Following another successful year for Halcyon Chambers, we are delighted to announce that Tony Muman continues to be ranked Counsel in both areas of Administration/Public Law and Immigration Law in the prestigious Chambers and Partners Bar Guide 2024, released today.
Chambers is also very proud to announce that both Jonathan Bott and Thomas Green of our family team have also achieved rankings for their work in Family and Children cases.
Tony Muman and Muhammad Ul-Haq represent the Claimants (Christine Lee and Daniel Wilkes) in the Investigatory Powers Tribunal.
The Judgment can be found here.
Article by Jamie Hughes
The Court of Appeal in FXF v English Karate Federation Ltd & Anor [2023] EWCA Civ 891 has determined and reiterated in no uncertain terms that the Denton principles apply in full to applications to set aside a default judgment.
It had previously been thought that this issue had been put to bed decisively by the Court of Appeal in a string of cases including Gentry v. Miller [2016] EWCA Civ 141. This principle was applied by the High Court in Redbourn Group Ltd v. Fairgate Development Ltd [2017] EWHC 1223 (TCC) and later by the Court of Appeal in Family Channel Ltd v. Fatima [2020] EWCA Civ 824 to the set aside of a judgment entered for non-attendance under CPR 39.3.
However, obiter comments made in Cunico Resources NV v. Daskalakis [2018] EWHC 3382 (Comm) by Andrew Baker J and the decision in PXC v. AB College [2022] EWHC 3571 (KB) cast some unusual doubt on the subject. In particular, in PXC, the abstract reference to the purpose of CPR 13.3 being “to promote justice” did not aid in providing clarity of thought.
Thankfully, FXF provides very clear (and hopefully definitive) authority on the point. The judgment provides a more detailed background of the law which it is not necessary to repeat here but is useful reading for practitioners. In analysing the law, the judgment reads:
“59. I hope that I have now dealt with all the truly relevant authorities. I have done so at some length, because they show a difference of approach that requires resolution by this court. As Birss LJ explained in argument, there are really three categories of case: (i) cases where the rule or order expressly provides for the sanction that will apply on non-compliance (e.g. failure to file witness statements on time), (ii) cases where the rule does not expressly state the sanction which applies for non-compliance, but permission of the court is needed to proceed (e.g. failure to file a notice of appeal on time), and (iii) cases where a further step is taken in consequence of the non-compliance, such as the entry of a default judgment (as in this case) or the striking out of a claim for non-attendance at trial.
61. This case falls squarely into Birss LJ’s third category, and I shall, therefore, concentrate on that category, and particularly on applications to set aside default judgments.
63. In my judgment, the Denton tests do, as I have said, apply to applications to set aside default judgments under CPR Part 13.3. There are a number of reasons for this.”
Providing the lead judgment, Sir Geoffrey Vos, Master of the Rolls, outlined five reasons for his determination that the Denton rules apply to setting aside a default judgment:
“64. First, just as Moore-Bick LJ held analogously in Hysaj, it is now far too late to depart from the position enunciated clearly by the Court of Appeal in Hussain, Piemonte, Gentry, and Family Channel. Piemonte was a default judgment case and decided expressly that the Denton tests applied. The words at [40] in Piemonte that I have just mentioned did not detract from that decision. “All the circumstances” and the overriding objective are directly relevant at the third stage of the Denton analysis.
65. Secondly, Matthews was not a case about setting aside a default judgment. Rule 26.7 of the Trinidad and Tobago CPR is in a different form from our CPR Part 3.9…CPR Part 3.9 was amended for the reasons and in the manner explained in Denton and Mitchell. It was intended to send a general signal to the legal community that there would be a “tougher, more robust approach to rule-compliance and relief from sanctions” in support of the revised overriding objective. This was the origin of the Denton tests deriving, as they do, from the express words of CPR Part 3.9. Accordingly, I do not think that this court would now be justified in preferring the reasoning in Matthews to that, taken together, in the 6 forceful decisions of this court in Hussain, Mitchell, Denton, Piemonte, Gentry, and Family Channel.
66. Thirdly, the Denton tests are actually peculiarly appropriate to the exercise of the discretion required once the two specific matters mentioned in CPR Part 13.3 (merits and delay in making the application to set aside) have been considered. The first two tests focus attention on the delay in complying with the requirements of CPR Part 15.2, which provides that “[a] defendant who wishes to defend all or part of a claim must file a defence”, and the third test brings into consideration all the circumstances of the case including the two critically important stated factors. What we said at [34] in Denton bears repetition:
Factor (a) makes it clear that the court must consider the effect of the breach in every case. If the breach has prevented the court or the parties from conducting the litigation (or other litigation) efficiently and at proportionate cost, that will be a factor weighing in favour of refusing relief. Factor (b) emphasises the importance of complying with rules, practice directions and orders. This aspect received insufficient attention in the past. The court must always bear in mind the need for compliance with rules, practice directions and orders, because the old lax culture of non-compliance is no longer tolerated.
68. Fourthly, as I indicated at [51] above, Gentry actually provides an example of how the exercise under CPR Part 13.3 and the application of the Denton tests ought to be undertaken. The merits are dealt with first at [28]. Next, the delay in making the application to set aside is dealt with at [29]-[35]. I turned then to consider the Denton tests, dealing with the pre-judgment delay and the excuses for it at [36], and “all the circumstances of the case, so as to enable [the court] to deal justly with the application, including [factors (a) and (b)]” at [37]. In some – perhaps many – cases, additional factors included in the overriding objective (or even other relevant factors) will need to be considered at this stage when the court is exercising its discretion. The relevant factors are not closed. What is critical, however, I can repeat once again for yet further emphasis, is the need to focus on whether the breach has prevented the court or the parties from conducting the litigation (or other litigation) efficiently and at proportionate cost, and the need to enforce compliance with rules and orders.
69. My fifth reason must be stated without it being meant to be unduly critical. The judges in Cunico and PXC seem to me to have adopted an unduly academic approach to the problem with which they were faced. The default judgment entered under CPR Parts 15.3 and 12.3 is obviously a sanction “imposed for any failure to comply with any rule”, in the sense that it would not have been granted if the defendant had filed its defence in compliance with the mandatory provisions of CPR Part 15.2. These decisions took an unduly nit-picking approach to what has been deliberately intended to change the culture of civil litigation. Parties to civil proceedings and their solicitors need fully to understand that flouting rules and court orders will simply not be tolerated.”
Thanks to the Court of Appeal’s helpful analysis of all previous authorities on the point as well as a very clear and rational conclusion, we should now hopefully be able to expect no further litigation on this question.
As bears remembering in all litigation, the judgment ends with a stark reminder from the Court of Appeal that “parties would be well advised to make absolutely sure that they comply with the rules in the CPR. They may expect no indulgence from the court if they do not.” It is clear the objective in applying the Denton principles to CPR 13.3 that the Court regards default judgments as serious and the Denton test will be applied in full force to any applications to set them aside.
Article by Trevor Berriman
As PPI disputes concerning undisclosed commissions following Plevin appear to be slowing in number, the Court will no doubt be seeing an increase in a new wave of claims focussing on secret commissions of the type seen in Wood v Commercial First Business Ltd and Others [2021] EWCA Civ 471.
In that case the Court of Appeal ruled that it was not necessary to find the existence of a fiduciary duty to grant civil remedies for the payment of a ‘bribe’ or ‘secret commission’. The case involved the services of a Broker who had been retained by a customer to source funding options and the court identified wide-ranging circumstances in which a borrower can recover a secret profit or rescind an agreement as a result of an undisclosed commission.
The judgment also considered and clarified the level of disclosure necessary for a commission to be deemed “half-secret”.
The background to the cases under appeal were similar and involved the use of the same broker. The Borrowers had obtained loans secured against their properties and, unbeknown to them, the broker had received commission from the lender. The commissions had not been disclosed to the Borrowers.
The Borrowers sought rescission of the loan agreements and the question arose as to whether the Lenders could be liable if there was no fiduciary relationship between the Broker and the Borrowers.
Wood held that it was not necessary for a fiduciary relationship to exist to find civil liability for the payment of bribes or secret commissions.
The question to be answered by the Court was whether the Broker was “under a duty to provide information, advice or recommendation on an impartial or disinterested basis”. The court also summarised it as “the duty to be honest and impartial”.
Remedies for bribery (or the payment of a secret commission) are available in both common law and equity. These remedies include:
The decision in Wood is likely to have wide reaching implications for lenders. There is a marked increase in the number of cases being brought by claimants seeking to apply the Wood principles to car finance agreements and even utility contracts where a broker/intermediary has been used.
Claimants and Defendants are expected to be at odds over the scope and reach of Wood, and time will tell whether such claims will result in bulk litigation in the coming months.
Article by Thomas Wheeler
A question frequently asked by Creditors pursuing bankruptcy proceedings, and Debtors trying to avoid a Bankruptcy Order, is whether a Court is likely to adjourn the hearing of the Petition.
Adjournment applications are usually made by Debtors who are seeking time to sort out their financial affairs, with a view to discharging the Petition debt and avoiding a Bankruptcy Order. Such applications are frequently opposed by Creditors who may have already been waiting a length of time to be paid, and who may doubt a Debtor’s ability to pay.
The case of State Bank of India v Dr Vijay Mallya [2020] EWHC 96 (Ch) is the authority to be relied upon when making or opposing an application to adjourn. This case was heard in the High Court by Chief Insolvency and Companies Court Judge Briggs who considered the previous authorities on the test to be applied.
The Court has a broad discretion as to whether to grant an adjournment application, as provided by s.266(3) Insolvency Rules 1986 which reads:
“The Court has a general power, if it appears to it appropriate to do so on the grounds that there has been a contravention of the rules or for any other reason, to dismiss a bankruptcy petition or to stay proceedings on such a petition; and where it stays proceedings on a petition, it may do so on such terms and conditions as it thinks fit.”
In the case of Re A Debtor [1920] KB 432 the Court identified at least three circumstances where an adjournment may be sought. First to remedy technicalities; secondly “to enable the evidence on either side to be fully heard and thirdly to enable the debtor in the event of his being able to do so, to satisfy [the Court] of his power to pay his or her debts in full.”
In line with earlier authorities, Mallya noted that to successfully obtain an adjournment, the Court would need to be satisfied that there was ‘a reasonable prospect that the petition debts would be paid in full within a reasonable time’.
The evidence before the Court will be of significant importance. A Debtor would need to demonstrate that he has the means to pay the Petition debts in full, and that such payment can be made within a period that the Court considers reasonable.
The authorities demonstrate a varied approach to what period may be considered ‘reasonable’, and the Court will consider all of the evidence to determine what is reasonable in the circumstances.
Whilst Creditors may be dissatisfied by the granting of an adjournment, their position is to a certain extent protected. The Court will not usually order repeat adjournments over a long period of time, the adjournment itself may result in the Petition debts being paid in full, and if the debt is not paid the Court is far more likely to make a Bankruptcy Order on the next occasion.
Debtors should be aware, however, that if a Petition debt is discharged by payment in full, there may be supporting creditors waiting to take over as Petitioning Creditor. A Debtor should therefore take steps to address all of his debts during the adjournment period.
Halcyon Chambers is delighted to announce that Barbara Gonzalez-Jaspe has accepted an offer of tenancy. This comes after her successful completion of pupillage under the supervision of Suzanne Hodgkiss.
During her Pupillage year, Barbara gained experience in several Chambers’ key practice areas including Family, Civil and Immigration Law.
Barbara’s practice will cover all areas of Chambers’ core specialisms and all enquiries in relation to Barbara’s work and availability to accept instructions should be directed to the Clerks.
Halcyon Chambers are now inviting applicants to join our clerking team.
Chambers operates from a modern and spacious office, located in Birmingham City Centre.
Successful applicants(s) will report to the Senior Clerk and will have undertake duties including:
Person specification:
The successful candidate(s) will have excellent communication skills (verbal and written), the ability to multi-task and operate within a fast-paced and demanding environment, and will be comfortable using their own initiative as well as working as part of a team. A confident and positive attitude is essential, and applicants must be well organised with attention to detail.
Previous work experience within a Barristers’ Chambers or professional client services environment is desirable.
Remuneration details:
All applications will be treated in the strictest confidence and should be emailed for the attention of the Senior Clerk, Chris Ridley via email at cridley@halcyonchambers.com
Halcyon Chambers is delighted to announce that Barbara Gonzalez-Jaspe has started her Second Six Pupillage under the supervision of Suzanne Hodgkiss.
Barbara is happy to accept instructions in Family and Civil Law.
Please contact the clerks on 0121 237 6035 or by email clerks@halcyonchambers.com for more information.
Halcyon Chambers are thrilled to announce Emma Weaver’s return to practice from maternity leave following the birth of her daughter.
Everyone at Halcyon Chambers welcomes Emma back to the Family Team where she will continue her practice.
If you wish to book Emma Weaver then please get in touch with the clerks on 0121 237 6035 or by email clerks@halcyonchambers.com
Halcyon Chambers is delighted to announce that Jamie Hughes has accepted an offer of tenancy. This comes after his successful completion of pupillage under the supervision of Trevor Berriman.
Jamie can be instructed over a wide range of practice areas. Please contact the Clerks to make any enquiries.
Article by Barbara Gonzalez-Jaspe
These appeals involve the deportation of foreign criminals and the tests used to determine if their expulsion from the UK would be unduly harsh on their families or if they satisfy the very compelling circumstances test to remain in the UK.
The two legal issues raised in these appeals are:
Unduly Harsh
The SSHD argued that the unduly harsh test requires a comparison which is to be made with “the degree of harshness which would necessarily be involved for any child faced with the deportation of a parent” as per KO (Nigeria) v SSHD [2018] UKSC 53; [2018] 1 WLR 5273 at [23]. Undue harshness is a harshness which goes beyond that. It was their submission that this ‘notional comparator’ provides a baseline against which undue harshness should be evaluated.
The SSHD further submitted that in disapproving of the comparison being made between the harshness of a ‘qualifying child’ (Nationality, Immigration and Asylum Act 2002 – s.117C(5)) to that involved for ‘any child’, the Court of Appeal departed from the settled approach set in KO (Nigeria) and thus lowered the threshold of the test.
In rejecting these arguments the Supreme Court said that Lord Carnwath in (KO Nigeria) cannot have been contemplating a notional comparator test for the following reasons:
The court clarified that the correct way to interpret and apply the unduly harsh test is by following the guidance in KO (Nigeria), namely the MK-Direction:
“… ‘unduly harsh’ does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. ‘Harsh’ in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb ‘unduly’ raises an already elevated standard still higher.”
However, the elevated standard is not to be as high as that set by the “very compelling circumstances” test (Nationality, Immigration and Aslyum Act 2002, s.117C(6)).
Very Compelling Circumstances
When considering whether there are very compelling circumstances which are over and above the two pre-existing exceptions (Nationality, Immigration and Asylum Act 2002, s.117C(4) and (5)) that permit a foreign criminal to avoid deportation the court looked to the relevant factors identified by the European Court of Human Rights (ECtHR) in Unuane v United Kingdom (2021) 72 ECHR 24 (which referred to their earlier decision in Boultif v Switzerland(2001) 33 EHRR 50 and Üner v The Netherlands (2006) 45 EHRR 14) include:
Rehabilitation
The court agreed that a full proportionality assessment is to be done when assessing individual cases. They also agreed that whilst it is common that rehabilitation of offenders is a relevant factor, it often holds little weight. However, the Supreme Court specified that if there is evidence of positive rehabilitation which reduced the risk of further offending then some weight can be afforded to this. This is supported by the Strasburg jurisprudence set out above.
Seriousness of the Offence
Another question for the court is how the seriousness of an offence is to be assessed. The court recognised that a sentence often reflects various considerations alongside the seriousness of the offence. This includes credit for an early guilty plea, whether the Applicant is the primary or secondary in the commission of an offence and any other mitigating factors that are specific to the offence, including being of good character.
The court held that if the decision maker has sight of the sentencing remarks which explains what factors, unrelated to the seriousness of the offence, influenced the sentence then this too can be taken into account when assessing the seriousness of the offence. It also recognised that an early guilty plea may be relevant to the consideration of rehabilitation but does not impact seriousness of the offence.
The second issue raised is whether it is ever appropriate to place weight on the nature of the offending as well as the sentence imposed. The court held that although this is a relevant consideration, it must be done with caution so as to not double count.
Summary
The Supreme Court has reiterated the correct tests which are to be used when making determinations of deportation. It is evident that from the judgement that cases need to be looked at on an individual basis and having a baseline standard is not workable as there are so many moving parts. This judgement is another example of how a one size fits all approach cannot be taken to cases that involve the right to private and family life.
The Supreme Court further recognises that there are various factors that influence an offenders sentencing that rehabilitation is a relevant factor if there is positive evidence to support it. The ECtHR has provided a list of relevant factors that will assist the courts in better determining when the very compelling circumstances test has been met.
Article by Steven Evans
Halcyon Chambers’ Family Team recently represented a parent in care proceedings concerning allegations of abuse made by a child (15). Contrary to the child’s strong wishes, the Court determined that shewould not give oral evidence because it would not be in her ‘best interests’.
Eleven years on from Re W [2010] and the subsequent Working Party of the Family Justice Council guidelines, the Family Court remains unable to reconcile the ‘best interests’ principle and children’s participation in care proceedings. This is caused by regressive attitudes towards children giving evidence and the inadequate ‘special measures’ legislation available to the Family Court.
Part 3A of the Family Procedure Rules implemented guidance for the participation in proceedings and giving evidence by ‘vulnerable persons’. However, Part 3A only applies to children to the extent that they are witnesses and does not require the court to determine whether the participation of a child in proceedings is likely to be diminished by reason of vulnerability.
The court has the power to control evidence in family proceedings and to provide directions as to how evidence is to be presented to the court, although these provisions only apply to ‘special measures’ available at common law to children and vulnerable witnesses and do not extend to Rule 3A.8(1).
Therefore, ‘special measures’ for children derive from common law principles characterised by the Youth Justice and Criminal Evidence Act 1999 (“the YJCEA 1999”).
In addition, there are two conditions which must be satisfied before the court has power to order ‘special measures’ in family proceedings under Part 3A. Firstly, there must be an assessment of the witness and secondly, funding must be available to provide the ‘special measures’.
In criminal proceedings the Crown Prosecution Service can fund assessments and ‘special measures’, whereas Rule 3A.8(4) states “nothing in these rules gives the court power to direct that public funding must be available to provide a measure”. The lack of funding acts as an additional barrier to children giving evidence in care proceedings.
The Family Justice Council summarised the inadequate implementation of Part 3A in 2019 by stating “there is as yet only limited understanding as to how FPR Part 3A and PD 3AA are operating in practice. However, the Family Justice Council domestic abuse working group has been made aware… of the patchy and inconsistent implementation of these provisions”. The result if that ‘special measures’ for children are rarely used in care proceedings.
Comprehensive legislation in criminal proceedings has allowed children and vulnerable witnesses to give their ‘best’ evidence and ensure that hearings are fair. Whilst the Family Courts have adopted these principles by way of common law, a YJCEA 1999 equivalent does not yet exist.
New and comprehensive ‘special measures’ legislation is required to allow children to properly participate in decisions which have the gravest consequences to their lives.
It must go further than Part 3A by ensuring the Court has the power to order public funding is available for both the assessment and provision of ‘special measures’ in all cases involving children giving evidence.
However, ‘special measures’ legislation will be redundant unless lawyers and other professionals depart from the presumption against children giving evidence on grounds of age, immaturity and emotional harm.
It has been a long time since Re W [2010], yet we are no closer to allowing children fair and proper opportunity to participate in proceedings.
Article by Jamie Hughes
A reform of the ‘no-fault’ eviction process has been mooted by the government for some considerable time. Landlords anxiously awaited news of what, if any, process would replace it if this key remedy is taken from them. Meanwhile, tenants awaited news of whether they would be provided greater security against landlords
The current process – The landlord’s backstop
s.21 of the Housing Act 1988 allowed landlords to seek possession of a property which was let on an assured shorthold tenancy on two months notice, either on a contractual break date or following the expiry of the fixed contractual term. Under this procedure, the landlord would not need to point to any particular ground for possession other than the fact the term has expired.
Landlords often viewed this as their backstop security measure for regaining their property when they could not make out any of the other statutory grounds. However, the government and housing charities have long sought greater security for those who rent on a private basis and adhere fully to their own obligations under the tenancy.
The suggested reforms
In the Fairer Private Rented Sector White Paper (16 June 2022) the Government set out a 12-point plan for reforming the private rental sector. Of these, two specifically affect the grounds for possession:
“3. We will deliver our manifesto commitment to abolish Section 21 ‘no fault’ evictions and deliver a simpler, more secure tenancy structure. A tenancy will only end if the tenant ends it or if the landlord has a valid ground for possession, empowering tenants to challenge poor practice and reducing costs associated with unexpected moves.
4. We will reform grounds for possession to make sure that landlords have effective means to gain possession of their properties when necessary. We will expedite landlords’ ability to evict those who disrupt neighbourhoods through antisocial behaviour and introduce new grounds for persistent arrears and sale of the property.”
As part of the abolition of s.21, the government intends to move all tenants who previously had Assured Tenancies or Assured Shorthold Tenancies onto periodic tenancies. It is suggested by the Government that this will “level the playing field between landlord and tenant”. Six months after giving notice, all new tenancies will be periodic and governed by the new rules and twelve months after the notice, all existing tenancies will be converted to periodic.
To balance the removal of section 21, the government has suggested it will strengthen the existing grounds for landlords to seek possession. This will include new grounds for landlords who wish to sell their property or utilise the property for themselves and their close family members. These two new grounds will be prohibited during the first six months of a tenancy, in the same way as s.21 operates.
A new mandatory ground will be created for repeated serious arrears. If a tenant has been in at least two months’ arrears three times within the previous three years, possession will be mandatory, regardless of the balance at the hearing. This will prevent the very common cycle landlord face of arrears increasing and then being cleared shortly before the hearing, often preventing possession if no other grounds can be made out. The notice period for existing mandatory rent arrears ground will also be extended to four weeks.
Landlords v Tenants – Who wins?
The exact structure/content of the intended legislation is currently unknown and will no doubt be scrutinised heavily by both sides of the private rent sector once it is published. It is hoped that the proposed changes will strike a fair balance between the competing interests of landlords and tenants. Whether this can ever be achieved in reality is yet to be seen.
Article by Tony Muman
On 13 April, the Secretary of State announced that the UK had entered into an agreement with the Republic of Rwanda with terms recorded in a Memorandum of Understanding.
The position of the UK government is that those who are seeking asylum in the UK having travelled through a safe third country arriving by dangerous and illegal means can have their claims ruled ‘inadmissible’ and removed to Rwanda, which is in the government’s view a ‘safe’ country, for their asylum claim to be considered, and where they will remain regardless of the outcome.
The proposals have caused outrage – not least because of the secretive nature and speed at which it has been implemented. The government have been scrambling for ideas to appear tough on asylum, and this policy is the latest in a long line of ideas designed, it is said, to deter those coming to seek refuge in the UK from dangerous and illegal travel. This policy follows on from a decade of hostile environment that the government has created for immigrants.
The criteria for those eligible for relocation have been kept a closely guarded secret, however, the Home Office’s Equality Impact Assessment analysed data from 2020 which stated that 74% of those arriving by such means were aged between 18-39, 87% were male and made of a specific group of nationalities.
Since the Brexit transition period ended (31 December 2020) there have been no bilateral agreements made between the UK and other EU member states. The result of which is that the UK is now unable to return asylum-seekers to other EU member states. The Rwandan removals policy is a knee jerk reaction to this problem.
Legal opposition to this policy was expected by the Home Office and as a result, they had attempted to take swift action by scheduling a charter flight to Rwanda on 14 June 2022. The flight was grounded after the European Court of Human Rights granted an injunction.
The cost of implementing this policy has been an initial £120 million as part of an “economic transformation and integration fund” but UK taxpayers will be paying for operational costs of each individual alongside this.
There is no clear evidence that this policy will deliver value for money, nor is there any evidence to support the idea that it will succeed in its deterrent effect. To the contrary, there is every indication that the policy unlawfully penalises asylum seekers based on their route of journey and mode of arrival in the UK.
The legality of the Rwanda policy will be fully argued in UK High Court next month. Today’s directions hearing will ensure the case is ready for then.
Halcyon Chambers’ Public Law specialists Ramby De Mello & Tony Muman are instructed in one of the eight claims selected by the Court as lead test cases.
Halcyon Chambers is delighted to announce that Muhammad Ul-Haq begins his secondment to the High Court of Justice in London as a Judicial Assistant assigned to the Queen’s Bench Division.
Everyone at Chambers wishes Muhammad the best and look forward to him returning to practice in August 2022.
Article by Barbara Gonzalez-Jaspe
The amendments to the law on divorce have been long overdue and signifies the biggest change to divorce law in decades. The overriding objective is to allow parties to separate with dignity and without needing to place blame where it does not squarely fall on one side or either.
The Blame-Game
The previous law on divorce did little to help the stereotypical view most people have of a warring couple in court. To many it wasn’t the fuel added to the flame but the cause of the whole problem. Couples who had decided they no longer wanted to be married had the following options available to them:
One party had to accuse the other of desertion, adultery or unreasonable behavior. If none of the above applied, they had to spend two years apart if both parties agreed to the divorce, or 5 years apart if one party objected.
This led many couples having to assign blame in order to divorce within a reasonable time. For those who couldn’t play the blame-game, they had to remain together for two years which prolonged disagreements over finances and children. Both situations often caused unnecessary animosity between those who had equally decided their marriage was over. The previous law also forced parties who wanted a divorce to remain in a marriage for up to five years if their ex refused to accept they wanted a divorce.
Divorce, Dissolution and Separation Act 2020
From the 6th April 2022 couples who wish to split amicably are able to do so and removes the ability to make allegations about the conduct of a spouse which is often deeply personal.
One or both parties can file for a divorce by making a statement their marriage is over. There is a minimum 20 week period between the initial commencement of proceedings and making an application for a conditional order (formerly Decree Nisi), a further 6 weeks later the divorce is then granted in a final order (formerly Decree Absolute). The courts will still be involved to resolve any contested issues with respect of finances, children, division of assets and maintenance but the personal reasons for the split remains between the couple.
This new law allows for those who wish to part ways to do so without becoming enemies for life when they simply just want to move on. It also allows for children to be protected from warring parents and gives dignity and autonomy to those who are leaving an unhappy, abusive or controlling relationship by preventing the other from opposing the application.
Ultimately this change in the law has been welcomed by family lawyers and those seeking to divorce quickly and/or on good terms. It is hoped this will go some way towards alleviating some of the unpleasantness of divorce and its positive impact to filter across other areas of family law.
Article by Naomh Gibson
The Teaching Regulation Agency (‘TRA’), is an executive agency of the Department for Education (‘DfE’), responsible for regulating the teaching profession in England. The TRA investigates cases of serious teacher misconduct and decides whether to refer a case to a professional conduct panel, who may make findings and, if appropriate, recommend to the Secretary of State to impose a prohibition order.
The DfE is considering whether to broaden the scope of the TRA’s powers. They are now in the second stage of its consultation on the proposed changes.
What are the proposed changes?
The TRA is proposing the following changes:-
How would this affect me as a Teacher?
If you are an individual who is not currently working as a teacher or is between jobs (e.g. those on a career break or teaching infrequently, or supply teachers between jobs), any alleged misconduct you engage in during this time can be referred to the TRA. There is no limit planned for the length of time that may have passed since someone last worked in schools.
There is an added difficulty by the fact there is currently no method that an ex-Teacher can ‘de register’. If someone has qualified as a Teacher, they are presumed able to return to the classroom at any time.
There is a concern that if not properly considered and implemented, those who have worked as a Teacher some time ago with no intention of returning to the classroom may be facing regulatory proceedings, with all the accompanying stress and cost.
The changes to include FE colleges and other higher education facilities is likely to be welcomed, unless you are an individual who works with adults in these facilities, not children. It remains to be seen whether the proposed changes will be drafted carefully enough to exclude people in higher education settings who don’t work with minors.
At present, the TRA has to wait for a complaint from an employer or member of the public before they can look into a referral. The DfE does not allow ‘self-referrals’ from their own agencies.
If this changes, you may also be facing a TRA referral where your conduct has been subject to scrutiny by DfE officials elsewhere other than the TRA, for example by the ESFA (the Education and Skills Funding Agency) which conducts academy audits, or the STA (the Standards and Testing Agency) which looks at examination administration.
This could result in an individual being targeted by multiple DfE agencies at one time, even where no complaint is made by your employer or pupil-parent.
What can I do about this?
If you would like to engage in the consultation, you can do so online: www.education.gov.uk/consultations
The results of the consultation and the Department’s response will be published on GOV.UK in Spring 2022.
If you are facing an investigation or a professional conduct panel and would like assistance, Naomh Gibson is available for instruction. Naomh has experience as a Presenting Officer for the TRA which gives her invaluable insight into defending Teachers. You can contact Naomh’s clerks on 0121 237 6035 or clerks@halcyonchambers.com.
Halcyon Chambers is pleased to announce that Barbara Gonzalez-Jaspe has joined Chambers as a new Pupil commencing 4 April 2022.
Barbara is currently undertaking a mixed common law pupillage with a focus on family law under the supervision of Suzanne Hodgkiss.
This is in addition to Jamie Hughes and Steven Evans who have recently commenced their Second Six Pupillage on the 1 March 2022 and 28 March 2022 respectively.
Everyone at Halcyon Chambers wishes them all the best in the forthcoming months.
Article by Shabinah Ladha
In both Islam and Judaism in order to remarry a woman must obtain a religious decree of divorce; under Jewish law, the Get, and under Shari’a a Talaq, Khul or Mubaraat. If the woman is not religiously divorced, she will remain married under religious law and in the eyes of her community. As a result any marriage under civil law is regarded as adulterous and future offspring will be considered illegitimate.
Capricious Muslim husbands might divorce their wives under English law but will not pronounce Talaq thus preventing their wives from remarrying which is often known as a ‘limping marriage’. In Judaism a recalcitrant husband may refuse to give his wife a Get preventing the Jewish marriage being dissolved resulting in what is known as ‘chained wife’. These husbands weaponise divorce to grant or withhold divorces in order to negotiate favourable financial settlements, or contact and custody issues relating to children of the family.
The Divorce (Religious Marriages) Act 2002, inserted a new section into the Matrimonial Causes Act, 1973, which came into force in 2003. This new section recognises ‘limping marriages’ within the Jewish community. Section 10A allows either party to the marriage to apply for the decree absolute to be made only after steps have been taken to deliver the Get. The purpose of this is to ensure that a person who obtains a divorce in the civil courts is also regarded as divorced by his or her religious community, and therefore free to remarry and therefore no longer ‘limping’ or ‘chained’.
Other religions may seek to be ‘prescribed’ within the legislation. To achieve such prescription the Lord Chancellor must issue an order after prior consultation with the lord Chief Justice, and such an order must be made by a statutory instrument. To date, however, Islamic divorce is not included.
The Domestic Abuse Act 2021 was given Royal Assent in April 2021. The draft statutory guidance on domestic abuse published in July 2021 recognises withholding a religious divorce as constituting a form of domestic abuse, namely “controlling or coercive behaviour”.
The Guidance under the heading Religious marriage and divorce sets out the following:
It is hoped that the effect of these new provisions is that women who are trapped in a marriage as a result of their husbands refusing to grant them divorce are recognised as victims and the Act provides some steps towards redress and opens the door for further changes in legislation and understanding of ‘limping marriage’. In practice it remains to be seen how these provisions will be received and work in practice once the Act is fully in force.
Article by Shabinah Ladha
Archaic
Every day I receive correspondence addressed to me as “Dear Sir/s”. This male address is an accepted standard which is still used by law firms, the court service and barristers’ chambers.
To me this greeting is a relic of a time when women, and those identifying as female, were a minority within the legal field and, at worst, not welcome within it. Women are no longer a marginal group in this profession thus it should follow that the practice of assuming male identity as a default is no longer appropriate.
What we should be doing is using a person’s preferred gender pronoun, or a gender-neutral alternative. In doing so we acknowledge a person’s identity, are respectful, inclusive and courteous.
Why Change?
We have to think about the language we use as it reveals the assumptions and decisions being made. “Dear Sirs” makes the assumption that the recipient is a male, and again, fails to give regard to the actual recipient. Using this address when you know the recipient, could be seen as a micro-aggression if you are on opposing sides, it can also signal regression and laziness to properly address the recipient.
The lady Judge who presided over my matter this morning told me that she is constantly referred to as ‘he’ when her Judgments are quoted. Surely, we are passed the belief that there is no place for female Judges and practitioners in our midst? If we have, then why are we failing to properly address women when it comes to such basic issues of correspondence?
Taking the time to amend standard letters and legal precedents in contracts, leases and court orders shows courtesy, gender equality and takes into account our duty not to discriminate.
The BSB Handbooks lists ‘You must not discriminate unlawfully against any person” as a core duty and also, tells us to treat each client with courtesy and consideration, which must also apply to colleagues, opposing lawyers and everyone in general.
Change Matters
The legal profession is well aware that language, communication and words matter. If we want an inclusive profession but continue to use language that is gendered we will continue to exclude a large part of the profession.
Changing language is often a precursor to larger, systemic changes and further steps to purging this profession of sexual harassment, gender bias and under representation of women at senior levels such as heads of chambers, benchers, within committees, law firm partners and within the judiciary.
It is time to ditch Debretts, break the bias and start using a person’s preferred gender pronoun, or a gender-neutral alternative. In doing so we acknowledge a person’s identity, are respectful, inclusive, courteous and not discriminatory.
So then what should we use instead, well, if in doubt, just ask!
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