreement. Connie refers us to the case of Traharne v Limb [2022] EWFC 27 (31 March 2022) https://www.bailii.org/ew/cases/EWFC/HCJ/2022/27.html and AD v BD [2020] EWHC 857 (Fam) (08 April 2020) https://www.bailii.org/ew/cases/EWHC/Fam/2020/857.html.Nick discusses whether it is possible to entirely exclude what would otherwise be matrimonial property in a pre-nup, and refers to Brack v Brack [2020] EWHC 2142 (Fam) (29 July 2020); https://www.bailii.org/ew/cases/EWHC/Fam/2020/2142.html.
Connie discusses whether a pre-nup meets needs. She refers us to Ipekçi v McConnell [2019] EWFC 19 (04 April 2019);https://www.bailii.org/ew/cases/EWFC/HCJ/2019/19.html, and Cummings v Fawn (Rev1) [2023] EWHC 830 (Fam) (14 April 2023) https://www.bailii.org/ew/cases/EWHC/Fam/2023/830.html.
Nick mentions HD v WB [2023] EWFC 2 (13 January 2023) – https://www.bailii.org/ew/cases/EWFC/HCJ/2023/2.html
We also discuss international agreements, and marriage contracts, including CMX v EJX (French Marriage Contract) [2022] EWFC 136; https://caselaw.nationalarchives.gov.uk/ewfc/2022/136
S3 Episode 4: Dangerous Relationships with Professor Jane Monckton-Smith
About this episode
Hosted by: Anita Mehta and Simon Blain
Guests: Professor Jane Monckton-Smith
Further information
This month we talk to Professor Jane Monckton-Smith. The Professor is a specialist in homicides that are preceded by domestic abuse and coercive control. This is important for every single professional working in the family justice field because the Professor tells us that separation is the single biggest factor in homicide.
Coercive control is domestic abuse – it is not a facet of domestic abuse. It is a pattern of behaviour designed to trap someone in a relationship. This can be violence/ stalking/ financial abuse/ psychological etc. We are reminded that it is the control, not the level of physical violence that is the metric for risk. We discuss bi-lateral violence and how difficult that is for the Court to determine risk. The Professor tells us that there maybe two people who are being violent, but only one of them is controlling; we need to identify that person.
The Professor also tells us about the eight stages on her timeline before fatal violence. The Professor points out that anyone who is perpetrating coercive control, domestic abuse, or stalking, is somewhere on this timeline although that does not mean that it will always result in fatal violence. However, she questions whether concepts like ‘low-level’ domestic abuse – sometimes used when there is limited physical violence – is a helpful approach. The issue is not whether the victim-survivor has a broken bone, it is about the level the of control.
The Professor tells us how each stage on the timeline represents an escalation, and each of these stages can cause the victim-survivor serious harm.
| Stage | Red Flag | |
| 1 | History of the controlling person | Have they done it before? |
| 2 | The controlling person meeting someone they want to be in a relationship with | The relationship is characterised by things moving very quickly(declaration of love/ moving in together) |
| 3 | The relationship | It is dominated by coercive control/ domestic abuse |
| Note – most cases of coercive control do not move past this stage | ||
| 4 | Trigger stage – something that increases the risk | This usually involves a separation or a threat of a separation – this may involve contact with family justice professionals. |
| 5 | The escalation – the controlling person is trying to regain control/ get the relationship back | This is when stalking or post-separation abuse may start. Family justice professionals need to be really |
| Note at this point – some controlling people will move on to someone else and start again with someone else | ||
| 6 | A change in thinking | Homicidal ideation/ totally destroying someone
|
| 7 | Planning the homicide | This does exist – the idea that these homicides usually |
| 8 | Fatal violence – this could be the victim/ the perpetrator/ their children |
The Professor also reminds us that not all disputes about children involve coercive control, but we need to identify the cases where the perpetrator is using the family justice system to continue their abuse. We need to be alert to the fact that perpetrators are likely to be very at home amongst the fray of litigation. Victim-survivors may find it easier to just agree with what the perpetrator wants, or could appear intractable, because they are determined not to have their children experience the thing that they have.
We also talk about how to approach initial advice, injunctions, Clare’s Law, whether there should be capacity for findings made in family cases to be shared with Police, when coercive controlling people have the capacity to change, what to look for in a perpetrator course, the use of coercive control experts, and so much more.
If you would like to know more about the Professor’s work, she has written a book ‘In Control; Dangerous Relationships and How They End in Murder’.
S3 Episode 5: Re-thinking Mediation
About this episode
Hosted by: Anita Mehta and Simon Blain
Guests: Jo O’Sullivan, Dr Jon Symonds and Rachel Chisholm
Further information
This month we take an in-depth look at mediation with Jo O’Sullivan (O’Sullivan Family Law), Dr Jon Symonds (University of Bristol) and Rachel Chisholm (The Mediation Space, 4PB).In November 2022, Dr Symonds with his colleagues Emma Dermott, Emma Hitchings, Eleanor Staples, and Heather Ottaway from Bristol University published research with the Nuffield Family Justice Observatory, called Separating families: Experiences of separation and support:
https://www.nuffieldfjo.org.uk/resource/separating-families-experiences-of-separation-and-support
Jon tells us about this research and how they looked at 42 people’s experiences of separation. Eight participants in the study had been to mediation and told the researchers about their experiences. Some participants said they had appreciated the information and signposting, but another said they had found it frustrating because the mediator had not told their ex-partner they were being unrealistic (and when the case did go to Court, the Court also found those requests unrealistic) and another had found it distressing because the mediator had been unable to manage the power imbalance. In this study, all of the participants had tried to avoid going to Court, and had only used it as a last resort.
We all agree that mediation is the gold standard for resolving issues about how to care for children. We go on to talk about whether mediation works when there is a huge power imbalance between the parties, and whether there has been sufficient screening for domestic abuse in the past. Jo talks about the importance of having an initial appointment with each party separately, and whether that should be a mandatory part of mediation. We discuss whether cases with allegations of domestic abuse should be automatically exempt from mediation. Rachel reminds us of the importance of ‘do not harm’.
Jo shares some insights from her book ‘(Almost) anything but the family court’ https://www.familyseparation.shop/
All three of our guests talk about how the timing of mediation is key – both in terms of where the parties are in terms of their separation, and where they are in terms of proceedings. Whilst acknowledging there can be difficulty with identifying when parties are emotionally ready, and what to do if they are ready at different time.
We conclude with some thoughts for the future, including whether Court ordered mediation could work, the ability to have Early Neutral Evaluations provided to parties for mediation, and whether some of the rules and regulations around mediation should be lifted.