The problem of litigants in person and vulnerable witnesses
Keep an eye out for Tom Wilson's article in the April edition of Family Law. Entitled 'The problem of litigants in person and vulnerable witnesses: lessons from the criminal courts?', the article examines the growing number of litigants in person in the Family Courts and the problems this poses when it comes to cases involving vulnerable witnesses. Tom compares the reasoning of the Court of Appeal in Re K and H (Children)  EWCA Civ 543 with a number of criminal cases and concludes that reform is desperately needed, but unlikely to occur.
In the Matter of the Human Fertilisation and Embryology Act 2008 (Case G)  EWHC 729 (Fam)
Deirdre Fottrell QC and Lucy Sprinz appeared on behalf of the applicant parent and Janet Bazley QC and Sharon Segal appeared on behalf of the children's guardian in the case of In the Matter of the Human Fertilisation and Embryology Act 2008 (Case G)  EWHC 729 (Fam) (6 April 2016) click here for link. This was another case in which the President made a declaration of parentage in circumstances where a fertility clinic had made administrative errors in the taking and recording of consent to parenthood. The President also considered the meaning of s.42(1) of the Human Fertilisation and Embryology Act 2008 and provided guidance as to the interpretation of the provision ‘unless it is shown that she did not consent’.
DB v DLJ  EWHC 324 (Fam)- Mostyn J on 24 February 2016.
Jeni Kavanagh acted as junior counsel in this significant case which considers the link between the Family Law Arbitration Scheme and the Arbitration Act 1996 and how that Statute fits in with s25 of the Matrimonial Causes Act 1973 and the Agreement cases in family law. The Court also reviewed the cases involving Barder events, Mistake and Due Diligence. Jeni led by Martin Pointer QC (1 Hare Court), successfully represented the applicant Husband in this case, in which the wife sought to resile from the arbitral award made following a 3 day Arbitration hearing, despite her having earlier signed the ARB1 agreeing to be bound by the decision of the Arbitrator. Mostyn J gave a full and comprehensive judgment on Husband’s notice to show cause application which can be read here http://www.bailii.org/ew/cases/EWHC/Fam/2016/324.html, in which he set out the history of Family Law in England and Wales and the Institute of Family Law Arbitration Scheme (IFLA scheme) and concluded:
“27…However I do agree with Mr Pointer QC that when exercising its discretion following an arbitral award the court should adopt an approach of great stringency, even more so than it would in an agreement case. In opting for arbitration the parties have agreed a specific form of alternative dispute resolution and it is important that they understand that in the overwhelming majority of cases the dispute will end with the arbitral award. It would be the worst of all worlds if parties thought that the arbitral process was to be no more than a dry run and that a rehearing in court was readily available.
28 My conclusion is this. If following an arbitral award evidence emerges which would, if the award had been in an order of the court entitle the court to set aside its order on the grounds of mistake or supervening event, then the court is entitled to refuse to incorporate the arbitral award in its order and instead to make a different order reflecting the new evidence. Outside the heads of correction, challenge or appeal within the 1996 Act these are, in my judgment, the only realistically available grounds of resistance to an incorporating order. An assertion that the award was "wrong" or "unjust" will almost never get off the ground: in such a case the error must be so blatant and extreme that it leaps off the page."
The Judge went on to say that the ARB1 should be amended to include reference to the limited grounds upon which a party can resile from an Award. He also gave guidance on how such an application should be dealt with in future. Any notice to show cause why an arbitration award should not be made an order of the court should be issued in the High Court, or if outside London before the Family Division Liaison Judge.
The court also held obiter that Barder applications no longer need to be made by way of appeal; they can be made to the original court.