Talking Family Law - The Resolution Podcast

Simon and Anita were privileged to be invited to speak at Resolution’s annual Financial Advisors conference. They were joined by Steve Hennessy (Beeswax Wealth Management) and Angela Lake-Carroll (ALC associates) to discuss how financial advisors see economic abuse in their day-to-day work with families. The full detail of the discussion is in The Review in an article by Shalini Kanap (Her Financial Planning): https://resolution.org.uk/the-review/current-issue/talking-family-law-live-podcast-recording/ We did take two Slidos in the room in the room which verified what we all expected that Financial Advisors frequently see one party restricting the other party’s access to information about the finances when they separate, and that they frequently see delaying/ avoidance tactics when it comes to implementing pension shares. We hope this podcast was part of the start of the Financial Advisors coming together to look at how they can protect their clients from on-going abuse.

On the 22nd October 2025, it was announced that the government is going to repeal the presumption of parental involvement in s1(2A) of the Children Act 1989. Our hosts Simon Blain and Anita Mehta, ask Mary McKaskill (National Centre for Social Research), Natalie Sutherland (International Family Law Group LLP) and Sarah Williams (Forsters) about what the research to support that change shows and what it means in practice.Natalie reminds us that the recommendation to review this section appeared in the Harm Report from June 2020. The MOJ announced that there would be a review in November 2020 and this is the report.The review of the presumption of parental involvement involved three research projects commissioned by the MOJ. Mary was the Lead Researcher in the team that undertook the judgment analysis. They reviewed 245 judgments from eight courts including one in Wales. There was also a literature review of academic papers and grey literature by Alma Economics and qualitative research in the form of interviews with Black, Asian and Ethnic minorities by the Race Equality Foundation. The MOJ report Review of the Presumption of Parental Involvement: https://assets.publishing.service.gov.uk/media/68f5f5c206e6515f7914c7e3/Review_of_the_Presumption_of_Parental_Involvement_Final_Report_.pdfMary was clear that the judgment analysis had to grapple with challenges such as variability of data, lack of accessibility, struggling to find records of the actual judgment, the detail of the specifics of the order or how a specific decision was reached. There is also always a risk of bias or that certain experiences were not captured given this was a sample. Nevertheless, the report does find:More times than not, some form of child arrangement is ordered. The report found that the courts did follow a ‘no stone unturned’ approach to foster involvement with both parents even where there was found to be a risk of harm.That it was not possible to understand from the study what weight the presumption had in decision making.However, involvement was almost always ordered, even where there were risks, so the report expresses concern that this is in contradiction with the child’s welfare.The report was unable to explore the long-term impact of the orders that are being made, which would require a longitudinal study.Natalie and Sarah go on to discuss the impact of this report, together with the review of the first pathfinder pilot, ‘Understanding the Experience of Children and Families’ https://assets.publishing.service.gov.uk/media/695544d06a4ea67a402a839c/Private_Law_Pathfinder_Pilot.pdfNatalie noted that in the review of Pathfinder, there were parents who appreciated the efficiency of Pathfinder, but others who felt they had not been heard. Sarah was concerned that Pathfinder is dependent on support being provided from charitable partners and that is dependent on their availability. Natalie considered whether the removal of review hearings has had an impact on outcomes, and whether this should have remained part of Pathfinder.Mary concludes by telling us that the report found that the voice of the child is not heard in private law proceedings. The finding was that children’s voices were amplified when they agreed with the Court, i.e. wanting contact but diminished when they did not.In/Fertility in the City – Natalie’s podcast with Somaya Ouzzani, can be accessed on their webpage: https://infertilityinthecity.com/.

The Inheritance (Provision for Family and Dependants) Act 1975 received royal assent on the 12th November 1975. We celebrate its 50th birthday with Emily Roskilly (Roskilly & Co) and Alexander Learmonth KC (New Square Chambers).Everyone needs a broad hinterland behind their specialist practice. Therefore, it is no good being a family practitioner and not knowing your way around the Inheritance Act, because at some point we will be acting for a family where one of the litigants dies. This podcast will tell you all you need to know!Alex tells us who can be in the category of claimants in s1 of the 1975 Act, and the Court’s powers in s2 which are very similar to the Court’s powers on divorce although there are no powers to make orders in respect of pensions. Alex refers us to the Law Commission report ‘Second Report on Family Property: Family Provision on Death" (Law Com No 61)’ which indicates that the Act was intended to make sure spouses were treated the same on death as they would have been on divorce.Emily tells us that the focus of the test for an award in respect of spouse or cohabitee is the statutory test of what is a reasonable financial provision. For a spouse, s1(2)(a) provides that this means such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance. For civil partner claims the same applies. For cohabitees and others such as adult children, s1(2)(aa) and s1(2)(b) provide that reasonable financial provision means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his or her maintenance.These claims can be brought in the County Court, or in the High Court either in the Family Division or the Business and Property Courts. There remains an anomaly that they cannot be issued in the Family Court, although the Family Division may assign them to an FRC Judge. The effect of having a choice of Court means that you need to think about which Court is likely to lead to a better outcome for your client.Emily draws our attention to the relevant factors that the Court has to consider in s3. Both Alex and Emily agree that conduct is rarely relevant in these claims and it must be gross and obvious.Emily then goes on to tell us about the different provision for spouses or civil partners and cohabitants in these cases. Cohabitees need to have been living with the deceased for two years immediately preceding death and living together as though husband and wife or civil partners.Alex and Emily wrestle with whether prenups would be given weight and conclude that as a matter of principle they would be, with the same caveats that would be applied in the divorce court. We also discussed Cohabitation Agreements, and Emily noted that if it was a long term cohabiting relationship and there was a historic Cohabitation Agreement, although it would show intention or wishes, she could not see it being a closed door for the potential applicant.

To start our season with a bang, we are joined by Natasha Watson, Head of Law in Brighton & Hove City Council, and Darren Howe KC, 1 Crown Office Row Brighton, to discuss covert recordings and tracking devices. Natasha was a member of the Family Justice Working Group who developed the Family Justice Council guidance into covert recording: https://www.judiciary.uk/related-offices-and-bodies/advisory-bodies/family-justice-council/resources-and-guidance/covert-recordings-in-family-law-proceedings-concerning-children/. Note, Natasha joined us in her personal capacity today and was not speaking on behalf of the Family Justice Council. At the outset, Natasha reminds us of the words of then Mr Justice Jackson as long ago as 2016 about recordings in M v F (Covert Recording of Children) [2016] EWFC 29 https://www.bailii.org/ew/cases/EWFC/HCJ/2016/29.htmlIt is almost always likely to be wrong for a recording device to be placed on a child for the purpose of gathering evidence in family proceedings, whether or not the child is aware of its presence. This should hardly need saying, but nowadays it is all too easy for individuals to record other people without their knowledge. Advances in technology empower anyone with a mobile phone or a tablet to make recordings that would be the envy of yesterday’s spies. This judgment describes the serious consequences that have arisen for one family after a parent covertly recorded a child in this way.Covert recordings are a form of hearsay evidence, which is why the evidence is not automatically admissible. Natasha and Darren wrestle with where the balance will fall when the Court is considering the abuse of privacy and potentially abusive nature of the recordings, set against the fact that this form of evidence can be determinative of particular fact. They advise that you need to ask yourself:whether the recording is relevant to one of the disputed issues in the case?is the recording reliable or could it have been modified?what is proportionate to be admitted as evidence.They caution us to consider the context of the recording and the completeness of the recording, when considering what the recording prove. Natasha draws our attention to Appendix 3 of the guidance which provides a useful summary of the Court’s approach. In respect of recordings of children, the issue is about whether interviews by an adult (well-meaning or not) that has an influence on what the child says. The result is that the Court cannot accept the reliability of what was said. We discuss how the recording has often already been taken before lawyers are instructed, which results in the client providing a recording that they think proves their case, but you take the view may in fact have a detrimental impact on their case. Darren reminds us all of our duties of full and frank disclosure, and specifically the guidance from the Bar Council on ‘Disclosure of Unhelpful Material in Family Proceedings (Children)’ https://www.barcouncilethics.co.uk/wp-content/uploads/2017/10/disclosure-of-unhelpful-material-1-1.pdf Darren draws our attention to the judgment of HHJ Middleton-Roy in Re TQC, (Domestic Abuse: Findings) [2024] EWFC 279 https://www.bailii.org/ew/cases/EWFC/OJ/2024/279.html As technology has advanced, so has the ease by which tracking devices can be installed on mobile devices. The evidence of both parties in this case suggests that both parties consented to an app being downloaded to their respective devices so that they could monitor the movements of the other party. The evidence in this case leads the Court to the conclusion, however, that the father used the tracking app on the mother's mobile device as part of a pattern of behaviour designed to deprive the mother of the means needed for her independence. Darren reminds us that digital evidence is not as reliable as it used to be and the glitches, flaws, splices, chops. We conclude with a discussion about whether the time has come for all meetings with professionals to be recorded.

This month we are joined Anna Lintner (Maitland Chambers) and Gareth Schofield (Clarke Willmott) to discuss the interconnection between bankruptcy and financial remedy cases. For this episode, Anita is joined by guest host, Matthew Taylor (Stowe Family Law) who is a member of Resolution’s Pension, Tax and Financial Remedy Committee. Matthew is an experienced podcaster as one of the presenters of Stowe Talks https://www.stowefamilylaw.co.uk/stowe-talks/ We have called this episode ‘The Final Frontier’ because, for most of our practice, we do not need to know about bankruptcy. Then suddenly you get a case where one of the parties is about to declare themselves bankrupt, or is already bankrupt, and suddenly you need to know all about this unexplored area. Gareth mentions that he was one of the authors of Debt and Insolvency on Family Breakdown; https://www.abebooks.co.uk/book-search/title/debt-insolvency-family-breakdown/author/wendy-boyce/ and refers us to some of the key cases where family law and insolvency law interact being:Ball v Jones [2008] 2 FLR 1969 - where the Trustees in Bankruptcy was unable to challenge a consent order which had allowed the non-bankrupt to retain a much greater share of the assets;Haines v Hill and Another [2007] EWCA Civ 1284 - which is a Court of Appeal authority about how family law and insolvency work where consent orders are in place;Whig v Whig [2007] EWHC 1856 and Paulin v Paulin [2009] EWCA civ – in respect of annulling a bankruptcy;and Paulin v Paulin [2009] EWCA civ 221 – annulment cases with family law context and the risks of taking on a trustee in bankruptcy.Anna tells us the important rule we must know about in bankruptcy is the pari-pasu rule, which means all unsecured creditors must be treated equally, which includes the bankrupt’s award in financial remedy proceedings. Anna tells us that the Trustee in Bankruptcy cannot compel the bankrupt to draw their pension so that maybe one asset that can be preserved (Horton v Henry [2016] EWCA Civ 989) We conclude with the importance of thinking about drafting and enforcement where there is a prospect of bankruptcy after the final financial remedy.

This month we are joined by the Law Commissioner, Professor Nicholas Hopkins (who led the scoping report), Emma Hitchings, Professor of Family Law at the University of Bristol (who led the Fair Shares reports), and Resolution’s Family Law Reform Group chair, Jo Edwards of Forsters LLP. The Law Commission has found (in its scoping report published in December) that the current law does not provide a cohesive framework in which couples going through a divorce or dissolution of a civil partnership can expect fair and sufficiently certain outcome. In particular they found that the law lacks certainty and accessibility to the extent that it could be argued to be inconsistent with the rule of law. They concluded that the law needs reform. We discuss:The Law Commission Scoping report: https://lawcom.gov.uk/publication/financial-remedies-scoping-report-and-summary/The Fair Shares Project: https://www.bristol.ac.uk/law/fair-shares-project/And of course Resolution’s own Vision for Family Justice: https://resolution.org.uk/campaigning-for-change/vision/ and our Domestic Abuse in Financial Remedy work https://resolution.org.uk/wp-content/uploads/2024/10/Resolution_DAFRP_Report_ONLINE.pdf Emma and Jo joined us when the first Fair Shares reports were published in 2023. Do listen to our previous episode in Season 3 episode 6: which explains the detail and data in those reports. We talk about spousal maintenance, and that whilst a lot of discussion has been devoted to the term of spousal maintenance, in fact it is the quantum that causes most uncertainty. Emma tells us there are twice as many spousal maintenance orders made in London than all the other regions combined. There seems to be a legitimate explanation for the ‘London difference’ in the higher costs of living in London. The Law Commission found that conduct is an additional source of unfairness that victim-survivors face in how financial remedies are determined. Emma tells us that the Fair Shares research found that domestic abuse survivors were less likely to reach agreement than divorcees where there has not been abuse, very few domestic abuse survivors successfully used mediation, and that 14% will ultimately have their claims determined by a judge, compared to only 4% of financial remedy cases that do not involve domestic abuse. The Fair Shares research found that female domestic abuse survivors are in a poorer financial position than other female divorcees. Jo told us about the incoming Australian legislation that will see family violence taken into account when determining parties’ contributions to the marriage as well as the Resolution position on the Law Commission report/financial remedies reform The Law Commission found that there is still real concern that pensions are not sufficiently taken into account. The reality is that position has not changed that wives often keep a greater share of the home to accommodate the children, and the husband tends to retain his pension. Should there be a default of equal pension sharing? Finally we discuss the four models of potential reform. If you are still making your mind up about which model should be the foundation of any reform then this episode is invaluable!

We are joined by Joseph O’Brien of St Johns Buildings and Laura Flanagan of Burgess Mee to discuss how to manage cases that involve capacity issues. Laura has recently co-authored an article with Maisie Lockyer on this issue:https://financialremediesjournal.com/content/family-proceedings-and-litigation-capacity.ec7c993244094031bbcb75338ef9c29e.htmUnfortunately, court commitments meant Maisie was unable to join us for the recording.Joe tells us that the Mental Capacity Act 2005 is the basis on which all capacity assessments should be undertaken. He reminds us that there is a presumption of capacity, but the presumption of capacity can be rebutted. The test is set out in s.2(1): 2. People who lack capacity(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.Laura directs us to the Official Solicitor’s website, which includes guidance notes and the pro forma for the Certificate as to Capacity: https://assets.publishing.service.gov.uk/media/63e3b03ad3bf7f172ccae151/capacity-to-conduct-proceedings-certificate.pdfJoe reminds us that capacity involves a two-stage test: the first stage considers whether the person is unable to make the decision, and the second examines whether that inability is caused by an impairment of the mind or brain, as per A Local Authority v JB (Rev1) [2021] UKSC 52 https://www.bailii.org/uk/cases/UKSC/2021/52.html We also discuss what should happen when the protected parties have fluctuating capacity. Laura and Joe remind us that you need to make an application to terminate the appointment of the litigation friend if your client regains capacity, but you must apply for the litigation friend to be reappointed if they lose capacity again. Finally, we discuss how the Court makes the decision about whether the protected person should give evidence. Joe reminds us of the practice direction on participation of vulnerable witnesses https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/practice-direction-3aa-vulnerable-persons-participation-in-proceedings-and-giving-evidence#1

This episode is a strong start to the year. It is essential listening for all professionals working with separating families. We are joined by Jenny Beck KC (Beck Fitzgerald) , Dr Jamie Craig (Consultant Clinical Psychologist) and Zoe Fleetwood (Mills & Reeve) to discuss children that are reluctant, resistant or refusing to see the other parent, as well as parents engaging in psychological manipulation of their children by alienating behaviour. We examine the Family Justice Council guidance in this area. The report is both erudite and succient at only 30 pages long and should be read by everyone involved in this field:https://www.judiciary.uk/wp-content/uploads/2024/12/Family-Justice-Council-Guidance-on-responding-to-allegations-of-alienating-behaviour-2024-1-1.pdf Zoe reminds of what has happened in the last 10 years to lead us here from PD12J, to the presumption in favour of a parent’s involvement which was inserted into the Children Act in 2014, LASPO which removed legal aid, the Domestic Abuse Act, Re HN , RE C [2023] EWHC 345 (Fam), Re S (Parental Alienation: Cult) : [2020] EWCA Civ 568 https://www.judiciary.uk/wp-content/uploads/2020/04/re-s-a-child-judgment290420.pdf, the Harm report from 2020, and the Domestic Commissioner’s Abuse Commissioners report of 2023https://domesticabusecommissioner.uk/wp-content/uploads/2023/07/DAC_Family-Court-Report-_2023_Digital.pdf. Zoe concludes with the case of Re (Parental Alienation: Factual Findings) [2024] EWFC 75 which maybe an example of the Court starting to change coursehttps://www.bailii.org/ew/cases/EWFC/OJ/2024/75.html Jenny reminds us that there are three elements that a Court needs to find before concluding there have been alienating behaviours:There must actually be a child who is reluctant, refusing or resistant to engage in a relationship with a parent;That reluctant, refusal or resistant must be as a result of something other than appropriate justified rejection, or caused by alignment, affinity or attachment.It has to be as a result of other behaviours that has impacted the child and that has led to the child’s reluctance, refusal or resistance.Jamie points out that the child’s behaviour is not evidence of the adult’s behaviour. Nor is the absence of a reason for a child not to want to see the other parent proof that a child is alienating. The guidance reminds us that there is not a equivalence between domestic abuse and parental alienation. The guidance also reminds us about the importance of the choosing appropriately qualified experts in complex family situations. Jamie warns us of the dangers of pseudo-science and the psychobabble. He cautions against jumping to a conclusion that a child has been alienated if they are reluctant, refusing or resistant to the other parent. For example, a child may just be exhibiting attachment response, or a child demonstrating an affinity for a particular parent, or they may have come to their own decision about how they have understood the situation. All of this is not to say that there are never occasions when parents have psychologically manipulated their children. We know that they do. Indeed, sometimes perpetrators of abuse psychologically manipulate children to believe the other parent is a danger. The point is that the burden of proof should not be reversed, and the Court approaching the case as if a parent has to prove they are not engaging in alienating behaviours. Zoe links back to when we last discussed this topic from March 2022; Finding the Middle Ground; Parental alienation and High conflict cases, with Dr Mark Berelowitz and Alex Verdan KC.https://resolution.org.uk/podcast/resolution-podcast-season-1/ Finally we ask our guests to wrestle with the question of what professionals should do if they have been involved in a case where the Court has relied on advice from an expert who lacked the appropriate qualifications, or has made recommendations based on what we do is pseudo-science. Jenny suggests that if there has been an error in process then the professional or the Court may now need to engage with what is in the best interest of the child, therefore an appeal out of time maybe an appropriate step in some cases. Please note that Jenny and Jamie were the Chairs of the Family Justice Council working group that wrote the guidance. However, they appear on this episode in their personal capacity and were not speaking on behalf of the Council.

This month we are joined by Samantha Hillas KC (St John’s Buildings), Geoffrey Kingscote KC (1 Hare Court) and Olivia Piercy (Hunters) to discuss domestic abuse in financial remedy proceedings. When it will impact on the outcome, and how we can make the process of agreeing financial arrangements, or an order, safer for victim-survivors. Geoffrey explains the law in relation to s25(g), the test in Tsvetkov v Khayrova [2023] EWFC 130 (04 August 2023), and how Recorder Reardon approached the quantification following findings of conduct in DP v EP (Conduct: Economic Abuse: Needs) [2023] EWFC 6. Geoffrey explains that conduct is restricted to a very small number of possible cases as a result of the test of exceptionality. Sam makes the point that the assessment of needs is likely to be different if need arise from domestic abuse or for another reason. Olivia draws our attention to the Home Office research about the financial impact of domestic abuse: https://www.womensaid.org.uk/wp-content/uploads/2019/12/Economics-of-Abuse-Report-2019.pdf We then go on to consider how proceedings could be reformed so as not to create more litigation, whilst also making the process safer and fairer for victim-survivors. We agree that the current statutory test for Legal Services Payments Orders is not fit for purpose, and discuss other ideas for reform including re-drafting the Form E. Have you read Resolution’s report into the interplay between Domestic Abuse and the treatment of finances on separation and divorce? If not, you should read this groundbreaking research. https://resolution.org.uk/wp-content/uploads/2024/10/Resolution_DAFRP_Report_ONLINE.pdf Please let Resolution have your views on communications@resolution.org.uk with a clear subject line ‘Domestic abuse in Financial Remedy’.

In this episode, we are joined by Professor Jens Scherpe (Professor of Comparative Law at Aalborg University, and academic door tenant at QEB), and our very own Resolution Cohabitation Committee Chair, Graeme Fraser (Head of Family at William Sturges) to discuss what model of cohabitation law reform should be introduced in England & Wales. This is a seminal moment for Resolution. It has been campaigning to achieve family law remedies for cohabitees almost since its inception in 1983, with it being high on its list of priorities since the mid-1990s. The new government has confirmed they are committed to cohabitation reform, so what shape should that take? What Resolution members know is that the general law is not good enough for families. If you need convincing, Jens guides us to think - do you think cohabiting families are families? If yes, then you need family law remedies (rather than remedies for people with no connection because purpose of family law (unlike general law) is to address societal, financial and gender imbalances that arise from being a family. Which model would you support? Do you think, we should: Assimilate the law for cohabitees – so use the same framework that we do for married couples; OR have aDifference model - so there is a clear difference between the remedy for a cohabiting couple, or a married couple. With all family law remedies, you then need to decide are you: a. Compensating a partner for the loss they have experienced generated by the relationship; OR b. Sharing the fruits of the relationship both parties have participated in. Graeme and Jens explore the law for cohabitees in Scotland, Ireland and Australia to consider the pros and cons of each model. We then put them on the spot to what they think we should do in England & Wales. In the conversation, Graeme refers us to the Law Commission report from 2007: https://cloud-platform-e218f50a4812967ba1215eaecede923f.s3.amazonaws.com/uploads/sites/30/2015/03/lc307_Cohabitation.pdfAnd the Vision for Family Justice: https://resolution.org.uk/wp-content/uploads/2023/11/Resolution-Vision-for-Family-Justice-full-221123.pdf If you would like to read more about this, then please do look at Jen’s books about comparative law: Jens M. Scherpe (ed.), European Family Law, Edard Elgar 2016 - European Family Law (e-elgar.com)Jens M. Scherpe/Andy Hayward (eds.), Future of Registered Partnerships – Family Recognition Beyond Marriage, Intersentia 2017 - The Future of Registered Partnerships ~ Book ~ Larcier-IntersentiaJens M. Scherpe/Andy Hayward (eds.), De Facto Relationships – A Comparative Guide, Edward Elgar Publishing, forthcoming in 2025 in the following series: https://www.e-elgar.com/shop/gbp/book-series/law-academic/elgar-comparative-family-law-series.html

Our hosts, Anita Mehta and Simon Blain, discuss what to do when a reporter turns up in your Court and the importance of transparency with Joshua Rozenberg KC (Hon) and Lucy Reed KC (St John’s Chambers, Chair of The Transparency Project). Joshua refers us to the lessons learnt in Tickle v Father & Ors [2023] EWHC 2446 (Fam) (05 October 2023). https://www.bailii.org/ew/cases/EWHC/Fam/2023/2446.html Our guests discuss the benefits both of judgments being published and reporters having access to write up what happens. Joshua talks about the importance of the public knowing how the state will resolve their private disputes if they are unable to do so. He makes the point that the public are only going to know about the importance of Family Jusctice being properly resourced if the press are able to report about what happens. They both reiterate that scrutiny of the Court is healthy. The message that Joshua and Lucy give our audience is that there is nothing unlawful or inappropriate about a party or a lawyer asking a reporter if they would like to observe a case. This is not a breach of s.12 of the Administration of Justice Act 1960. This has been specifically endorsed by the senior judges responsible for the Reporting Pilot, because unless reporters are told about interesting cases they will not come to Court. They make it clear that it is not appropriate for the Judge or the other participants to cross-examine reporters about who told them about the hearing, and the reporter does not need to make an application to attend the hearing. Lucy refers us to the Transparency Project’s guidance notes for help if a reporter turns up in a case you are due to appear in https://transparencyproject.org.uk/updated-guidance-what-to-do-if-a-reporter-attends-or-wants-to-attend-your-hearing-pilot-and-non-pilot-court-versions/. Lucy points out, it is not for the reporter/ blogger to make an application to make an application to be present in Court, as there is a limited basis for a Court to exclude a reporter, which is found in FPR 27.11 (3). (3) At any stage of the proceedings the court may direct that persons within paragraph (2)(f) shall not attend the proceedings or any part of them, where satisfied that— (a)this is necessary—(i)in the interests of any child concerned in, or connected with, the proceedings;(ii)for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or(iii)for the orderly conduct of the proceedings; or(b)justice will otherwise be impeded or prejudiced. If the Court is considering relaxing reporting restrictions it will need to undertake a balancing exercise to weigh the respective weight of article 8 and article 10, as set out by Lord Steyn in Re S (a child), Re [2004] UKHL 47 (28 October 2004).https://www.bailii.org/uk/cases/UKHL/2004/47.html ‘The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [2004] 2 WLR 1232. For presentpurposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.’ If you would like to hear Joshua’s new podcast, you can find it on rozenberg.substack.com If you are a lawyer considering becoming a legal blogger yourself (or a journalist interested in dipping your toe in reporting the family court), Lucy encourages you to get in touch with the Transparency Project: trustees@transparencyproject.org.uk. You can find out more about legal blogging at www.transparencyproject.org.uk/legalbloggers

What is the correct approach to a maintenance case? Listen to Sally Harrison KC (St John’s Buildings) and Farhana Shahzady (Streathers Solicitors) tell us how it is done. Sally reminds us of the guidance of Mr Justice Peel in WC v HC (Financial Remedies Agreements) (Rev1) [2022] EWFC 22 (22 March 2022) https://www.bailii.org/ew/cases/EWFC/HCJ/2022/22.htmlwhen thinking about the quantum of a maintenance order. Mr Justice Peel found that needs are an elastic concept, to be judged by reference to consideration of financial needs and obligations, whether there are children, and the age of the parties. We discuss how the length of the marriage really impacts on how much the standard of living is taken into account. Farhana reminds of guidance of Mr Justice Mostyn in SS v NS (Spousal Maintenance) (Rev 1) [2014] EWHC 4183 (Fam).https://www.bailii.org/ew/cases/EWHC/Fam/2014/4183.html Sally and Farhana discuss the distinction between cases involving wealthy families where the Court may well be inclined to make a Duxbury award, as opposed to need based income awards in the majority of cases. We discuss the overall impression that Courts are being quite restrictive on terms and quantum of maintenance at present. When talking about capitalising maintenance awards, Sally wrestles with the discrepancy between the Ogden tables having a -0.25% rate of return in England & Wales, as opposed to Duxbury’s 3.75% rate of return after inflation of 3%.Sally considers the following cases:HC v FW [2017] EWHC 3162 (Fam) (29 November 2017) https://www.bailii.org/ew/cases/EWHC/Fam/2017/3162.htmlTattersall Z (No.5) (Enforcement) [2024] EWFC 44 (04 March 2024)https://www.bailii.org/ew/cases/EWFC/HCJ/2024/44.html Farhana tells us why it is important to consider the impact of menopause, when considering maintenance quantum, term and nominal maintenance. She shares the details of her survey about the impact of maintenance in family law and financial remedy cases. Resolution will be releasing a spousal maintenance handbook in Summer 2024. Please check the website for details.