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Home > Articles > 2015 archive

All Change for London Family Lawyers: An International Perspective

Stuart Clark, Associate Solicitor at The International Family Law Group LLP, explains the latest changes to the administration of divorce and financial remedies cases in London.

Stuart Clark, Associate, The International Family Law Group














Stuart Clark, Associate, The International Family Law Group

A number of changes to the administration of family justice in London come into force this month, July 2015, and the key words for London family court users are "centralisation" and "complexity."

The changes predominantly affect divorce and financial matters and the allocation of work. As English solicitors predominantly undertaking cases with an international element, where complexity is never too far away, my firm  has particular need to be aware of the effect on our day-to-day dealings with the courts. We often have much work in the Central Family Court (the family court in London) but the changes to the administration of divorce and financial matters in London and the South East may limit the matters which will now physically and geographically take place in that Court.  There will be a requirement that a matter is sufficiently "complex" for it to be heard in the Central Family Court. The High Court has its own gateway, also with reference to complexity, although with a subtly different meaning, as I explore below.

The Bury St Edmunds Divorce Centre
President of the Family Division Sir James Munby has rightly and beneficially been driving the family courts toward centralisation for many months now. For London and the South-East this means that all divorce and financial matters will be handled administratively by the Bury St Edmunds Divorce Centre. The movement of work from London and the South East has been taking place gradually over the last few months and it is anticipated it will be completed by October 2015. The aim is for the more efficient running of divorce and family matters and for great consistency. The divorce centre will aim for a turnover of correspondence within 48 hours of receipt (although recent figures suggest that turn over at Bury St Edmunds is at least 6 days). We all hope that this is successful (I was involved in a similar centralisation of magistrates' courts within a county in the past and whilst the first few weeks and months of that experience are best described as chaotic, the upshot was a more efficient system). We live (and file our papers) in hope!

On Monday 20 July 2015 it became the turn of the (London) Central Family Court to move to Bury St Edmunds. Any new divorce or financial application issued on or after that date at the Central Family Court will be administered by the Bury St Edmunds Divorce Centre. Existing filed matters will continue to be handled by the Central Family Court.

Any new petitions and Forms A will need to be sent to Bury St Edmunds for issuing. As international practitioners well-used to jurisdiction races and running (often literally) to First Avenue House we were concerned that petitions and Forms A will be sent to Bury St Edmunds and will have to await their turn in the queue, notwithstanding the urgency. Help is at hand: the panel in charge of centralisation has stated that local courts, including the Central Family Court, have said that counter staff will (still) issue petitions and Forms A on-site if there is a matter of urgency, for example in a jurisdiction race or if a section 37 injunction application is imminent. Crucially, practitioners will be trusted and taken at their word on matters of urgency. Recent experience suggests that this will occur at the Central Family Court although a colleague has recounted difficulties issuing on-site in a court in Hampshire over Christmas 2014 when he was told that it would be "unfair" for the petitioner to steal a march in the interests of securing jurisdiction. Let us hope that this was an isolated incident.

Once a petition and Form A are issued at Bury St Edmunds the proceedings will be allocated a court within London and the South East to handle contentious suit hearings and any hearings in the financial proceedings. The petitioner or applicant can nominate their court of choice within the area and in default the court will allocate based on the court closest to the post code of the petitioner or applicant (although some vagueries remain as to whether this will be according to proximity as the judicial crow flies or proximity based on local authority or borough).

Crucially, the petitioner or applicant cannot nominate the Central Family Court unless the matter is sufficiently complex. The idea is to have the Central Family Court held up as a centre of excellence and venue for only the most complex of cases.

So, what is complexity? A complexity certificate has been released for practitioners to complete when seeking to issue at the Central Family Court and it provides a checklist of issues. For the Central Family Court, a matter will be sufficiently complex if the assets are worth over £10million. If the asserts are worth under £10million one of the following must apply:

  1. There are complex asset or income structures;
  2. There are issues of non-disclosure;
  3. Assets were or are held through offshore trusts / settlements / otherwise offshore or overseas / through family/unquoted corporate entities;
  4. There are sufficiently valuable family assets, trusts and/or corporate entities;
  5. Expert accountancy evidence will be required;
  6. Arguments as to either contributions or conduct will be run;
  7. There are issues of illiquidity of assets;
  8. There are arguments regarding matrimonial and non-matrimonial assets;
  9. There are other complex or novel issues of legal argument.

There is also a catch-all for any other reason why the matter should be allocated to the Central Family Court and it is suggested that the urgency of issue of a petition and/or Form A will be a gateway for matters being held at the Central Family Court. However, the first appointment judge may move the matter away from that court if there is otherwise no distinct complexity. The fact that one or both of the parties are based overseas and require access to a family court in central London may also provide reason to plead "complexity." Unfortunately the convenience of practitioners is not sufficient reason.

In international cases one or numerous of the criteria are likely to apply. But we should be aware that the court will be on the look-out for practitioners abusing the system for their own convenience and "complexity" should be pleaded sparingly to ensure only those cases where the expertise of the Central Family Court is required are handled in that court.

The High Court
The High Court brought in its own complexity certificate on 1 July 2015. Mostyn J sent a circular effective on 1 July 2015 providing guidance for the efficient conduct of financial remedy work in the High Court. It is an important note for practitioners operating in the High Court and demands close-reading.

Unless a judge has directed that the matter be heard by the High Court, practitioners will need to self-certify a matter to be sufficiently complex so as to warrant hearing by the High Court. The complexity certificate will need to be lodged with the Clerk of the Rules at the High Court at least 21 days prior to the first appointment and it will then be considered by the judge in charge of the money list (currently Mostyn J) who will decide whether the matter is sufficiently complex and then allocate the matter to a judge to handle all hearings in the matter (save for the FDR and interlocutory hearings where judicial continuity is not possible or would unduly delay matters).

Whether a matter is sufficiently complex is based on the net assets and the issues in the case. The certificate provides for brackets of £10m-£15m, £15m-£25m, £25m-£50m, £50 plus or "Other" – presumably sub-£10m in which case there will need to be further compelling reasons for the matter being placed before the High Court. The other "complex" issues are in checklist form again and are as follows:

  1. There are issues of non-disclosure;
  2. Assets were or are held through offshore trusts / settlements / through family/unquoted corporate entities;
  3. There are sufficiently valuable family assets, trusts and/or corporate entities;
  4. A nuptial agreement is relied upon;
  5. Assets are held offshore;
  6. Arguments as to either contributions or conduct will be run;
  7. There are issues of illiquidity of assets;
  8. There are arguments regarding matrimonial and non-matrimonial assets;
  9. There are other complex or novel issues of legal argument.

There is a large degree of overlap with the Central Family Court complexity certificate and, absent further guidance, practitioners will need to decide whether the matter is sufficiently complex for the High Court. In deciding whether a complex matter is worthy of the High Court over the Central Family Court, perhaps the best (but self-serving) guidance is to continue what experienced practitioners have always done: "you know it when you see it". That said, the guidance from Mostyn J warns of the consequences for practitioners who wrongly certify a matter in the High Court and the judge at first appointment can re-allocate downward and make appropriate orders as to costs. More so than with the Central Family Court, certification is to be done at your own risk and sparingly.

Reciprocal Enforcement
Further changes are in the pipeline for reciprocal enforcement. Forthcoming changes made via The Civil Jurisdiction and Judgments (Maintenance) and International Recovery of Maintenance (Hague Convention 2007 etc) (Amendment) Regulations 2015 will mean the administration of maintenance enforcement both domestically and cross-border will be handled in three Maintenance Enforcement Business Centres in England and Wales. Matters in Wales will be handled in Bridgend, Bury St Edmunds will handles matters in England, except for London. London matters will be handled by the London Maintenance Enforcement Business Centre. The statutory instrument is before Parliament and is due to be brought in on 31 July.

22/7/15