Category Archives: Family and Matrimonial

Ex-Spouses could face travel bans for failing to pay divorce settlements

Paul Lancaster, partner of the Family Law team at Blacks Solicitors, looks into the latest proposals from the Law Commission:

“The Law Commission has published new proposals which aim to make the enforcement of family financial orders ‘more effective, accessible and fair’ and implement tough sanctions for those who refuse to pay their former spouse’s divorce settlement.

The Commission states that many divorcees are ignoring the orders, with as many as 4,200 enforcement cases each year amounting to an estimate of £15m to £20m of debts each year which go unrecovered, leaving the recipient spouses at a serious detriment and hardship.

The current position allows those that are owed money to take their ex-spouses to Court where a jail sentence may be ordered however, because a criminal standard of proof is required, in reality this type of sanction is rarely enforced.

The report recommends a wide-ranging reform, including the power for the Courts to obtain information about debtors, broadening the range of assets available for enforcement purposes and introducing further punitive measures such as disqualifying debtors from driving and prohibiting them from travelling out of the UK.

The Commission has, however, confirmed that they will not put ex-spouses in a self-defeating position whereby they can no longer earn a living as a result of a driving ban. The commission is therefore also recommending that the Courts have the power to confiscate passports which would be returned once the debt is settled. It is believed these measures will go some way to tackling the growing culture of non-payment.

The proposal will now be considered by government and the Justice Secretary over the course of the upcoming year to decide if the proposals will be legislated.”

More litigants in person a LASPO legacy

As virtually everyone in the legal profession will recall, warnings were sounded at every stage of the introduction of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. LASPO would, many lawyers argued, deny access to justice for many individuals who might have wished to pursue civil litigation of some sort.

A month ahead of implementation the following year, the Law Society summarised the changes in these terms: “On Monday 1 April 2013, the Legal Services Commission will be replaced by the Legal Aid Agency, and the cuts imposed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 will take effect. LASPO implements substantial cuts to civil legal aid. The details of what remains in scope can be found in the LASPO Schedule 1.”

The Law Society’s measured summary contrasted with the sense of outrage widely felt across the profession. For so many of us, access to justice is a basic tenet of the legal system and in effect to exclude people because they do not have the financial resources to pursue a case unaided seems in conflict with that, although that does not mean we can all work pro bono!

My own area of family law was among those affected by LASPO’s massive scaling back of legal aid. This was clearly bad news for many future clients and of course had implications for my firm’s human and financial resources, as it was usual for us to be handling several cases within the affected areas of family law. We very soon had to adapt ourselves to the new arrangements.

Family law legal aid guidelines

The newly created Legal Aid Agency was quick to provide guidelines, which included: One of the key changes introduced by LASPO is that legal aid for most children and finance matters in private family law cases will only be available where a client has specific evidence in relation to domestic violence or child protection. The evidence that is required in order for an application for legal aid to be made in these matters is prescribed in the Civil Legal Aid (Procedure) Regulations 2012 as amended. Regulation 33 deals with evidence relating to domestic violence and Regulation 34 with evidence relating to child protection.

This all amounted to much more than raising the bar as regards qualification for legal aid; it was more like asking us to participate in the pole vault with only occasional access to a pole. Like colleagues in other areas of my firm and across the profession, I was driven to wonder what the draconian cutbacks were expected to achieve. It was, in essence, all about the money.

A paper later presented to a Commons Select Committee inquiry explained the rationale thus: “In 2010 the incoming Government developed plans to cut public spending significantly. The Ministry of Justice (MoJ) was required to find budget cuts of around £2 billion from an overall budget of £9.8 billion. Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 was intended substantially to reduce the civil legal aid budget by removing whole areas of law from scope and changing the financial eligibility criteria. The LASPO scheme was introduced alongside other policy changes including a reduction in the fees paid to providers.

“In the final Equality Impact Assessment accompanying the Bill the Ministry of Justice set out that its objectives for the proposed legislation were to: discourage unnecessary and adversarial litigation at public expense; target legal aid to those who need it most; make significant savings in the cost of the scheme; and deliver better overall value for money for the taxpayer.”

Cases fell by the wayside

Transitional arrangements provided for legal aid to continue in pre-LASPO cases that probably would not have qualified post-LASPO, but for the past three years or so we have been learning to live with the new legal aid regime. Regrettably, many sound cases across many areas of civil law must have fallen by the wayside due to the denial of legal aid since April 2013.

In my family law work, like many others no doubt, with the reduction in availability of legal aid we are seeing more litigants in person. This is an understandable reaction in situations where litigants do not have or are not willing to put up the funds needed to pursue a case through the courts. Their perception is that the DIY approach will save them money without detriment to the outcome. In a few cases they may be right.

As any legal professional knows, there is a raft of procedural issues involved in preparing and presenting a case to the court. A litigant in person invariably does not know what to do to prepare a case and there is every likelihood that they will fail to comply with court timetables and they may attend court unprepared and so jeopardise the effectiveness of the hearing.

The courts clearly have to treat litigants in person in a fair and reasonable way, so will often spend time in hearings explaining things to them. I totally accept that someone unable to finance legal representation should be permitted to represent themselves and to be assisted by the court as appropriate. After all, it is not fair if a father cannot see his child just because he cannot afford legal costs and cannot get help with funding. LASPO has left him with no choice.

Counterparty cost impact

Whilst supporting the right to self-representation, I have to note that this approach is not just potentially disadvantageous for the litigant in person but also for the opposing side.

Having a litigant in person on the other side can increase costs for a paying party and cause huge delays. Inept preparation, missing of court deadlines and poor presentation in court can all add to the time and costs of the case for the represented party.

Often the solicitor acting for a paying party will do things to keep matters on track even if there is no obligation on them. They have to lodge bundles with the court. Usually the onus is on the applicant but if the applicant is a litigant in person it falls to the respondent to do, involving more cost, and they also have to provide the litigant in person with a full copy. The solicitor may incur further costs repeatedly chasing when the litigant in person overshoots court timetables.

In my personal experience it is also likely that a litigant in person, in the absence of sound legal advice, is less likely to take a pragmatic approach and to compromise or agree. So, settlement is far less likely to be achieved at a relatively early stage of the proceedings. Prolonged, contentious cases are of course the most expensive for everyone involved; they can also be the most stressful and upsetting for the parties and for other family members.

All of this prompts the question of whether LASPO, beyond slashing expenditure on legal aid, was intended to lead to greater resort to self-representation or whether this has been an accidental consequence. If the former, I tend to think that the aim of reducing the number of cases reaching court by means of accessing alternative dispute resolution options also loomed large in the legislators’ minds.

What drove LASPO aid cuts

To determine the thought processes behind LASPO Schedule 1, it is helpful to return to the Select Committee inquiry submission. Among the factors said to have guided the Ministry of Justice’s decisions on changes to scope of legal aid, two stand out as particularly relevant here, as one relates to ‘the litigant’s ability to present their own case’ and the other to ‘the availability of other routes to resolution’.

To quote the submission: “The litigant’s ability to present their own case: considerations included the type of forum in which the proceedings are held, whether they are inquisitorial or adversarial, whether litigants bringing proceedings were likely to be from a predominantly physically or emotionally vulnerable group.

“The availability of other routes to resolution: in determining the priority for certain types of case, we considered whether people might be able to access other sources of advice to help resolve their problems, avoiding the need for court proceedings.”

From this I have to conclude that the expected consequences of withdrawal of legal aid, in addition to the inevitable result that some justifiable actions would never get off the ground, did indeed include a rise in the number of litigant in person cases and a rise in the role of mediation and alternative dispute resolution methods.

Mediation v. Self-representation

There is no doubt in my mind that, to the extent that the 2013 withdrawal of legal aid for many family law cases leads one or other party to seek a less costly alternative to professional legal representation in court, the better solution is likely to be mediation rather than self-representation.

I have already touched upon the multiple disadvantages of self-representation and colleagues across all areas of the profession need little introduction to the benefits of mediation in many cases. I can only speak for family law disputes, but avoiding the mounting costs of going to court when a similar outcome could be achieved in less formal, less adversarial surroundings is almost always preferable.

That is not to say that mediation is guaranteed to be an easy route to an amicable settlement. It does need to be effective, and to be effective both parties need to be committed to the process. With that and some goodwill on both sides, a resolution that both can accept as fairly arrived at (and thus unlikely to differ greatly from what they might expect at the end of a long court battle) is within grasp.

Male victims of domestic violence – there’s no shame in speaking out

Just three months after the death of popular British television writer, actress and comedian Caroline Aherne from cancer, her former husband, musician Peter Hook (of Joy Division and New Order), has claimed he was a victim of domestic violence during their three-year marriage.

Writing in his new autobiography, Hook says he was attacked with knives, bottles and chairs by the actress during their marriage in the 1990s. And while many people have questioned the timing of the revelations, the reaction has brought attitudes to male domestic violence victims to the forefront in a truly unpleasant manner.

More than a number

Statistics released by male domestic violence charity the ManKind Initiative in March 2016 revealed that 13.2 per cent of men have been the victim of domestic abuse at some point during the time since they were 16. And, according to the charity, one-in-six men will suffer from domestic abuse during their lifetime, compared to one-in-four women.

While the figures revealed that there are more female victims of domestic violence in the UK, a recent report has pointed to an increase in the number of females convicted of domestic violence. Data released by the Crown Prosecution Service to Parliament following a question submitted by Conservative MP Philip Davies revealed that 1,850 women were convicted of perpetrating the offence in 2006, a figure that rose to 5,641 in 2015.

The data did not specify whether the women’s victims were male or female, or if the abuse occurred between spouses or partners, or family relatives. However, the data acts as an important reminder that while the majority of domestic violence perpetrators are male, women also commit serious abuse and their victims should be offered support.

Under UK law, domestic violence and abuse is defined as “incidents of controlling, coercive, threatening behaviour, violence or abuse between people who are or have been intimate partners or family members”. The abuse can be psychological, physical, sexual, financial or emotional, and can occur between partners, spouses, parents, children or siblings. Female abusers could include women abusing male or female romantic partners, parents, children or siblings.

The study’s findings uncover the worrying reality that male victims of abuse may be afraid to ask for help due to the idea that domestic violence is perceived as a problem that only happens to women, therefore their case may be dismissed. What’s more, sexist stereotypes that exist, painting women as “passive”, while displaying men as more aggressive can put a stigma on the male victims of female abusers. Further to this, gay or bisexual men in same-sex relationships face homophobic or biphobic attitudes from police when discussing their experiences.

A wider issue

Male victims of any type of violence are often less likely to be taken seriously, and many are not given access to the help they need, particularly if they suffer from any form of intimate violence, such as sexual abuse or the type of physical and mental abuse that Hook has discussed in reports this week. Hook claims to have spiralled into clinical depression as a result of his former wife’s violent behaviour, and has since said he felt “embarrassed and ashamed” by the abuse.

The troubling question is, at a time when men are being urged to “open up” more and talk about their feelings – including discussing mental health issues such as anxiety and depression – is society doing all it can to actually listen to what men say when they speak up about their experiences? Unfortunately, Peter Hook’s claims have been met with considerable criticism. While many individuals have criticised the timing of the revelations, including the late Aherne’s brother, who labelled him an “excuse of a man”, Hook’s claims have been welcomed by campaigners, who believe that someone of his stature could signal change and give men the confidence to come forward if they have been a victim of abuse.

Any victim of domestic violence is likely to feel isolated and alone, and it is true that more needs to be done to encourage these individuals to speak up, therefore receiving the help they need to escape their current situation. However, due to the continued stigma, and pre-existing issues that make men less likely to discuss their vulnerabilities, this means that it is high time action was taken to change these dangerous perceptions.

Finding a solution

Men who are in an abusive relationship are urged to keep a record of dates and times of any incidents that take place, and seek medical attention from A&E or a GP, who will make a note of the injuries sustained. It is essential for victims of domestic violence to keep a fully charged phone with them at all times to ensure emergency calls can always be made. Confiding in someone, whether it be a friend, relative or employer, is another way in which victims of domestic violence can start to get the help they require, and while this may be the most difficult thing to do, there is no need to feel ashamed.

Perhaps the biggest worry among many male domestic violence victims is the shame they feel at being in this situation. However, victims of abuse are not alone and support is available for men and women. Taking the first step to find this help is the most important, and yet the most daunting, however, it is important to remember that the support is out there.

Before, During and After: The 3 Stages to an Amicable Divorce

You and your partner have made — or perhaps have been pushed by a catalyst into making — the enormous, life-altering decision to end your marriage. So what now? Especially if you have children, not much can be more damaging to your relationship than a prolonged and messy divorce where feelings continue to get hurt, and emotional shrapnel becomes a daily event for all parties.

So is it possible to divorce amicably? Believe it or not, yes. While this might seem impossible at times, there are steps that can be taken throughout all three stages of your divorce (before, during, and after) to save you from further hurt and expense. You may not achieve that “dream divorce” of that one friend we all have, but using these steps, it’s certainly possible to come out of your marriage feeling capable of being in the same room as your ex, and ready to take on the world again.

Stage one: What can I do before I divorce?

Before you file for a divorce, there are steps to prepare which will make the process quicker and minimize the pain and anger. The first thing is to prepare yourself for your divorce. Whether it’s your choice or it has been sprung upon you by your spouse, make sure it’s really a divorce you want. Try couples therapy and taking time together to rediscover what it was that made you fall in love with that person in the first place.

In our experience, at least one half of the couple isn’t prepared for a divorce — and in many cases, neither is. If your spouse wants a divorce but you don’t, check that you’ve taken all the steps to try and fix it. If you’re the spouse who wants a divorce, make sure that you’re checking your behaviour and making sure you don’t live a single life until you’re officially divorced. If you start dating, even if you’ve separated, it still counts as adultery in the eyes of the court. More importantly, the last thing you want to be doing is giving more grounds for resentment and anger.

If you have children, remember to put them first. More than for you and your ex, an amicable divorce is important for children. Regardless of your feelings for your spouse, alienating them from their other parent, unless that parent is abusive, is exceptionally damaging to your child.

Other key considerations before beginning your divorce are finding a solicitor, deciding what your goals for arrangements for the children are, and sorting out joint bank accounts. Finding a reputable solicitor of family law early on can really help you at this age, as they can help you with questions like “can I move to another apartment yet?” “Might I lose my chance of the children living with me?” “Can I date?” In short, finding the best divorce solicitor as soon as possible will stop you making any mistakes that might put you at risk, and can lead to more anger and resentment in the divorce itself. Look for a lawyer local to you, for instance the best divorce lawyers in London, and make sure you talk to a few before making your decision.

Stage two: What can I do during my divorce to keep things amicable?

If you’re divorcing because your marriage has simply stopped working and things are reasonably amicable, consider hiring a mediator rather than taking things to court. Taking responsibility for your divorce can also be useful when trying to succeed in an amicable divorce. While it can be easier to lay all the blame on your spouse, it often takes two to create a situation where a divorce is necessary.

Blaming your ex for everything may seem more convenient, but it can easily become a habit. Your friends will doubtlessly side with you and the blame can become a cycle, until you’ve built your ex up in your head into a monster that, in reality, they’re not. Remember that you’re both only human. Excessive blame can not only be damaging to yourself and to your ex, but it can be most damaging of all to your children who are suddenly hearing mummy being hateful towards daddy, and vice versa. If you think this is a stressful and uprooting time for you and your partner, imagine the confusion your children are feeling at having the family unit torn apart. Seeing you and your spouse keep a genuine civil face on things can be invaluable to maintaining their relationships with both parents.

If you’re really struggling to let go of resentment and anger, seeing a therapist once a week for the duration of your divorce can not only help your mental health, but can actually save you money in the long run by helping you make clearer decisions, concluding your divorce faster and cutting down legal costs. A good therapist will help you realise and take control of your own issues that have contributed to your divorce, which is far more useful than laying the blame on your spouse. Doing so will also give you far more power; a good divorce goal is to aim to come out of it a more mature and stronger person, so taking charge of your own mistakes will help with this, as well as helping with an amicable divorce where you can come out as friends.

Above all, compromise is important for an amicable divorce. Find a good family law solicitor who can advise you on how to equally divide assets, and come to an agreement that works for both of you, rather than arguing over small things for the sake of it.

Stage three: What about after my divorce?

Remember that neither of you will be able to live the lifestyle you have become accustomed to, as you will either have gone from being a two-income household to two single-income households, or you will have gone from living with the benefits of a far larger income than your own supporting you. Your nice family home may have been sold and you are both living in smaller homes, and your holidays are no longer as extravagant.

It’s important to keep sight of the positives. When you first married, did you stop doing something because your ex didn’t like it? Perhaps you had a different film taste, or a different holiday taste. Maybe you fell out of contact with old friends because you didn’t have time for them anymore. Instead of missing your kids when they’re staying with your ex, enjoy all the free time you now have and enjoy the quality time with them when they’re present. Especially if your partner didn’t fully step up with the child care while you were married, now’s the time to truly establish a balance. Your solicitor for family law will have helped you find good arrangements for childcare that suit both of you.

Above all, make sure you enjoy life for yourself. Statistically, people are happier after they divorce and even if that’s not you now, it can be. Keep up your regular routine and rediscover interests that might have slipped. Spend more time with friends and, when you’re ready, start dating again. Enjoying your new-found freedom and being comfortable in yourself is a good start to developing or keeping a friendship with the person who once was the most important person in your life.

An Exception to Swallow The Hague Convention Return Rule?

The 1980 Hague Convention Treaty regarding the Civil Aspects of International Parental Abduction (“Hague Convention”) is currently being threatened in the Unites States under a proposed new amendment to the United States’ version of the Hague Convention, which proposal would stop numerous returns of abducted children to their countries of habitual residence.

Any proposed new legislation which attempts to widen one of the exceptions to the rule that abducted children must be returned home is extremely concerning.  Expanding the exceptions to having to return abducted children to their home countries may so weaken the enforceability of the treaty, as to nearly stop the enforcement of the Hague Convention treaty in the United States.

By way of background, pursuant to the Hague Convention ( 42 U.S.C. 11601, et seq.), a left-behind parent whose child has been abducted by another parent and taken or retained in a contracting country may, through a Hague Convention proceeding, obtain an order returning the minor child to his/her country of habitual residence.

The text of the Hague Convention sets forth three clear requirements for the return of the minor child.  As a general summary, these are:

  1. That the child was a habitual resident of the state from which he/she was taken;
  1. That the child was wrongfully removed from the state by the abducting parent, meaning that the non-abducting parent had parental rights which he was actually exercising at the time of the abduction; and
  1. That the case does not fall into any exceptions.  These limited exceptions are:

    a. That the non-abducting parent was not actually exercising his custodial rights, or consented to the removal and/or retention of the child;

    b. “There is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”; or

    c. That the Hague Convention proceedings were commenced more than one year from the date of abduction/retention.

Importantly, as set forth in Article 16 of The Hague Convention, a Hague Convention proceeding is per se, not a custody proceeding, and any request by either parent for a custody determination, such as to determine which parent should be the primary or sole custodial parent, is irrelevant to a Hague Convention matter:

“. . . [T]he judicial or administrative authorities of the contracting state to which the child had been removed or in which it has been retained shall not decide on the merits of rights of custody . . . [Emphasis added.]”

This directive is not only expressly stated in the text of The Hague Convention but has been repeatedly upheld in the United States and other courts hearing Hague Convention cases.  In Nunez-Escudero v. Tice-Menley, (1995) 58 F.3d 374, 8th Cir., for example, the court stated unequivocally:

“We instruct the court not to consider evidence relevant to custody or the best interests of the child.” Id. At 378.

Unfortunately, instead of following, the relatively simple dictate of the Hague Convention to return children to their countries of habitual residence rather than make a determination as to which parent a child is better of living with, Hague Convention Courts have often taken into consideration claims of domestic violence by abductors as an exception to the return rule.

However, this debate is not about leaving victims of domestic violence without protection, and attempting to justify this Amendment by focusing on victims of domestic violence is a “red herring”.  Indeed, a victim of domestic violence who abducts a child and loses a Hague Convention matter need not return to the previously violent relationship or to the previously shared home in the country of habitual residence. He/she has every right to protection from the other parent whom she/he claims is abusive, and to ask a court for custody based on the other parents’ behaviour-and all of this should take place in the home court, rather than stop the return of the child his/her country of habitual residence.

The focus of the “grave risk of harm” exception to the Article 13 exception to returning the children is on the children themselves rather than on their parents.  A victim of domestic violence will have the right to obtain all the benefits and protections of the legal system in the country of habitual residence including police assistance, obtaining restraining orders, and the like. If he or she would not have such protections, the focus of the Hague Convention’s hearing would be on determining whether the country of habitual residence has such working assistance systems in place.

Indeed, the focus, as clearly set forth in the Hague Convention treaty itself is not exposing the child to physical or psychological harm or otherwise placing the child in an intolerable situation.

Any domestic violence claims should be litigated in the country of habitual residence, the only country which is allowed to make a custody determination. Any amendment to the Hague Convention in the United States which would add domestic violence as an additional Article 13 exception, to be litigated in the abducted-to location would blur the line between making a custody determination (which only the country of habitual residence may do per Article 16) as opposed to determining if a child was wrongfully abducted from his/her country of habitual residence.

The purpose of the Hague Convention per its Article 1 is: “to secure the prompt return of children wrongfully removed to or retained in any Contracting State.”  Per the literal words of Article 1 of the treaty, the return is per se and on its face not being made “to the other parent”, but to the country of habitual residence.

 

Leaving the EU – what this means for you and your business

Now that the dust is settling on the UK’s decision to leave the EU, our clients are asking what this means for them.  We are the first member state ever to  leave the European Union and as such, the result has ignited much uncertainty and debate about what lies ahead.

Change always brings opportunities, as well as challenges, and we are focused on helping our clients understand how these changes can benefit their business during the period of transition ahead.

A recent survey we commissioned suggests that only 20% of businesses had set in place a continuity plan for the leave vote. In the public sector, there is concern about what will happen to staffing arrangements as well as EU-funded collaboration projects.  We understand that there is much uncertainty at present, but we will continue to support and provide innovative solutions to help our clients invest and grow.

Of course, it’s not only businesses that are affected.  Exit from the EU will likely have a knock-on effect on a range of private and family law matters which are currently governed by a system which in many areas combines both EU and domestic legislation into an integrated European framework.

Whilst it is not clear what the exit will look like or how we will take forward the laws that the UK has adopted over the last 40 years, we do know that there will be opportunities coming out of these changes and we will be supporting our clients in understanding how these can be used to their advantage.

In this article, I explore some of our key sectors and what the implications may be for them of leaving the EU.

Real Estate

Real Estate markets, whether commercial or residential, always prefer certainty. The last few months have led to a slowdown in transactions while people awaited the outcome of the Referendum. In some recent cases, transactions have been entered into with options to determine depending on the result of the vote, and those agreements may now be determined. Now that we know that the Leave vote has won, we expect to see the Real Estate markets to pick up rapidly. Banks are still in the market to lend to the right product, and there is a significant amount of private equity cash available for property transactions. However, there may be some weakness in areas involving prime offices if companies start relocating their HQs.

Private Law

Since 17 August 2015, we have been coming to terms with new EU legislation for succession (known as Brussels IV). Paradoxically, this system is intended to unify the succession laws which apply to an estate, and now, we have voted to leave just at the point when the member states choose to change things for good!

That said, the UK opted out of the full implementation of the legislation, along with Ireland and Denmark, so the impact strangely has been simplified as there was some uncertainty as to how the legislation applied to the UK. The intention is that EU citizens are able to make an election of the law of the jurisdiction of their nationality to govern the whole of their estate (including foreign property located in another EU state). Post-Brexit the UK is clearly a ‘third state’ under the Regulation, like the USA

This means less flexibility in the choice of succession rules and potentially more tax, although double taxation treaties should continue to apply. Our EU neighbours mainly favour a succession system which includes forced heirship, and we could find ourselves in a position where there is less choice on the ultimate distribution of foreign immovable assets.

Employment

Employment law is unlikely to see too many dramatic changes as the UK leaves the EU. Despite the claims that businesses are stifled by EU labour laws, the fact is that many Employment law rights either originated in the UK or have become deeply embedded in UK law as the UK’s attitudes to social issues have evolved. A move to scale back all but the most minor Employment law rights would, in all likelihood, be politically unpopular.

In addition, potential changes could be severely limited by the subsequent trade deal negotiated – other non-EU countries such as Norway and Switzerland have not in practice been able to free themselves of many EU labour laws. In several areas, such as data protection, we are likely to produce laws that mirror EU legislation to ensure we can conduct business effectively.

Such changes as there are could be seen in the areas of collective consultation rights, clarification on Working Time rights such as paid holiday and a repeal of the 48-hour limit, tweaks to the Transfer of Undertakings (Protection of Employment) Regulations 2006, and potentially more significant changes to/removal of the Agency Workers Regulations 2010.

As well as the immediate impact on markets and the business outlook for employers, the referendum result will also throw up longer-term issues, such as the migration of staff in and out of the UK and a potential re-run of the Scottish referendum. Unfortunately, the lack of a clear indication as to what any exit deal would look like makes it very difficult for businesses to plan for it in any practical way at the present time.

Banking and Finance

The financial markets and the banking sector hate uncertainty. The government needs to move quickly to reassure the business community by setting out a clear plan to replace existing trade and other arrangements with the EU and the world as a whole.

Particularly in the short term, the role of the Bank of England will be key. At a time when the monetary tools available to them are already limited, they need to find a way to protect the pound and keep interest rates at a level that enables companies to continue to borrow and invest in what will hopefully be a prosperous economic future for the UK.

Healthcare

The Referendum campaign highlighted a fundamental lack of objective data regarding the impact of EU membership on our healthcare system, and therefore the effects of an exit. However, staffing is likely to be impacted as the NHS, and social care are reliant on overseas migrants to help alleviate intense staffing pressure.

The London location of the EU Medicines Agency has been cited as a positive factor in the NHS’s successful positioning of its R&D capabilities, attracting overseas investment and funding. If the EMA must now relocate, the long-term impact on trials revenue and participation will depend on the strength and depth of relationships already established.

European systems have influenced several of the new models of care programmes in the NHS.  Many independent healthcare operators have pan- European activities. Uncertainty in the short term about implications of an exit could impact collaboration and appetite for financial risk in organisations supporting the NHS.

Education

It is impossible to ignore the fact that the higher education sector, which is presently reliant on the EU as a reliable source of funding, in the form of students, research grants, and capital finance, faces a challenging future, given the uncertain nature of the relationship between the UK and the EU. In the next five years, we may well see a more innovative approach to funding and collaboration required, with institutions looking further afield for support, or collaborations with the private sector.

Intellectual Property

For the moment it is business as usual and trade mark and design owners should not panic – European Union Trade Marks and Registered Community Designs remain valid in the UK, and there is no immediate loss of IP protection.

Once the UK formally gives notice to exit, the EU negotiations will begin on the status of EU marks in the UK and whether any transitional provisions will be required to grandfather across EU trade mark and registered design rights into the UK.

Planning

There maybe harmful consequences for major infrastructure projects as much of the funding comes from Europe including Crossrail and HS2.  How such projects will be funded in the future will apparently be included in the Brexit negotiations.

It is impossible, though, to predict what the wider impact will be on our economy or the property market at this stage but if migration is reduced, then the pressure on housing should be reduced and the housing needs assessed more accurately.

Information Governance

Most of the laws in information governance are derived from European legislation. The Data Protection Act, the Privacy and Electronic Communications Regulations, the Re-use of Public Sector Information Regulations, the Environmental Information Regulations – all of these are examples of UK laws derived from EU directives.  For primary legislation, such as the DPA, leaving the EU will have no immediate effect.  For secondary legislation, such as the EIRs, the situation is more complicated.  These were made under powers derived from the European Communities Act 1972, which is the statute that governs our membership of the EU.

Family Law

Leaving the EU will have a knock-on effect on a range of family matters governed by the current system, which pulls together strands of EU and domestic legislation into a single Family law regime. Changes are likely to be felt most keenly by international families.

In terms of jurisdiction in divorce matters, the current rule of “first in time” as to where proceedings will be dealt with will disappear. Parties will therefore potentially be afforded greater flexibility as to where they choose to divorce. However, matters could become increasingly costly if the proposed jurisdiction is contested and, in these circumstances, parties may well find themselves litigating over jurisdiction issues before the main proceedings are dealt with at all.

Enforcement of existing domestic Orders concerning maintenance, child contact, and domestic violence will also be affected. EU legislation currently works with domestic legislation to provide a relatively simple framework for enforcement of such Orders in other EU member states. Brexit means that the system will not operate as such any longer, thereby potentially undermining the current system of mutual co-operation between Courts.

The law governing international child abduction would also see some changes, albeit that these would be less significant. This is because the main international legislation governing this area is found in the 1996 Hague Child Protection Convention and the 1980 Luxembourg Convention, which will remain in force. However, changes incorporated into these Conventions by later EU Regulations will fall away, leaving gaps to be filled at a later stage. The child abduction regime may be weakened in the interim until a comparable system is put back into place through re-negotiation of bilateral agreements with different states to replicate the lost provisions.

For more information on what leaving the EU will mean for your business visit www.blakemorgan.co.uk/brexit or email brexit@blakemorgan.co.uk

Can Parents Contractually Select the Forum for A Custody Dispute?

Where a custody dispute will be litigated can be a critical concern when voluntarily entering into an agreement regarding custody of children. Child custody issues can be further complicated when dealing with laws across state or country lines.

UCCJEA

“The National Conference of Commissioners on Uniform State Laws promulgated the UCCJEA [Uniform Child Custody Jurisdiction and Enforcement Act] in 1997 ‘to deal with the problems of competing jurisdictions entering conflicting interstate child custody orders, forum shopping, and the drawn out and complex child custody legal proceedings often encountered where multiple states are involved.’” Friedman v. Eighth Judicial District Court, 264 P.3d 1161, 1165 (Nev. 2011) (quoting In re Custody of A.C., 200 P.3d 689, 691 (Wash. 2009)). In the U.S., the UCCJEA (“the Act”) has been adopted by 49 states, the District of Columbia, Guam, and the U.S. Virgin Islands, but not by Massachusetts or Puerto Rico.

Under the Act, once a U.S. state has issued an initial child custody order, it will retain exclusive and continuing jurisdiction over future custody disputes so long as one parent continues to live there.[1] No other state has the authority to act and the original court’s authority does not end until one of two things happens: (1) the original court finds that the child and both parents have moved out of the state, and, it no longer has subject matter jurisdiction, or (2) the original court determines that it is an inconvenient forum and a court of another state or country is a more appropriate forum   This issue can be raised by either party, the original court, or the court of another state.  However, the decision to decline or relinquish jurisdiction must be made by the original court.[2]

Pursuant to the Act, eight factors apply when considering an inconvenient forum motion.  One factor is whether any agreement of the parties exists as to which state should assume jurisdiction. Other factors are: whether domestic violence issues exist; the length of time the child has resided outside the state, distance between possible courts, the parties’ relative financial circumstances, the nature and location of the evidence required to resolve the pending litigation, the ability of each state’s court to decide the issues expeditiously and the procedures necessary to present the evidence, and the court’s familiarity with the pending litigation’s facts and issues.  UCJEEA §207(b).

If the original court decides it is an inconvenient forum, it will stay the proceedings so long as another state promptly commences a custody proceeding.

Hogan v. McAndrew

Is a marital settlement agreement’s negotiated forum-selection clause enough to select jurisdiction?

A forum-selection clause was considered by the Rhode Island Supreme Court in the matter of Hogan v. McAndrew, 2016 WL 556297 (Feb. 12, 2016)  In Hogan, Father and Mother were dual citizens of the United States and the Republic of Ireland. The parties divorced in 2008. In accordance with their property settlement agreement, they share joint custody of three children, and Mother has physical placement. The parties agreed that Mother could return to Ireland with the children.  They stipulated that any future custody disputes would “remain under the jurisdiction of the [Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A], [the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), G.L. 1956 chapter 14.1 of title 15,] and the Rhode Island Family Court.” (Hogan at *p. 2)

The children stayed with Mother in Ireland and visited Father in Rhode Island each summer. Father continued to reside in Rhode Island and, in 2014, filed motions in the Rhode Island Family Court, including an ex parte emergency motion to modify custody and placement. The Court granted the ex parte order. Mother moved to vacate the order and sought to dismiss the action asserting Rhode Island lacked subject matter jurisdiction as the children had resided in Ireland continuously for more than five years.

The Rhode Island Family Court heard the parties on the issue of jurisdiction.  Excepting yearly visits with their father, the children resided in Ireland continuously with Mother from January 2009 to July 2014 while Father resided in Rhode Island.  Father spent multiple weeks with the children each year, with most of this time spent in Ireland.

Father testified that the parties’ agreement that Rhode Island maintain jurisdiction was “vital” to his decision to assent to the children’s relocation to Ireland.  He further testified that “without it” he would “never have agreed to let them go.

After hearing, the Court issued a bench decision declaring that although Rhode Island retained exclusive, continuing jurisdiction pursuant to the UCCJEA, it declined to exercise jurisdiction on the ground of forum non conveniens, noting that Ireland was a more appropriate forum for the dispute to be heard.  The Court noted that a forum- selection clause is one of eight factors and reasoned that its inclusion in the property settlement agreement did not absolutely bind the Court, which must consider all of the factors set forth in the statute.

Father appealed and argued that the hearing justice abused her discretion by failing to afford proper weight to (1) the mutually agreed upon forum-selection clause set forth in the property settlement agreement and in the final judgment of divorce, and, (2) additional factors enumerated under the UCCJEA.

Rhode Island’s highest court vacated the lower court’s decision, holding that the hearing justice abused her discretion by declining jurisdiction on the ground of forum non conveniens.  The Rhode Island Supreme Court explained that before the Family Court, vested with exclusive, continuing jurisdiction over the child-custody dispute, declines jurisdiction on the grounds of inconvenient forum, it must engage in a two-part inquiry.  The Family Court justice must conclude both that the court “is an inconvenient forum under the circumstances and that a court of another state [or a foreign tribunal] is a more appropriate forum.” R.I. Gen. Laws §15-14.1-19(a); See UCCJEA §207.  Before the Family Court can decide that Rhode Island is an inconvenient forum, it must address whether it would be “appropriate for a court of another state to exercise jurisdiction.”  This determination is made by considering all relevant factors, including the eight factors enumerated in the UCCJEA.  Then, if the court concludes based on the evidence that a more appropriate forum exists, the court proceeds to the second step of the analysis and considers whether it would be an inconvenient forum under the circumstances.

The Rhode Island Supreme Court previously addressed the role of forum-selection clauses under the UCCJEA in the case of Sidell v. Sidell, 18 A.3d 499, 504-08 (R.I. 2011).  In Sidell, the defendant father and former resident of Rhode Island filed post-divorce motions regarding child-custody and support orders issued by the Rhode Island Family Court.  At the time he filed his motions neither the parents nor the child resided in Rhode Island.  Defendant father argued that the Rhode Island Family Court was vested with jurisdiction because the parties had stipulated in their marital settlement agreement that Rhode Island would retain exclusive jurisdiction over the matter.  However since none of the parties resided in Rhode Island, the Court determined that Rhode Island courts lacked exclusive continuing jurisdiction under R.I. Gen. Laws § 15-14.1-14(a)(2).  Sidell at 508.The Sidell Court concluded a forum-selection clause does not confer a court with subject matter jurisdiction when such jurisdiction is otherwise absent. Id.

However, in Hogan, the Rhode Island Supreme Court noted there are situations where a court is vested with subject matter jurisdiction and “an enforceable forum-selection clause…settles the proper venue for the cause and prevents ‘a party that has agreed to be bound… [from…assert[ing] forum non conveniens as a ground for dismissing a suit brought in the chosen forum.’” Id at 507 (quoting American Biophysics Corp. v. Dubois Marine Specialties, 411 F.Supp. 2d 61, 62 (D.R.I. 2006)).

In vacating the Family Court’s decision in Hogan, the Supreme Court, noted that the trial justice overlooked Father’s testimony that the forum-selection clause had been a predominant factor in his agreement to allow his children to move to Ireland with their mother and that the parties had entered into the agreement in anticipation of the relocation.  The Supreme Court also noted that the trial justice failed to address the high value that is conferred on judgments by consent.  Further, based on the dearth of information available, the Supreme Court concluded that the hearing justice improperly determined that the seventh factor – “the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence” weighed equally in favour of Ireland and Rhode Island. R.I. Gen. Laws §15-14.1-19(b)(7); UCCJEEA §207(b).

The Rhode Island Supreme Court remanded the matter back to the trial court, with the unstated implication that the trial court will retain jurisdiction.

OTHER CASES –FORUM-SELECTION CLAUSE

In Friedman v. Eighth Judicial Dist. Court of State, ex. Rel, 127 Nev. 842, 844 (2011), the Nevada Supreme Court declined to exercise jurisdiction over an interstate custody dispute in favour of California.  In Friedman, the parties had stipulated in their divorce decree that Nevada would have exclusive jurisdiction over future child custody disputes.  When the dispute arose, both parties and their children had moved to California.  The Court concluded the parties’ agreement to confer jurisdiction on a court that otherwise would not have jurisdiction was ineffective. Id. at 850.

In Horgan v. Romans, 366 Ill.App.3d 180 (2006), the Appellate Court of Illinois, First District, Fourth Division, declined jurisdiction despite the parties’ forum-selection agreement and reasoned to allow such an agreement to trump the other factors to be balanced under  the UCCJEA would contradict the statutory language of section 207 of the Act. Id at 185.

In S.K.C. v. J.L.C., 94 A.3d 401, 418 (Pa. 2014), a Pennsylvania Superior Court held that a forum-selection clause may not be considered when determining whether a court retains exclusive, continuing subject matter jurisdiction. Id.

CONCLUSION

A forum-selection clause and the circumstances surrounding its inclusion in a marital settlement agreement are among the factors to be considered when determining which of two competing forums is more appropriate and whether one is inconvenient relative to a child custody determination.  Although some courts have afforded what appears to be greater weight to such agreements, forum-selection agreements alone are not dispositive and must be weighed against  other factors and circumstances when the dispute arises.

 

[1] Section 105(a) of the UCCJEA provides that a foreign country will be treated as if it is a state of the United States for the purposes of applying Articles I (cooperation principles) and II (jurisdiction provisions) of the UCCJEA.

[2] Exceptions in emergency situations apply and provide for temporary custody orders.

 

Shared Parental Leave

Shared parental leave and pay is available to parents of babies due, or children placed for adoption, on or after 5 April 2015 and allows eligible women to share their right to maternity/adoption leave with their partner.  It provides both parents with the opportunity to consider the best arrangement to care for their child during the child’s first year and was considered a huge step forwards in the quest for gender equality.

The amount of leave available is calculated using the mother’s entitlement to maternity/adoption leave, which allows them to take up to 52 weeks’ leave. If they reduce their maternity/adoption leave entitlement then they and/or their partner may opt-in to the shared parental leave system and take any remaining weeks as shared parental leave. This means their partner could begin to take shared parental leave while the mother is still on maternity/adoption leave.

Take up has however been far lower than envisaged and here, we speak to Sarah Nolan, Head of Commercial and Employment Law at QualitySolicitors Jackson Canter on why fathers are applying in such small numbers.

‘At Jackson Canter, we are finding that there is still a real awareness gap amongst new and expectant fathers that they qualify for shared parental leave. The change in legislation was brought about to enable families to decide how best to care for their children based on their individual personal and financial circumstances.

In spite of this change in the law, it’s clear that it’s going to be quite some time before take up reaches the level originally expected.  There was a blaze of publicity last year when the law came into effect but it seems that the expected rush of fathers looking to spend more time at home hasn’t quite come to pass and there are a number of reasons for this.

Within many families the man will still be the highest earner and due to the pay provisions associated with shared parental leave, it simply isn’t economically viable for the father to take shared leave. As much as we have seen the roles of mothers and fathers evolve in recent years, the fact remains that in the majority of families the man will be the highest paid and families will obviously need to take this into account.  Shared parental leave is paid at just £139.50 per week or 90% of average weekly earnings, whichever is lowest, and so for many families the possibility of the father taking such leave is unfortunately not an option.  Rather than take the hit on their pay, I find that very often fathers will simply take extended annual leave rather than shared parental leave in order to ensure that they continue to receive their full pay.

Industry also has a role to play in encouraging more fathers to view extended leave as a realistic option for them.  Enhanced maternity pay has been available to women for some time with lots of employers offering enhanced pay to their female employees.  However, whilst this is established practice for women, employers have been slow to react to the change in legislation by offering the same privileges to fathers. It’s also saddening that many new fathers feel they need to return to work at the earliest opportunity through fear of missing out on pay rises and promotion. A combination of these factors has almost certainly limited the take-up by fathers of shared leave.

Aside from the economic factors affecting take up, it’s true to say that sharing leave simply isn’t attractive to every family.  I find that mothers very often like to take their full maternity leave and often don’t want to share leave and be separated from their child.  The preference for families is often that the mother will take her maternity leave and the father will take annual leave, for a variety of reasons.

A combination of economic realities, lack of awareness and family preferences is almost certainly responsible for the low numbers of fathers taking up shared parental leave.  There is certainly a long way to go until take up reaches anywhere near the level it was expected to reach but with raised awareness and enhanced pay on offer it seems very likely that the numbers of fathers opting to take shared leave will undoubtedly increase.

How The Probate Fee Consultation Will Impact Estates

The forthcoming hike in probate fees, particularly on more valuable estates, breaks the tacit principle that the fee charged for such a service should in some way be linked to the amount it costs to render. The simple fact of the matter is that it costs no more in administrative terms to issue probate for an estate which is worth £3m than it does to issue it for one worth £55,000, meaning that any increase in the fees respectively charged is punitive in nature and would, at any other time and under any other set of circumstances, be described as a ‘tax’.

In simple terms, the new system will replace the current flat fee on all estates worth more than £5,000 –  £155 if the application is made via a solicitor and £215 if is made personally –  with a banded set of charges. Those estates valued at up to £50,000 will pay no fees, those valued between £50,000 and £300,000 will pay £300, with the fees charged then rising progressively through £1,000, £4,000, £8,000 and £12,000 up to the top rate, charged on estates valued in excess of £2m, of £20,000. This means that the probate fee for the most valuable estates will rise by a factor of an eye-watering 129%. It should also be borne in mind that the figure used to calculate the probate fee charged will be the value of the estate before IHT is paid, and not the actual value which will be passed on to any beneficiaries.

Given that, in the vast majority of cases, the bulk of the value of an estate will be made up of the value of a main property (particularly in areas of the UK, such as the South East, which have seen huge rises in property values) the rise in probate fees will place those representing an estate – generally, let it not be forgotten, a grieving family member – in what is an almost perfect representation of a legal catch 22; the assets of an estate cannot be accessed or realised until probate has been granted, but the fees required to fund probate cannot be raised until the estate can be accessed.

There is, of course, no guarantee, or even expectation, that the person executing a will should automatically have easy access to the kind of funds required to break such a logjam, meaning that, in many cases, it will be necessary to take out a loan.

In the past – when probate fees formed a fairly small aspect of the administering of an estate – many law firms would be happy to advance this money, whilst banks might provide bridging loans. The rising fees, however, will result in both of these scenarios becoming less frequent, and even when a loan is made available there may well be a significant delay between probate being granted and the fees required to pay the loan back being released or realised, particularly if this involves the sale of a property. No matter how the process unfolds, the higher probate fees will result in extra pressure – financial, emotional and administrative – being placed upon the shoulders of the executor of the will.

The argument put forward by the government, that the rise in probate fees will be offset by the increase in IHT allowance thresholds, fails to stand up to inspection on several counts, the main issue being the fact that IHT thresholds and exemptions are finely calibrated, whilst the probate fee is charged across the board on a flat calculation of the worth of an estate. Thus, IHT exemptions only apply to a main residence being passed to a direct descendent, and IHT exemptions are only granted to spouses. Probate fees make no such distinctions; a grieving spouse, deemed fit to be spared the financial hit of IHT, will still be expected to find as much as £20,000 before they can begin to put their affairs in order, as will any other beneficiary, whether that’s a child, charity or larger number of loved ones.

Another alteration to the system – less headline grabbing than the vertiginous increase in fees for obvious reasons – is the fact that there will no longer be a lower fee charged in those cases where probate is administered by a solicitor.  According to paragraph 20 of the consultation document released by the government, probate applications made by non-solicitors generally require more administration than those made by solicitors, so the flat fee in both cases further diminishes any link between the fee being charged and the service being provided, as well as encouraging people to embark upon what can be a fairly complex process without the benefit of professional advice.

The necessity of seeking professional advice when preparing an estate has always been present but has been underlined further by the increase in probate fees, particularly at the top end of the scale, and the fact that these fees – thanks to their across the board nature and fairly crude delineation – seem set to persuade more people to adopt ‘asset depletion’ tactics aimed at lowering the value of their estate below the level at which the higher fees would be charged.  This is a tactic which is particularly likely to be adopted in those cases in which a pound less in overall assets could result in thousands of pounds less having to be paid in probate fees, or in which a matrimonial home, passed from spouse to another, could result in fees of £20,000 having to be paid by a surviving spouse who, whilst inheriting a sufficiently valuable property, might be in no position to pay such a fee up front.

One tactic designed to remove the need for probate is the placing of assets in joint ownership. Whilst this may prove effective, however, it does place people in a particularly vulnerable position. In the first instance, they may be pressured into sharing the ownership of their assets and thus reducing the amount of control they have over them both during their life and when disposing of them after death. Secondly, the issue of varying the particular ownership of assets opens up a wider vista of possible exploitation.

Whilst signing a main residence over to joint tenancy may seem like a fairly simple step to take, more complex estates might require more complex measures, such as transferring assets such as property, investments or business interests, into trusts, thus maintaining control whilst, in legal terms, relinquishing ownership.

In recent years the laws around trusts – as well as those pertaining to the transference of assets to overseas territories – have become much more complex, not least as a reflection of the widespread perception that such financial tools were being used as means of aggressive tax avoidance.

Over all of this looms the shadow of mis-selling, and the fact that the greater the motivation to plan estates in order to avoid higher probate fees becomes, the greater the risk there is of unregulated providers selling products ostensibly designed to achieve this aim, whilst actually being simple money making devices.

A body such as the Solicitors for the Elderly (SFE) is ideally placed to offer advice on the issue of probate fees and all other aspects of estate planning.  Made up of legal professionals from across the UK, such as solicitors, chartered legal executives and barristers, it specialises in offering advice to older people faced with exactly the kind of issues which the increase in probate fees has thrown into stark relief. Not only will the members who make up the SFE have the legal expertise needed to examine the technical intricacies of the situation, they have amassed the experience to understand that issues around estate planning and passing on assets are, for the individuals involved, often as much emotional as they are legal.

Whilst careful estate planning is always to be welcomed, the extreme nature of the rise in probate fees, particular at the top end of the scale, allied to the arbitrary placing of the various cut off points, means that too much focus will be placed upon dragging the net worth of a person’s assets down below a certain level. It must always be remembered that an estate only becomes ‘an estate’ upon the death of the person to whom it belongs. Until that moment it is simply their assets and, in later life, often the source of any income.

The greatest shame of a move such as the increase in probate fees will force people, especially in London and the South-East, to think of their assets in terms of estate planning from an earlier stage and in much more detail. This will result in many people’s day to day finances being altered, to their material disadvantage for a perceived long term aim.

The Bahamas – Protecting the Confidentiality of Trusts

Section 83 of the Trustee Act is an enactment unique to the Bahamian jurisdiction which attempts to codify the rights and obligations of trustees in relation to disclosure. The disclosure of trust information by trustees has been the subject of judicial debate for centuries; and as trusts have developed so too has the jurisprudence on the rights of beneficiaries and third parties to trust information and documentation. Recently, the trust has come under intense scrutiny from regulators and tax agencies alike, so the clarity Section 83 provides not only assists the appointed trustee and designated beneficiaries, but provides comfort to settlors who wish to keep their wishes private and desire to shield his/her trustee from unwanted interference.

Subsections (1) and (2) simply require the trustee to take reasonable steps to inform a beneficiary with a vested interest under the trust of its existence and general nature of their interest or in the event there is no beneficiary with a vested interest, a person who is capable of enforcing the trust and the general nature of the interest entitling him/her to enforce. This formalizes the long settled duty of a trustee to notify the objects of the trust of its existence, first discussed in Lloyd v Attwood (1859) 3 De G. & J. 614 at 649. The subsections clearly limit the notification to the existence of the trust and the general nature of that interest, which settles any doubt as to the scope of the duty to notify.

However, the trustee may escape the aforesaid duty of notification in the event it deems, in its absolute discretion, that such notification would not be in the best interest of the beneficiary(s). Obviously the exercise of this discretion would need to be exercised properly and in accordance with the fiduciary obligation the trustee owes the beneficiaries under the settlement.

Subsection (3) expressly prohibits disclosure of the existence of the trust to (a) any beneficiaries who are interested only contingently; (b) any persons who are only objects of discretionary powers; or (c) any other persons who are not entitled to vested interests under the trust. This does not prohibit disclosure to the class of persons aforesaid if it is necessary or convenient in connection with distributions or in the interest of the trust as a whole. The trustee retains the absolute discretion to disclose the existence of the trust in subsection (4); but the decision to make such disclosures should be made thoughtfully.

Subsection (5) deals specifically with the disclosure of the trust instrument, financial statements of the trust and all financial statements of companies wholly owned by the trustees of the trust. This is helpful as there has been both judicial and academic discussion as to the scope of the term ‘trust documents’. With the burgeoning use of trusts for increasingly diverse purposes, so too has the type of documents attributed to trusts and their management.

The disclosure of trust documentation to beneficiaries often causes trustees angst, as they must balance their duty to protect the confidentiality of trust information against the interests of the beneficiary and their desire to be informed. While beneficiaries who hold a vested interest in the trust are entitled to trust documents, all other persons are specifically excluded from access unless the trustee deems disclosure necessary for the proper administration of the trust and is for the trusts overall benefit. In the event a trustee wishes to disclose documentation, it must consider any request from a beneficiary which has requested confidentiality and determine if confidentiality is in the best interest of other beneficiaries.

Notwithstanding the trustee’s ability to disclose trust documents to vested beneficiaries, subsection (8) prohibits the production of (i) any document revealing the wishes of the settlor; (ii) documents relating to the exercise of any discretion of the trustee; or (iii) any documents disclosing deliberations or reasons for the exercise of the trustee’s discretion. This prohibition extends to any process of discovery or inspection within litigation. One can understand Parliament’s sacrosanct treatment of a trustee’s exercise of its discretion but the provision severely limits the ability of a beneficiary trying to sustain a claim against a trustee for the wrongful exercise of a its discretion.

Section 83 clarifies the common law principle established in In re Londonberry’s Trusts: Peat v. Walsh [1965] Ch. 918 which recognizes a beneficiaries’ entitlement to access trust documents, save for information or documents evidencing the deliberations of trustees when exercising his/her discretionary powers. The Act sets clear parameters as to the scope of the disclosures, the class of persons entitled to disclosure and the type of documents which are accessible.

While the trust instrument can always prescribe additional entitlements of disclosure upon a beneficiary(s), the enactment of Section 83 displays a Parliamentary intention to protect trustees from unwarranted disclosures, preserve the sanctity of the trustee’s discretion and to afford privacy to the settlor’s wishes. Although the Trustee Act was enacted in 1998, section 83 has remained largely untested in the Bahamian Courts. There are no published Bahamian cases which consider the ambit of section 83.

Recently, the English High Court considered the extent of Section 83 in the case of Dawson Damer & Others v. Taylor Wessing [2015] EWHC 2366 (Ch). Here, the beneficiaries of a Bahamian trust sought the disclosure of legal advice provided to the trustee by its English solicitors. Judge Behrens found that the Bahamian Trustee Act differed from the English common law rules and the beneficiaries were not entitled to information that the Trustee was not required to disclose under Section 83. He concluded:

“I have great difficulty in following the concept that the principles of disclosure in relation to trustees and beneficiaries can in some way be separated from legal professional privilege…If and in so far as the exception in paragraph 10 of Schedule 7 is restricted to the English law of disclosure and if and in so far as the documents discoverable under English law are more extensive than those under Bahamian law it does not seem to me a proper use of the 1998 Act to enable the Claimants to obtain documents that they could not obtain in the Bahamian proceedings.”

Judge Behrens’ decision is currently under appeal in England, but his affirmation of the protection afforded to trustees under section 83 and his comparison to the English common law position is noteworthy.

Historically principles of disclosure by trustees were established by the common law. The clarification provided by Section 83 is sure to be challenged in the near future but there is little doubt that its enactment provides the settlor and trustee with a higher level of confidentiality and protection. Its exclusivity to the Bahamian jurisdiction continues to provide the Bahamas with an advantage over other jurisdictions as to the level of protection afforded to trustees of Bahamian trusts.