Author: Wellers

You might think that the making of a care order implies blame on the part of a child’s parents. However, as a family judge’s ruling in the case of a tragedy-struck 14-year-old girl made plain, you would certainly be wrong about that.

The girl was brought up by her mother alone after her father died when she was very young. Her mother subsequently suffered a catastrophic brain haemorrhage and was thereafter herself in need of round-the-clock care. She could not look after her daughter or exercise her parental responsibility for her.

The girl was placed in foster care, where all agreed she should remain until reaching adulthood. However, an issue arose as to whether she could lawfully be made the subject of a formal care order in circumstances where there was no criticism of the care her mother gave her prior to losing her parenting capacity.

Ruling on the point, the judge found that the making of a care order does not require evidence of a history of past risk or parenting failure. He noted that parents may be unable to provide adequate care for their children for a variety of reasons that reflect no blame on their part. Proof of blameworthiness was not necessary before a care order, which all agreed would best serve the girl’s welfare, could be made.

The judge was satisfied that his decision would not open the floodgates so as to render any parent who loses capacity vulnerable to state intervention. The girl had suffered a torrid, difficult and traumatic time and the judge emphasised that his paramount concern was to ensure her future welfare.

The threshold for the making of a care order was crossed in that, were no such order made, the girl would be at risk of significant future harm. The order would enable a local authority to share parental responsibility for her so as to ensure that she was appropriately looked after.

Adults who lack the capacity to make important decisions for themselves are entitled to their autonomy and should never be equated to children. The Court of Appeal trenchantly made that point in directing that a man with a severe learning disability should be vaccinated against COVID-19.

The man, aged in his 20s, also suffered from congenital heart defects and his mother and primary carer was deeply anxious that vaccination against the virus would place him at particular risk. A judge nevertheless found that vaccination would be in his best interests and authorised an NHS body to perform the procedure.

Ruling on the mother’s challenge to that ruling, the Court did not doubt the sincerity and strength of her beliefs, which were worthy of respect. She had provided her son with the best possible care throughout his life and it was thanks to her that delightful and engaging aspects of his personality had blossomed and grown.

In dismissing her appeal, however, the Court found that her principled opposition to his vaccination could not be reconciled with national medical guidance or the expert opinion of a consultant cardiologist that it was the virus itself, rather than vaccination against it, that would place him at heightened risk.

The Court noted that an adult who lacks capacity is not and never should be treated as a child. Such a paternalistic approach had long since been consigned to history and recognised for what it is – a subversion of adult autonomy. The Court was concerned to protect the man’s freedom, not that of his mother.

The views of parents, friends and others close to a person who lacks capacity are, the Court acknowledged, invariably helpful when considering non-medical issues in such cases. However, their relevance is to illuminate the broader canvas of such a person’s circumstances, not to provide a platform for their own opposition to a course of action which is, objectively, in the person’s best interests.

The Court noted that, whilst the man’s ability to exercise his autonomy may be circumscribed, it was not extinguished. He had a quality of life which was both dignified and meaningful and his lack of capacity did not render his own wishes and feelings irrelevant. Although unable to express himself verbally, he was able to express enjoyment or displeasure, acquiescence or resistance.

The preponderance of evidence indicated that he was not anxious about receiving injections or having blood taken. The only force likely to be required in vaccinating him was to hold his arm to keep it still. Although he could not absorb the medical issues involved in the case, he was perfectly able to decide for himself whether to cooperate or reject vaccination.

Engaging a professional to draft your will and give advice has many advantages that may not be apparent at the time. In a case on point, a lawyer’s prudence in arranging a medical assessment of an elderly client proved decisive in the Court of Appeal’s decision to uphold the validity of his final will.

Following the death of an elderly farmer and businessman, his estate was valued at almost £2 million. By his first two wills, he left business assets to two of his children and farmland to his third. After the third child died suddenly, however, he instructed a solicitor to draft a new will which made significantly different bequests.

He had been experiencing problems with his memory for some time and the death of his child had a devastating impact on him. The solicitor was concerned to ensure that he had the mental capacity required to make a valid will and, with that in mind, she asked the man’s GP to carry out an assessment.

After doing so, the GP noted that he was fully orientated and gave no appearance of being confused or distressed. He was able to go through the will, bit by bit, with very little prompting. After an inheritance dispute developed within the family, however, a judge found that the will was invalid for want of testamentary capacity.

Reversing that decision, the Court noted that the case raised important issues about the proper weight to be attached to the evidence of a drafting solicitor and a medical practitioner’s assessment of capacity. The man was astute enough to realise that it might be sensible to change his will following his child’s death and the document he signed was rational on its face.

The solicitor had prudently enlisted the GP’s assistance and was entitled to, and did, rely on his medical assessment. Neither of them was required to question the man as to his reasons for changing his will. The Court concluded that, had proper weight been given to their evidence, it would not have been open to the judge to find that the will was invalid.

It is quite common for divorcees to claim that they have been placed under undue pressure to strike an unfavourable financial deal. In a big money case, however, a judge ruled that a wife was no lamb to the slaughter but voluntarily signed up to a compromise with her ex-husband which was toasted with champagne.

The German couple, aged in their 70s, enjoyed an immensely high standard of living during their marriage of over 30 years. Following their divorce in Germany, there was a meeting at a hotel during which both signed a settlement agreement by which the husband was to make substantial financial and other provision for the wife.

She, however, went on to swiftly repudiate the agreement and launched proceedings in England – where she resided – seeking financial relief against the husband under the Matrimonial and Family Proceedings Act 1984. She asserted that he and the couple’s son had placed her under massive pressure to enter into the agreement, which she had not signed of her own free will.

Rejecting those allegations, however, the judge found that she was the driving force behind the meeting taking place and that she could not be viewed as a supplicant cowed into submission by a bullying ex-husband and son. Far from being upset, disappointed or distressed at the meeting, her mood was one of relief. She willingly engaged in the champagne toast and considered at the time that she had achieved a good result. She signed the agreement voluntarily, with her eyes open.

Her subsequent repudiation of the deal was an act of foolishness that only served to weaken her position. The terms of the agreement were, in any event, not unfair and the provision it made for her future fell very much within the bracket of awards that she might have obtained from an English court.

Despite her repudiation of the agreement, the judge was confident that the husband – who had professed his wish to do the right thing by her – would comply with its terms. In order to secure her position, however, the provisions of the agreement were encapsulated in an order of the court. The judge hoped that his ruling would mark an end to the years of strife that had riven the family.

There can be few things more wounding or worrying than to be on the receiving end of a poison-pen letter campaign. However, as a High Court ruling showed, the law provides an effective means by which victims of such behaviour can achieve both public vindication and appropriate compensation.

In the background to the case was a history of friction and grievance between a rural landowner and a couple who were his longstanding tenant farmers. He held the tenants responsible for originating and circulating some anonymous poison-pen letters which surfaced over a two-year period in the village where he lived, and which made grave and salacious allegations against him.

After he launched harassment and libel proceedings, the tenants vigorously denied that the letters originated with them. They contended that the anonymous material came to them from somewhere else and that they gave it little or no further currency. Whilst not conceding the claim, they chose not to formally acknowledge or defend it on the basis that they wished for the stressful litigation to be brought to an end.

Following a hearing, the Court found that, as no formally pleaded defence had been filed, the landowner was entitled to a default judgment on his claim. There was no basis for inferring that the defamatory allegations made against him in the letters were, or were claimed to be, true. In order to vindicate his reputation, the tenants were ordered to pay him £8,000 in libel damages and £12,000 in harassment damages.

An injunction was issued against them with a view to restraining further publication of the same or similar allegations. Their daughter, who was alleged to have been involved in the publication of one letter, was ordered to pay £2,000 in libel damages. She too denied the allegation but had not formally defended the claim.

Those who delay making a will until they are at death’s door create a very real risk of conflict amongst their loved ones after they are gone. That was sadly so in the case of an elderly man who was in hospital, suffering from advanced bladder cancer, when he finally got round to instructing a solicitor.

By his will, which he signed less than two weeks before he died, the man left all that he owned to his wife. The document’s validity was challenged in court by his eldest son, who asserted that he was so confused at the time that he lacked the mental capacity required to make a legally enforceable will.

Ruling on the matter, the High Court noted that medical records in the days before he executed the will referred to him as confused and agitated. No medical opinion had been sought in relation to his capacity and understanding before he signed the document. One of his daughters testified that he had lost his mental acumen and that, in her opinion, he was in no fit state to make a will.

On the other hand, other members of his family who visited him in hospital had no doubt about his capacity. Expert evidence indicated that a change in medication had brought about a marked improvement in his condition by the time he signed the will. His accountant, who served as one of the witnesses to the will, had no concern at all that he was not fully aware of what he was doing.

The decisive evidence, however, came from the solicitor who drafted the will. He had known the man for over 40 years and had discussed the contents and implications of the will privately with him before he signed it. The document was read to him twice before he stated that it was exactly what he wanted. The Court rejected any suggestion that the solicitor had conducted himself unprofessionally.

Whilst the man was clearly unwell, the Court was entirely persuaded by the solicitor’s evidence that he had the required mental capacity to make a valid will. Rejecting the daughter’s evidence to the contrary, it found that she was motivated solely by the prospect of personal financial gain and not by any desire to tell the truth.

In upholding the will’s validity and admitting it to proof in solemn form, the Court was satisfied that the man knew and approved the contents of the document. His son’s further allegation that he had been subjected to undue influence was hopelessly misconceived in that it was supported by not one shred of evidence.

No one knows when death will come calling and it is equally a truism that, if you fail to make a professionally drafted will, you store up trouble for your loved ones after you are gone. As an unusual Family Court ruling showed, that is particularly so if you own property abroad.

The case concerned a father who owned a property in France, where he died without having made a will. In accordance with French succession law, the property passed in equal shares to his son and daughter. Difficulties arose, however, because the son was still a child and was habitually resident in England.

It was necessary under French law for the son to accept his succession to a half share in the property. However, as a matter of English law, his status as a minor meant that he was incapable of doing so. In those circumstances, his mother was constrained to apply to the Court for an order entitling her to accept the property inheritance on his behalf.

Granting the order sought, the Court was satisfied that her parental responsibility for her son, as defined by the Children Act 1989, extended to enabling her to act on his behalf in relation to the property. The order also entitled her to step into her son’s shoes and enter into a contract for the property’s sale.

The Court noted that the son’s welfare was the paramount consideration. However, he had supported his mother’s application in unequivocal terms and, having reached the age of 17, his views commanded profound respect. A ready and willing buyer had been found for the property and its sale would yield a sum that could be used to fund the son’s university education or to explore other investment opportunities.

Couples generally either own their homes as joint tenants or as tenants in common. The distinction between the two may not be widely understood but, as a High Court ruling in an inheritance case showed, it can matter very much indeed.

The case concerned a married couple who made mirror wills which, in broad terms, were intended to ensure that when the first of them died, their jointly owned home could continue to be occupied by the survivor. Following the death of the second spouse, the intention was that the property would pass equally to their four sons.

Following the wife’s death, however, the husband made a fresh will by which he bequeathed 75 per cent of his estate to one of his sons and the remainder to the other three. In those circumstances, an issue arose as to whether the husband owned the whole of the house when he died at the age of 92 or only half of it.

The house having subsequently been sold for £500,000, the answer to that question was of great significance to the value of the respective inheritances of their surviving three sons and the heirs of the fourth, who died prior to his father. The issue hinged on whether the couple together owned the whole of the property as joint tenants, or in equal but separate parts as beneficial tenants in common.

If the former, ownership of the whole property passed to the husband by right of survivorship on the wife’s death and was his to bequeath in his will. If the latter, the wife’s half share formed part of her estate on her death and, subject to the husband’s life interest, passed equally to the four sons in accordance with her own will.

Ruling on the matter, the Court noted that, when the couple purchased the house in the 1980s, the conveyance made no mention of their respective beneficial interests. As a matter of law, it was nevertheless presumed that, at that stage, they owned legal title to the property for themselves as beneficial joint tenants.

However, the Court found on the evidence that, prior to the wife’s death, the couple had probably signed a document that severed the joint tenancy, converting it into a tenancy in common. The fact that no such document had been found after their deaths was not decisive. It would have been a single sheet of paper that could easily have been misfiled or even accidentally destroyed.

Even had there been no such document, the Court found on the evidence that they had in fact agreed to sever the joint tenancy. Alternatively, their course of conduct, in particular the making of the mirror wills, made it probable that they intended to hold the property as beneficial tenants in common. The couple’s estates would be distributed in accordance with the Court’s ruling.