BF v LE [2023] EWHC 2009 (Fam)31 July 2023

Published: 18/09/2023 14:56

Mrs Justice Lieven. Appeal on the grounds (1) W lacked mental capacity at the final hearing on 9 September 2019 before DJ Parry and (2) a lack of participation directions and special measures. W suffered mental health issues and had alleged H had been a perpetrator of domestic abuse. The FDR judge made an order preventing both parties from relying on ‘conduct’ issues. W submitted evidence from her GP and a psychologists dealing with her reports of domestic abuse and its impact on her in relation to the issue of her earning capacity. At the final hearing W was a LIP. There were no special measures in place meaning that W had to cross-examine H, and she could see H in the room. There was a further hearing in October 2019 as the terms of the substantive order could not be agreed. On this occasion, W was represented by a solicitor, and she signed the final order.

W applied for leave to appeal the order of DJ Parry, which was refused by HHJ Rowland in January 2020. W then applied to set aside the final order in September 2020, which was refused by DJ Solomon. In March 2022, W applied for permission to appeal DJ Solomon’s decision out of time (16 months after the final order of DJ Parry). The judgment contains a useful summary of the differences between setting aside and appealing an order, and cases where High Court judges have overturned decisions of the Family Court on the grounds that the judge failed to make participatory directions; [39]–[48].

HELD, Ground 1: Refused as DJ Solomon’s decision could not be said to be ‘wrong’ or ‘unjust’ due to a serious procedural or other irregularity, and the judge was correct in her decisions relating to capacity. W relied upon a report by a clinical psychological produced before she applied to set aside the final order of DJ Parry. This report only dealt with W’s capacity during the hearing in October 2019 and not with whether W had capacity in September 2019 when DJ Parry heard evidence and determined the issues. The fact that W continued to work as a solicitor throughout this period was relevant to her mental capacity. The court noted that mental illnesses and disorders do not equate to a lack of mental capacity.

Ground 2: A lack of special measures and participatory directions would not lead to an automatic conclusion that the decision should have been set aside. The legal question must be whether the failure to do so amounted to a breach of natural justice. There was nothing to suggest that there was an unjust outcome or that the lack of special measures would have had any impact on the outcome. In the present case, the outcome was for the sale of the former matrimonial home which ‘was a very standard and expected outcome’. Mrs Justice Lieven noted the delay and since then the FMH had been sold and H had moved on with his finances. Also, these matters should have been raised in the original appeal of DJ Parry’s final order.

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