An analysis of Re (Children: s.37 Direction) [2025] EWHC 2464 (Fam)
9 January 2026
A legal analysis of Re (Children: s.37 Direction) [2025] EWHC 2464 (Fam), focusing on the High Court’s intervention in entrenched private law proceedings and the significance of the use of sections 37 and 38 of the Children Act 1989.
1. Context and background
This case arose out of long-running and highly conflicted private law proceedings concerning four children, referred to as A, B, C and D. The litigation history was characterised by:
- Findings of abuse against the father, and
- Findings of alienating behaviour by the mother.
Despite the private law framework, the court was increasingly concerned that the children were being exposed to serious emotional harm, and potentially wider welfare risks, arising from the parents’ conduct and the entrenched nature of the dispute.
The case therefore reached a point where the court considered that private law mechanisms were no longer sufficient to safeguard the children.
2. The statutory framework
a. Section 37 Children Act 1989
A section 37 direction empowers the court, in private law proceedings, to require a local authority to investigate whether care or supervision proceedings should be issued where it appears that a child may be suffering, or likely to suffer, significant harm.
It represents a threshold-crossing moment, signalling that the court considers the concerns to be potentially serious enough to justify public law intervention.
b. Section 38 Children Act 1989
Under section 38, the court may make interim care orders (ICOs) once public law proceedings are underway or anticipated, where there are reasonable grounds for believing that the threshold criteria are met and where such orders are necessary to safeguard the children pending final determination.
The making of ICOs alongside a s.37 direction is exceptional, but not unlawful, where the court considers immediate protective measures are required.
3. Why the court intervened
The High Court’s decision reflects a cumulative assessment of risk rather than a single incident. Key factors included:
- The co-existence of abuse and alienation, creating a toxic emotional environment for the children.
- The failure of private law orders to bring stability or reduce harm.
- The risk that the children were being placed in an intolerable loyalty conflict, undermining their emotional and psychological development.
- The concern that without decisive intervention, the children would continue to be exposed to chronic harm through parental conflict.
The court was clear that this was not a routine escalation, but a necessary response to a situation that had become unmanageable within the private law sphere.
4. The making of interim care orders
a. Legal justification
The court was satisfied that:
- There were reasonable grounds to believe that the children had suffered, or were likely to suffer, significant harm.
- The harm was attributable not only to discrete acts, but to patterns of parental behaviour over time.
- Immediate protective oversight by the local authority was required pending the outcome of the s.37 investigation.
Accordingly, interim care orders were made in respect of all four children.
b. Significance of ICOs for all siblings
The decision to make ICOs for each child underscores an important principle:
Where harm arises from a shared family dynamic, the court is entitled to treat siblings collectively rather than artificially separating their welfare analysis.
The court recognised that differential orders would risk fragmenting decision-making and potentially compounding harm.
5. Key principles reinforced by the judgment
The case reinforces several important themes in modern family law:
- Private law disputes can become public law cases
Where parental conflict, abuse, or alienation reaches a level of significant harm, the court will not hesitate to involve the state. - Alienation can justify public law intervention
Particularly when combined with abuse findings, alienating behaviour may amount to emotional harm of a degree sufficient to engage the public law threshold. - The court’s duty is proactive, not passive
The court is not confined to the remedies sought by the parties; it must act where child protection concerns emerge. - Sibling welfare must be viewed holistically
Harm affecting family dynamics can justify uniform protective orders across all children.
6. Practical and procedural significance
For practitioners, the case is a reminder that:
- Repeated, entrenched litigation can itself become evidence of harm.
- A s.37 direction is not merely investigative; it can be the gateway to immediate public law orders.
- Courts are increasingly alert to the combined impact of abuse and alienation, rather than treating them as competing narratives.
7. Conclusion
Re (Children: s.37 Direction) [2025] EWHC 2464 (Fam) illustrates a decisive judicial response to a private law case that had crossed the threshold into child protection territory. The making of a section 37 direction, coupled with interim care orders under section 38, reflects the court’s conclusion that the children’s welfare could no longer wait for parental resolution.
The case stands as a clear example of the court’s willingness to reframe private law disputes as public law concerns where the facts demand it.
For family law advice and family court representation contact Stephanie Heijdra direct access family barrister via sheijdra@winvolvedlegal.co.uk
A legal analysis of Re J (Surrogacy: Adoption Order) [2025] EWHC 2960 (Fam) , focusing on the court’s reasoning, the risks identified by the judge, and its wider implications for surrogacy law and practice. 1. Overview of the case In Re J (A Child) (Surrogacy: Adoption Order) [2025] EWHC 2960 (Fam) , Ms Justice Henke described the proceedings as a “cautionary tale” illustrating what can go wrong when strangers meet through social media to pursue surrogacy arrangements and take risks around conception . The case concerned J , a child aged approximately 2½ years , whose early life had been overshadowed by protracted and highly complex litigation . The proceedings were significantly prolonged because the parties misled the court about genetic testing , undermining trust, delaying welfare decisions, and complicating the legal route to securing J’s permanent family placement. Ultimately, the court made an adoption order , notwithstanding that adoption is generally regarded as a last resort in family law. 2. Factual background a. Informal, unregulated surrogacy The surrogacy arrangement was informal and privately arranged , with the parties having met via social media . There was no robust legal or professional framework governing the arrangement. Decisions around conception were taken without sufficient regard to: future legal parenthood, evidential clarity (particularly genetics), or the child’s long-term welfare. b. Misleading the court A critical feature of the case was that one or more parties provided misleading information to the court about genetic testing . This had serious consequences: It delayed the determination of who was genetically related to the child . It obstructed the court’s ability to assess: parental responsibility, lawful routes to parenthood (parental order vs adoption), and the child’s welfare. It fundamentally undermined the integrity of the proceedings . Ms Justice Henke treated this conduct as a grave matter, emphasising the court’s reliance on honesty in cases involving children. 3. Legal framework a. Surrogacy and parental orders Under English law: Surrogacy arrangements are not enforceable . The surrogate is the child’s legal mother at birth . Intended parents usually seek legal parenthood via a parental order under the Human Fertilisation and Embryology Act 2008, provided strict criteria are met, including: a genetic connection, proper consent, and compliance with statutory time limits. In this case, the misleading evidence about genetics fatally undermined the possibility of a lawful parental order. b. Adoption as a last resort Adoption represents a complete legal severance from a child’s birth family and is permissible only where: nothing else will meet the child’s welfare needs, and it is necessary and proportionate . The court was therefore required to confront whether, despite the surrogacy context, adoption had become the only viable route to provide J with legal security and permanence. 4. The court’s reasoning a. Welfare as the paramount consideration Ms Justice Henke reaffirmed that J’s welfare throughout his life was the court’s paramount consideration . By the time of the final hearing: J was already 2½ years old . He required certainty, stability, and legal clarity . Further delay would have been positively harmful . The court was clear that the litigation itself had already caused unacceptable delay in securing permanence. b. Consequences of dishonesty A central theme of the judgment is that: Misleading the court in children proceedings can radically alter outcomes . The parties’ conduct had: closed off less interventionist legal routes, necessitated greater state and judicial intervention, and directly contributed to adoption becoming unavoidable. The judge’s description of the case as a “cautionary tale” is directed not only at the parties, but also at others contemplating informal surrogacy arrangements . c. Why adoption was justified The court concluded that: No lawful parental order could now be made. There was no alternative order that could provide J with: secure legal parenthood, stability, and protection from further litigation. Adoption, though drastic, was necessary and proportionate in J’s best interests. The adoption order was therefore made not because adoption was ideal , but because every other route had been rendered unworkable . 5. Key themes and principles The judgment reinforces several important principles: Surrogacy without safeguards carries profound risks Particularly where parties are strangers and arrangements are made online. Honesty with the court is non-negotiable Misleading evidence can fundamentally reshape a child’s legal future. Delay is inimical to welfare The court will not permit procedural confusion to deprive a young child of permanence. Adoption can arise in unexpected contexts Even in surrogacy cases, adoption may become the only lawful solution. 6. Wider significance This case has broader importance for: Practitioners advising on private surrogacy arrangements . Intended parents relying on informal or international conception methods . Courts grappling with the intersection between surrogacy law and adoption law . It sends a clear warning that cutting corners at the outset of surrogacy arrangements may lead to the most intrusive outcome possible . 7. Conclusion Re J (Surrogacy: Adoption Order) [2025] EWHC 2960 (Fam) stands as a stark reminder that child-focused transparency and legal foresight are essential in surrogacy cases. Ms Justice Henke’s judgment makes clear that where adults take risks, mislead the court, or fail to plan lawfully, the consequences may fall irreversibly on the child —and the court will act decisively to secure that child’s welfare. For family law advice and family court representation, contact Stephanie Heijdra family law barrister via sheijdra@winvolvedlegal.co.uk.
Mr Justice Harrison allowed an appeal in part against the duration of a section 91(14) Children Act 1989 order. 1. Background and procedural context The case arose from exceptionally long-running private law proceedings concerning two children. Over many years, the litigation had become entrenched, adversarial, and damaging to the children’s welfare. In response, the trial judge imposed a section 91(14) order , restricting one parent’s ability to issue further applications without leave of the court. Crucially, the order was made for a very substantial period (effectively indefinite or quasi-indefinite), reflecting the history of repeated applications and the strain placed on both the children and the court system. The appellant did not challenge the making of a s91(14) order in principle, but instead challenged its duration , arguing that it was excessive and unlawful. 2. Legal framework: section 91(14) Children Act 1989 Section 91(14) allows the court to bar further applications without permission where such restriction is necessary to protect the child and/or the other party from harmful or abusive litigation. Well-established principles include: A s91(14) order is exceptional , not routine. It must be proportionate and clearly justified . It should normally be time-limited , with any extension requiring fresh justification. It must not be used as a punitive measure against a parent. The jurisprudence emphasises that the court must balance protection of the child against the fundamental right of access to the court . 3. The appeal: core issue The central issue before the High Court was: Whether the duration of the s91(14) order was lawful, proportionate, and properly reasoned. The appellant accepted the litigation history but argued that the length of the restriction went beyond what was necessary to meet the welfare objectives of the Children Act. 4. Decision of Mr Justice Harrison a. Appeal allowed in part Mr Justice Harrison upheld the need for a section 91(14) order , confirming that: The litigation history plainly justified some restriction . The welfare of the children required protection from further destabilising applications. However, the appeal was allowed in part because of concerns about duration and proportionality . b. Duration was excessive The judge held that: An open-ended or very long s91(14) order risks becoming disproportionate , even in extreme cases. The original judgment did not sufficiently justify why such an extended duration was necessary as opposed to a shorter, reviewable period . Courts must guard against using s91(14) as a de facto permanent bar on a parent’s engagement with the family justice system. The absence of a clear review mechanism or rationale for the chosen timescale was a material error. c. Substitution rather than removal Rather than discharging the order altogether, Mr Justice Harrison: Substituted the duration with a shorter, defined time limit , consistent with existing authority. Emphasised that future applications, if any, could be filtered through the leave requirement , preserving judicial control without unjustified exclusion. This approach maintained child protection while restoring proportionality. 5. Key principles reinforced by the judgment The case restates and strengthens several important points of practice: Duration matters as much as justification Even where a s91(14) order is clearly warranted, its length must be independently reasoned. Indefinite restrictions are rarely lawful Courts must be slow to impose restrictions that effectively exclude a parent for most or all of a child’s minority. Reviewability is critical Time-limited orders respect both welfare concerns and Article 6 / Article 8 rights. Filtering, not punishment Section 91(14) is a gatekeeping mechanism, not a sanction. 6. Practical significance This decision is particularly important for practitioners dealing with: Vexatious or obsessive litigation in private law children cases. Appeals focusing not on whether a s91(14) order should be made, but on how long it should last . Drafting judgments that impose litigation restraints: explicit reasoning on duration is essential . The judgment provides appellate authority for the proposition that even the most extreme litigation histories do not justify abandoning proportionality . 7. Conclusion Re A and T (Children) [2025] EWHC 3052 (Fam) confirms that section 91(14) orders remain a vital protective tool, but one that must be used with precision . Mr Justice Harrison’s partial allowance of the appeal underscores a clear message: The longer the restriction, the stronger and clearer the justification must be. Stephanie Heijdra is a highly experienced Family Law Barrister, with a background in Complex Financial Disputes and Children Related Disputes. For family court representation and family law legal advice contact Stephanie via sheijdra@winvolvedlegal.co.uk
An analysis of The Secretary of State for Work and Pensions v LR & Anor [2025] EWFC 271 (B) , a significant decision on avoidance of disposition in the context of child maintenance enforcement . Procedural Background Applicant: Secretary of State for Work and Pensions (SSWP), acting on behalf of the Child Maintenance Service (CMS) Respondents: LR – the non-resident parent liable to pay child maintenance PT – the recipient of the property transfer The application was brought under section 32L Child Support Act 1991 , which allows the court to set aside a disposition of property where it is made with the intention of defeating the enforcement of child maintenance liabilities. Factual Background LR had accrued substantial child maintenance arrears assessed by the CMS. Following the accrual (or at least in the context) of those arrears, LR transferred an interest in property to PT. The CMS alleged that: The transfer had the effect of reducing LR’s assets available for enforcement; and The intention behind the transfer was to defeat or prejudice CMS enforcement action . PT resisted the application, arguing the transfer was: Legitimate; Made for proper reasons; and Not intended to defeat maintenance obligations. Legal Framework Section 32L Child Support Act 1991 This provision mirrors (but is distinct from) s.37 Matrimonial Causes Act 1973 and allows the court to: Set aside a disposition if: The disposition has the effect of defeating enforcement of child maintenance; and The disposition was made with the intention of doing so. Key features of s.32L: The court may infer intention from timing and circumstances . Transfers to connected persons attract particular scrutiny. The burden shifts once CMS shows a prima facie case of avoidance. Issues for Determination The court had to determine: Whether the transfer was a “disposition” within the meaning of s.32L; Whether the transfer had the effect of defeating or reducing the CMS’s ability to enforce arrears; Whether LR had the requisite intention to defeat enforcement; and If so, whether the court should exercise its discretion to set the transfer aside. Court’s Analysis & Reasoning (a) Effect of the Transfer The court found that the property transfer significantly reduced LR’s enforceable asset base . As a result, CMS enforcement options (charging orders, sale, etc.) were materially weakened. This satisfied the “effect” limb of s.32L. (b) Intention to Defeat Enforcement The judge emphasised that direct evidence of intention is rarely available . Intention can be inferred from: The timing of the transfer; LR’s knowledge of CMS arrears and enforcement powers ; The absence of convincing alternative explanations; and The relationship between LR and PT. The court concluded that the only realistic inference was that the transfer was designed to place the property beyond the reach of CMS. (c) Respondents’ Explanations The explanations advanced by LR and PT were found to be inconsistent, unsupported, or implausible . The court rejected the argument that the transfer was part of ordinary financial or family arrangements. (d) Discretion Given the statutory purpose of the Child Support Act — protecting children’s financial support — the court held that discretion should be exercised robustly in favour of CMS. Outcome The court set aside the property transfer under s.32L Child Support Act 1991 . The property was treated as if the disposition had not occurred , allowing CMS to pursue enforcement against it. The decision restored CMS’s ability to seek: Charging orders Orders for sale Other enforcement remedies Significance of the Decision (a) Strong Enforcement Message The case reinforces that: CMS has powerful tools to challenge asset-shielding behaviour; Attempts to defeat child maintenance obligations will be scrutinised closely. (b) Parallels with Matrimonial Finance The reasoning closely mirrors s.37 MCA 1973 cases: Substance over form Inference of intention Focus on practical effect Practitioners can draw analogies between financial remedy avoidance cases and CMS enforcement proceedings . (c) Connected Persons at Risk Transfers to partners, relatives, or close associates are particularly vulnerable to challenge where arrears exist. (d) Policy Emphasis The judgment underscores that child maintenance is not an optional debt — it enjoys strong statutory protection. Practical Take-Aways for Practitioners For CMS / SSWP: Gather clear evidence of: Timing of arrears vs transfer Knowledge of liability Lack of consideration Inference of intention is sufficient — direct proof is not required. For Respondents: Legitimate transfers must be: Properly documented Supported by clear consideration Capable of explanation independent of enforcement risk Weak or post-hoc justifications are unlikely to succeed. For Advisers: Warn clients that asset transfers after CMS involvement are high risk . Consider early negotiation or payment plans rather than attempting asset re-structuring. Concluding Observation SSWP v LR & Anor [2025] EWFC 271 (B) is an important reminder that the Family Court will take a robust, child-focused approach to enforcement. Where property is moved to avoid child maintenance, the court will not hesitate to unwind the transaction to protect the child’s entitlement. For family law advice and family court representation, contact Stephanie Heijdra public access family barrister via sheijdra@winvolvedlegal.co.uk
A detailed analysis of Re D (Threshold Findings and Final Orders at IRH) [2025] EWCA Civ 1362 — a recent and important Court of Appeal decision reshaping how care-proceedings thresholds must be handled. Summary & Facts The appeal concerned a decision made at an Issues Resolution Hearing (“IRH”) by the lower court — care and placement orders were granted under s. 31 Children Act 1989, after the parents did not respond to the local authority’s threshold statement. At first instance, judgment was very brief (just over two pages), made in the absence of the parents, and simply stated the judge was “satisfied on the balance of probabilities that the threshold is met.” There was no detailed fact-finding, no link in the written judgment between alleged facts and statutory threshold grounds, and no elaboration showing how evidence satisfied the criteria for “significant harm / risk of harm.” The court’s order included a “standard-form” provision: if parents failed to respond to the threshold allegations by a date, they would be “deemed to accept” the threshold. Legal Issues & Court of Appeal’s Key Findings The Court of Appeal (Baker LJ, Cobb LJ, Miles LJ) allowed the appeal, annulled the care and placement orders, substituted an interim care order, and remitted the case for fresh case-management. Key issues and findings: 1. Judicial Duty to Independently Assess Threshold Section 31(2) CA 1989 obliges the court — not the parties — to satisfy itself that threshold criteria are met before making care/placement orders. That requires a judge to make clear findings of fact and link them to statutory grounds. The mere fact of non-response or absence cannot substitute for proof. 2. Rejection of “Deemed Acceptance” Mechanism The practice (endorsed in Standard Form Orders) of treating parental silence or non-response as “deemed acceptance” of threshold allegations was struck down as inappropriate. Cobb LJ warned that such practice risks converting threshold determination into an “administrative” rather than judicial act — undermining procedural fairness, burden of proof, and the court’s independent evaluative role. 3. Inadequacy of Reasoning for Life-Altering Orders Even when proceedings are uncontested or parties absent, a judge must still give reasons — not minimal or perfunctory statements — when making removals/care/placement orders. The lower court’s failure to do so was “wholly deficient” and undermined confidence in the decision’s fairness. 4. Risk in Rushing Finality at IRH The decision casts serious doubt on the use of IRHs as final hearings, where there has been little or no engagement by parents, and where evidence has not been robustly tested. The court emphasized that delays alone do not justify summary disposal without proper fact-finding. Significance — Why This Case Matters It reaffirms the role of the court (not procedural default or parental silence) in deciding threshold — safeguarding Article 8 rights and procedural fairness. It invalidates a common “standard-form” shortcut : “deemed acceptance” clauses should no longer be relied on to impose care orders without proper scrutiny. It raises the bar for IRHs : practitioners must expect detailed fact-finding, even where a case seems uncontested. Pushing for finality at IRH will likely be harder. It delivers strong guidance to practitioners : threshold documents must clearly plead facts, link them to statutory grounds, and avoid vague “report of” language untested by evidence. It restores importance of individual justice over administrative convenience — even in overloaded public-law lists. Practical Takeaways for Practitioners For Local Authorities and Guardians: Do not assume silent non-response = “win.” Prepare full, evidence-based threshold statements clearly linking facts to statutory grounds. Be ready to present evidence and expect thorough judicial scrutiny, even in uncontested cases. For Respondent Parents: Absence or failure to respond does not automatically lead to care orders — challenge any “deemed acceptance” or bare findings. If possible, engage in the process — even minimal engagement may force careful fact-finding rather than summary order. For Practitioners Advising Early — e.g. in pre-proceedings or on drafting: Ensure threshold documents are robust. Avoid generic language. Warn clients about consequences of non-response — but also the risk that “default” may be challenged under Re D. When instructing, prepare skeleton arguments urging thorough judicial evaluation, especially where parties are absent/unrepresented. Limitations & Context This is not a wholesale ban on IRH-final orders — but strong warning: IRH may be used only with full judicial rigour . Where evidence is overwhelming and parents have fair opportunity to respond, a well-reasoned IRH final order may still be legitimate. The decision does not change underlying statutory test — threshold remains high; the difference is in how rigorously the test is applied . For family law advice and family court representation contact Stephanie Heijdra Direct Access Family Barrister via sheijdra@winvolvedlegal.co.uk
Analysis of C v S [2025] EWFC 254 — a costs-only judgment in private law children proceedings under the Children Act 1989 (CA). Facts & Procedural Background The case concerned two children, X and Z, of which C (“M”) is the mother and S (“F”) is the father. The substantive hearing took place on 13 May 2024; the main judgment was delivered on 13 August 2024, although core findings were notified earlier (3 June 2024). The costs judgment was issued by Dexter Dias KC (sitting as a Section 9 judge) and is directed purely to the costs application arising out of the earlier proceedings. The father claimed costs of about £169,415.65 , later revised down to £123,825.43 for the formal application. The mother counter-argued the figures were exaggerated. The case was described as a “prolonged, deeply acrimonious” private children dispute, with litigation over many years. Legal Issues Issue 1: Costs in principle Whether an award of costs is justified in private children proceedings under the Children Act 1989. The starting point: general practice in CA proceedings is not to make costs orders against parties, but there is a discretion to do so in “exceptional circumstances” — including where a party has behaved unreasonably or vexatiously. The judge considered whether M’s conduct justified departing from the usual position. The judge noted “grave reservations” about M’s awareness of contact suspensions and failure to engage constructively with ADR. Issue 2: Proportion / Amount If costs are ordered, what proportion of the claim is reasonable and what factors should adjust the figure (e.g., ability to pay, the impact on children, contributions of parties). Evidence of conduct, whether ADR was attempted, duplicative hearings, length of litigation, and the welfare of the children all weighed in assessing amount. Judgment & Reasoning The judgment reaffirmed that although the default is no costs order in private children cases, the court retained discretion to make one where there has been reprehensible or unreasonable behaviour . On the facts: The judge found that M had engaged in repeated litigation, had missed opportunities for ADR, and had not engaged constructively. The father’s conduct was comparatively more constructive. On the amount: The amount claimed by the father was adjusted downward, reflecting excessive claimed costs, and the court scrutinised each component of the claim (hearings with no costs order originally, duplicated work). On ability to pay and impact: The judge also emphasised that a costs order should not undermine the children’s welfare (e.g., if the paying parent is the primary carer). The disposal section: The judge ordered a costs award in favour of the father, but sized & phased in a way considered proportionate given the context of children’s proceedings. (Exact figure and payment terms are in the judgment.) Significance & Practical Take-aways Key message : Even in private law children proceedings, costs orders can be made — the default “no costs” is not absolute. Conduct matters hugely: litigants must engage with ADR, avoid unnecessary hearings, cooperate with processes and not use litigation as a tactical weapon. Early settlement / ADR is strongly encouraged — failure to make good use of it can count heavily against you in costs. Practitioners should always evaluate, at an early stage, the risks of a costs application in children proceedings if the other side may argue unreasonable behaviour. It emphasises the balancing act: the welfare of the children remains central, so orders should not jeopardise children’s needs or stability. The judgement may serve as a warning to “serial” children proceedings litigants: continued contestation and failure to resolve issues bears costs risks. Limitations & Considerations The case is very fact-specific: long history of contested litigation, findings of untruthful or obstructive behaviour on the mother’s part — results may differ in more modest or less conflicted cases. The judgment addresses costs only, not the substantive child arrangements decisions — so it is primarily a costs precedent, not substantive children law. As with all discretion-based costs orders, the outcome depends heavily on the judge’s view of each party’s conduct, the litigation history, and the welfare context. For family law advice and family court representation contact Stephanie Heijdra direct access family barrister via 02071014682 and sheijdra@winvolvedlegal.co.uk
Here is a detailed analysis of BM v MB v GM v X (2025) EWFC 129 , a key Financial Remedies case dealing with asset transfers, identification of marital property and avoidance of disposition orders. Facts & Procedure The case involved a long marriage, with significant wealth: a family business (valued at approx. £20.26 m) and substantial landholdings adjacent to the family home. The husband (H) had transferred approximately 25% of his shareholding in the family company into a trust (for the children) and had also transferred two (or three) parcels of land to an LLP or similar vehicle. The wife (W) applied under s 37 of the Matrimonial Causes Act 1973 to set aside the transfers, arguing they were made to defeat her financial claims. The court had to determine: (a) whether the transfers should be set aside, (b) the valuation and classification of assets (marital vs non-marital), and (c) the appropriate remedy (lump sum, pension share etc). The hearing ran for a substantive period with expert valuations of the business, land and trust interests. Key Legal Issues Avoidance of Disposition (s 37 MCA 1973) The statutory test: whether the disposition(s) had the effect of defeating or reducing the party’s claim, whether they were made with that intent, and whether the court should exercise its discretion to set them aside. Whether the transfers to the trust/LLP were part of estate planning/tax planning or were deliberately structured to frustrate the wife’s claim. How to treat third-party arrangements (trust, LLP) where husband retains beneficial control. Identification and Valuation of Marital Assets What counts as martial/acquired assets: the business, uplift, land, trust interests. Apportioning between marital and non-marital: e.g., inherited or pre-marital shares vs marital growth. Use of appropriate valuation methods: whether discounts for minorities, illiquidity, or long-term ownership apply. The role of the sharing principle under s 25(2)(a) MCA 1973 and how the court should exercise discretion once the asset base is identified. Remedy and Exercise of Discretion Once assets are identified, how the court determines lump sum, pension sharing, pension offset, capitalisation of maintenance, etc. Costs consequences: conduct of parties, negotiation behaviour, use of expert evidence. Judgment & Reasoning The court set aside the impugned transfers of shares and land under s 37 because it found: the effect of the transfers was to reduce the wife’s claim; the transfers were made with the requisite intention to defeat the claim; and discretion should be exercised to set them aside. On valuation: The court rejected significant discounts (for minority holdings, illiquidity) because the evidence did not support them, noting the business could only realistically be sold by the shareholders together. On the identification of marital assets: The court applied an “intuitive approach” (per Robertson v Robertson (2016) EWCA Civ 1866) rather than a strict formulaic percentage deduction, due to lack of historical accounting evidence. On matrimonialisation: The court emphasised that inherited shares might be ring-fenced, but uplift attributable to marital endeavour is shared. The court did not require a separate enquiry into special contributions unless specifically raised. On remedy: The husband was ordered to pay a lump sum of approximately £5.37 million to the wife, the wife to transfer her shareholding back, the husband to discharge the wife's director loan account, and a pension share of 16% awarded. On costs: The wife was sanctioned in costs for failure to negotiate openly, despite the husband’s asset transfer misconduct. The husband paid the costs of the s37 application. Significance & Practical Take-aways This judgment is a strong anti-avoidance message : transfers made near (or during) proceedings, to family trusts/LLPs, with effect of defeating claims, will be set aside. It demonstrates that beneficial ownership and substance matter more than form (trust/LLP structures will not immunise assets from sharing). Valuation: It reinforces that courts will not automatically apply discounts without evidence, especially where the assets are held by a controlling interest. The use of the intuitive apportionment approach under Robertson is reaffirmed — useful where historical breakdown data is missing. On matrimonialisation: Even inherited assets if significantly enhanced during marriage may attract sharing. On costs and conduct: Both parties’ conduct matters. Failure to negotiate reasonably can lead to cost sanctions even if one party engaged in asset diversion. Practical advice: Early forensic asset tracing, consideration of s 37 risk in financial remedy cases, and early estimation of the asset base are crucial. Limitations / Considerations Fact-sensitive outcome: The extent of the transfers, business valuation scale, and evidence of intention make this case specific. Other cases with less stark features may lead to different outcomes. Not a binding precedent at appellate level — Recorder’s decision under Financial Remedies Court, albeit persuasive. The intuitive apportionment, while practical, leaves some uncertainty for parties who prefer formulaic clarity. Complexity and cost: Such high-value cases demand expensive expert evidence and lengthy hearings. The conduct of both sides and negotiation early may be determinative. If you are looking for a divorce lawyer for matrimonial finance, please contact Stephanie Heijdra via sheijdra@winvolvedlegal.co.uk. For Family law advice and family court representation contact Stephanie Heijdra direct access family barrister via sheijdra@winvolvedlegal.co.uk or 02071014682
An analysis of KU v BI [2025] EWFC 296 (B) — a decision of note in the Family Court concerning the validity of a foreign (customary) marriage. Facts & Procedure The petitioner (KU) issued a divorce petition on 31 May 2024. The parties allegedly entered a “customary marriage” in a foreign country on 30 March 2013. The respondent (BI) denied the validity of that ceremony — argued that no legal marriage took place under the law of that foreign country (and thus the petitioner could not obtain a divorce). The respondent was already in a valid statutory marriage at the relevant time. The court directed a joint expert on the foreign country law (customary marriage law) to advise. The final hearing was on 5 September 2025, before Deputy District Judge (Williams) at Leicester Family Court. Legal Issues Whether the ceremony on 30 March 2013 constituted a valid customary marriage under the foreign country’s law (the lex loci celebrationis) — a key step in recognition in England & Wales. If the foreign marriage is valid, what is the appropriate remedy under English law: a divorce, a decree of nullity, or a non-marriage declaration (which affects availability of financial remedy rights)? Whether the respondent’s existing statutory marriage and domicile triggered the polygamy rule under s 11 of the Matrimonial Causes Act 1973, rendering the subsequent marriage void in England & Wales. How to handle issues of absence or proxy ceremonies under the foreign law: specifically whether the parties’ non-presence in the country and lack of formal “handing over of the bride” invalidated the customary ceremony under foreign law. Judgment & Reasoning The court held the foreign customary marriage was valid and recognised in this jurisdiction. On the question of ceremony absence: The court found that although the parties were not physically present in the foreign country on the ceremony date, the evidence (payment of dowry/bride-price, video/photographs, celebration in England the same evening, long cohabitation and three children) showed the intent and ceremony structure complied with the foreign law requirements. On the expert’s evidence: The court was critical of the expert’s reliance on outdated first-instance authorities and small sample jurisprudence, noting the expert had not heard the respondent’s oral evidence (including his later admissions). The judge concluded that further expert inquiry would be disproportionate. Remedy: The court said that if it had found the ceremony invalid under foreign law, it would have granted a decree of nullity rather than treating the relationship as a non-marriage — meaning access to financial remedy rights under s 21 MCA 1973 still preserved. Costs: The respondent’s costs claim was refused; the petitioner was legally aided and made no costs claim. Significance & Practical Take-aways This case reaffirms the two-stage approach in foreign marriage validity: (1) apply the law of the place where the marriage was celebrated (lex loci celebrationis) to validity, (2) apply English remedial concepts (void, voidable, non-marriage) under lex fori. It emphasises that substance over form is pivotal — even where parties are not physically present in the foreign jurisdiction, if the customary law allows proxy participation and the ceremony meets the requisite elements (such as dowry etc), the marriage may be valid. For practitioners: when challenging validity of a foreign marriage, addressing the foreign law requirements (presence, bride-price, handing over) is key, but also fact-finding on conduct (cohabitation, children, reliance) matters. The decision underscores that if a marriage is recognised, financial remedy rights attach — so parties cannot escape those by denying the marriage. On costs: unsuccessful challenges to validity may incur cost risks; even though the petitioner was aided in this instance, the case highlights the financial exposure in such disputes. Importantly, the court noted that even in a marginal foreign validity scenario the remedy of nullity may be appropriate and still preserve rights — a strategic point for solicitors advising clients where foreign marriage validity is in doubt. Limitations & Considerations The case is fact-specific: the combination of evidence (children, cohabitation, ceremony elements) is strong. Other cases with weaker factual matrix may reach different outcomes. The court did not purport to extend the law but applied existing principles (e.g., Berthiaume, Assad v Kurter) under private international law. Practitioners should check the exact wording of the foreign country’s customary law , especially around proxy ceremonies, presence, and formalities, and may still need specialist foreign law advice and translation of evidence. If you are looking for a divorce lawyer for matrimonial finance, please contact Stephanie Heijdra via sheijdra@winvolvedlegal.co.uk
Heard in the Family Division of the High Court of England and Wales: Facts & Procedure The appeal concerned a residence / weekday-living arrangements for two children (Child A aged 8, Child B aged 7) following separation of the parents. The mother (Respondent) had relocated with the children from County X to County Y without giving prior notice to the father (Appellant). The father remained resident in County X; the distance between the two homes was approximately 70 miles. Ahead of the hearing, a report (and an addendum) under s.7 of the Cafcass / by a Family Court Adviser (FCA) recommended that the children remain living with the father during the school week and with the mother at weekends, with an additional mid-week overnight contact with the mother in recognition of the distance. The Recorder (Judge Clapham) however ordered that during school term time the children would live with the mother from Monday morning (delivery to school) until Friday evening, and with the father from Friday evening until Monday morning, and the children would attend the school in County Y. The father appealed. The High Court (MacDonald J) dismissed the appeal. Legal Issues Key issues raised on appeal included: Whether the Recorder had erred in departing from the FCA’s recommendation without giving adequate reasons. Whether the Recorder placed disproportionate or improper weight on the children’s wishes and feelings (given their ages, possible parental influence, and the impact of parental conflict). Whether the Recorder failed to adopt a holistic approach to the relocation and contact/weekday residence issues (particularly the impact on the relationship with the father of shifting weekday residence). Judgment & Reasoning Departure from FCA recommendation The court reiterated the established principle: while the FCA (or welfare officer) recommendation is important, the judge is not bound to follow it — the court must make its own decision having considered the welfare of the children, but if departing from the recommendation the judge must give clear and adequate reasons . The Recorder explicitly addressed the FCA’s report and the addendum, summarised and engaged with the evidence (including CPOMS school records that showed Child A was sad and missed the mother). The Recorder made specific factual findings (unchallenged on appeal) including a finding that the father had not facilitated additional telephone contact between the children and the mother (contrary to his evidence) and that the children had become familiar with the new county and attending school in County Y. The Recorder enumerated reasons for his different conclusion from the FCA recommendation, including: changed circumstances since the FCA’s report (both parents had moved, children had settled) impracticality of mid-week overnight contact given the 70 mile distance children’s consistent wishes supported by letters and CPOMS entries the father’s lack of cooperation regarding indirect contact the Recorder’s assessment that the children were familiar with both locations and the new school. On appeal, MacDonald J found the Recorder’s reasoning clear and adequate , grounded in evidence, and thus within the scope of reasonable discretionary decision-making in children proceedings. Children’s Wishes and Feelings The children had expressed wishes orally and in written letters. The Recorder assessed their reliability (particularly Child A) and bore in mind their ages. The court accepted that the Recorder did not treat the wishes as determinative, but as an important factor in the overall welfare assessment. The father argued that parental influence and conflict should have been given more attention by the Recorder; the appellate court found no error in the Recorder’s approach. Holistic welfare/relocation approach The Recorder applied the welfare checklist (s.1 of the Children Act 1989) and conducted a global/holistic analysis of the children’s welfare (including relocation implications, schooling, distance issues, contact arrangements). The appellate court found no failure of approach. The appeal court emphasised the need for caution: appeals in children proceedings are only permitted where the judge’s decision was wrong or outside the available “generous ambit of reasonable disagreement”. Significance & Practical Take-aways This case underscores that while welfare officer / CAFCASS recommendations carry substantial weight, they are not binding . Judges may depart from them provided they give adequate, transparent reasons. The decision re-emphasises the threshold for appellate intervention in children cases: the first-instance judge’s discretion is wide and interference will be rare unless the decision is wrong. Detailed factual findings (for example on parental behaviour, contact facilitation, distance and schooling) strengthen the judge’s reasoning for departure from an expert recommendation. It highlights key pitfalls for appealing parties seeking to challenge departure from CAFCASS/section 7 recommendations: you must show the judge’s reasoning was inadequate, or the decision was outside the range of reasonable outcomes — mere disagreement is insufficient. Practitioners should ensure that where a court diverges from a CAFCASS recommendation the judgment clearly sets out the reasons for departure, how evidence (including schooling records, contact logs, children’s wishes) was considered, and how the welfare checklist has been applied. For parents, the case illustrates that changes in circumstances (such as relocation, stability of schooling, contact facilitation) can justify departure from a prior recommendation — but the change needs to be properly evidenced and reasoned. Potential Limitations / Considerations The decision does not create a new principle or revise the law: it applies existing authorities (such as W v W [1988], Re B (Care Proceedings) [2013], Re S (2007) etc) rather than innovate. Because the case was dismissed, it may have less value for parties seeking precedent in favour of appealing departures from CAFCASS recommendations. Each case remains fact-sensitive: the reasoning turned on particular findings (distance, schooling change, contact facilitation) which might not exist in other cases. For family law advice and family court representation contact Stephanie Heijdra family barrister via sheijdra@winvolvedlegal.co.uk
key facts, legal issues, reasoning, and implications. Summary Factual & Procedural Background The case involves Daniel Hesketh , who was committed for contempt in the face of the court following a family hearing on 7 January 2025 in St Helens Family Court concerning the welfare of his two children. Present in court at the hearing were: District Judge Gray, Hesketh, a Court Associate, counsel for the mother (by video link), and a security officer. Hesketh’s conduct during that hearing allegedly included: Abusive, insulting or threatening language directed at the judge and others (accusing “you are nothing but child offenders,” etc.). Interrupting, shouting over the judge , impeding the delivery of judgment and generally disrupting proceedings. Threats of physical violence , including statements such as “if I see you outside this courtroom … I am gonna punch the f**king lights right out of ya,” and threats involving the judge’s family. Disruptive behaviour generally impeding the administration of justice. The formal Committal Notice , issued 21 February 2025 by Cobb J (as acting Family Presiding Judge), set out detailed particulars of the alleged contempt, grounded in the transcript, an audio recording, and witness statements from Judge Gray and the security officer. The committal proceedings followed FPR Part 37 (family procedure rules). The Notice included the defendant’s rights (to silence, legal representation, etc.). There were difficulties effecting personal service of the Committal Notice. After repeated failed efforts, the court permitted alternative service (by email, text, etc.). Multiple hearings ensued. On 13 June 2025, in Hesketh’s absence, the court found the allegations proved beyond reasonable doubt. A sentencing hearing was fixed for 1 August 2025. Hesketh did not attend that hearing either. The court decided to proceed to sentence in his absence. The court had to consider the existence of parallel criminal proceedings . The police had investigated the same events; by July 2025, Hesketh had been charged (Public Order Act, non-molestation order breach). Holding & Sentence The court held that Hesketh’s actions constituted contempt in the face of the court , in each of the categories alleged (abuse, interruptions/disrespect, threats, disruption). In sentencing, the court adopted an approach analogising criminal sentencing (drawing on H.M. Attorney General v Crosland [2021] ), assessing culpability and harm , considering aggravating and mitigating factors. The court imposed concurrent custodial terms : Abuse → 4 months Interruption/disrespect → 1 month Threats → 4 months Disruption → 3 months All to run concurrently, giving a total custodial sentence of 4 months . The court declined to suspend the sentence, concluding that the seriousness of the conduct required immediate custody. A warrant of committal was to issue; upon execution, Hesketh would be taken to prison. He retains a right of appeal to the Court of Appeal (Civil Division) without needing permission; appeal must be filed within 21 days. Analysis & Commentary Legal Principles & Framework Contempt in the face of the court This is the gravest category of contempt: acts committed openly in court that disrupt or insult the court, impede its function, or threaten its officers. It is punishable summarily (i.e. without the usual full trial process) under the Contempt of Court Act 1981, s 14 and associated Family Court contempt regulations. Because it occurs “in the presence of the court,” the court has inherent jurisdiction to maintain authority and order. Standard of Proof & Procedure The civil committal is quasi-criminal in nature; the standard is beyond reasonable doubt . The defendant is entitled to Article 6 protections (fair hearing, right to legal assistance) given the punitive nature of contempt sanctions. The Sanchez v Oboz checklist was applied (as repeated in family contempt jurisprudence) when deciding whether to proceed in absence (service, notice, fairness, waiver, prejudice, delay) The court must balance expedition (to uphold the authority and prevent delay) with fairness . Sentencing Approach The court used Crosland (2021) as guiding authority to treat contempt sentencing similarly to criminal sentencing: assess seriousness, reflect denunciation/deterrence, consider mitigation, and avoid excessive sentences. The court also referred to Re Greg Hazeltine [2024], and family contempt precedents, to calibrate appropriate levels and to ensure consistency. In family cases, courts often show sensitivity to the emotional context, but the presence of threats, prolonged abuse, and interference with court functions tend to justify custody. Strengths & Notable Features Firm protection of judicial dignity and order : The judgment underscores the necessity that courts must not be subject to abuse, threats, or disruption, especially by litigants. Disciplined procedural handling : Despite the defendant’s evasiveness, the court adhered to procedural safeguards (service, notice, multiple listings) before proceeding. Clear articulation of sentencing methodology : The reasoning on how each category was assessed and then aggregated shows useful transparency. Addressing parallel proceedings : The court did not shy from proceeding despite concurrent criminal charges, explaining the rationale (avoid confusion, delay, priority of clarity). Deterrent effect : The sentence sends a strong message that serious contempt in family proceedings will be met with custodial sanctions, not indulgence. Risks, Critiques & Caveats Proceeding in absence is delicate : Although the court concluded Hesketh chose non-engagement, there is always a risk that genuine reasons exist for non-attendance (e.g. incapacity, lack of notice). The court must be scrupulous in verifying fairness. Coordination with criminal proceedings : There is tension when the same conduct is subject to civil contempt and criminal charges. The court’s decision to proceed can raise concerns about double punishment or procedural unfairness. No mitigation or engagement from defendant : The absence of any mitigation or apology restrained the court’s discretion. In cases with some contrition, the outcome might differ. Intensity of language and threats : The severity here is obvious; but borderline cases (less vitriolic language or milder interruptions) may require careful calibration. First-instance nature : As a High Court (Family Division) decision, it carries persuasive weight, but future appellate guidance could refine the boundaries further. Practical Takeaways for Practitioners Litigants must restrain conduct in court Even in emotionally charged family hearings, litigants (especially litigants in person) must be warned about the risk of contempt if conduct becomes abusive, threatening, or disruptive. Clear pre-hearing protocols (e.g. security, warnings, exclusion power) are essential. Contempt proceedings require strict adherence If considering committal for contempt, ensure strict compliance with service rules, notice, and fair process (e.g. rights, opportunities to answer). Be cautious before applying to proceed in absence; always apply the relevant checklist (Sanchez v Oboz) and ensure Article 6 fairness. Sentencing advocacy matters Where possible, secure mitigation, remorse, or admissions to reduce the risk of immediate custody. Early admission and cooperation may reduce the severity of sentence under the Crosland approach. Coordinate with criminal processes In cases where the same incident spawns criminal charges, coordinate (where feasible) between civil and criminal jurisdictions (police, CPS, court). Ensure the civil court is informed of the status of related criminal matters. Strong deterrent posture Use this case to caution clients that threats or insults to judges or court officers will not be tolerated. It is likely that family courts will increasingly take a hard line on contempt, especially in times of increasing pressure and heightened public scrutiny. For Family law advice and family court representation contact Stephanie Heijdra public access family barrister via sheijdra@winvolvedlegal.co.uk
1. Facts & Procedural Posture Parties & context The case arises in contested financial remedy proceedings between spouses (or former spouses) (i.e. the “Applicant” and “Respondent” are anonymised as BC and BC ) under the Matrimonial Causes Act regime. The core dispute is not the division of assets per se, but whether portions of the Husband’s “open offer” (i.e. a proposal made to settle) may be struck out or redacted because they refer to conduct or statements made during a private FDR (pFDR) . Private FDR and the contested words By consent (and ordered at the First Appointment), the parties undertook a 2-day private FDR (i.e. outside the court process, before an independent evaluator). After the first day, the pFDR evaluator provided an “indication.” The Wife withdrew from the process (leaving with her legal team). The Husband, the following day, made an open proposal in correspondence, containing text which referred (in bold) to the Wife’s decision to depart, and to the timing relative to the evaluator’s indication. The Wife applied for those phrases to be excluded or redacted, contending they breached the confidentiality or privilege tied to the pFDR process. The Husband contended the wording concerned only “logistical details” , not substantive offers or the indication, and thus did not breach pFDR privilege. The parties incurred combined legal costs of £37,000 on that discrete (very limited) dispute over roughly 46 words of text—a figure the judge remarked upon as “startling”. Order sought & judge assignment issue Because the contested material would be seen by the allocated trial judge (if that judge heard the redaction application), the Wife applied to have her redaction/striking-out hearing before a different judge. Justice Peel heard the application and made the decision to strike the offending words from the Husband’s open offer. 2. Legal Issues The case turns on the interplay of: The privilege / confidentiality (without prejudice / without prejudice “meetings”) protections around FDR (and pFDR) under the Family Procedure Rules and their Practice Directions (especially PD9A). The permissible content of open offers (which are “on the record”) and whether referencing conduct in the FDR/pFDR process is allowed. The relationship (and possible tension) between “primary principles” of the Financial Remedies Court (FRC) and rules / practice directions lower in the hierarchy. The question of proportionality and costs in doing a micro-dispute over isolated wording. More concretely, the judge needed to decide: Whether the Husband’s phrasing improperly referred to statements or conduct in the pFDR, thereby violating pFDR privilege/confidentiality. Whether the prohibition of such references is absolute (save rare exceptions) or subject to a fairness exception. If the references were improper, whether redaction or deletion was required (i.e. the remedy). Whether the “primary principles” (which provide that parties should tell the FRC judge that offers were made and an indication given) permit disclosure of those two categories, or whether they are trumped by more restrictive rules. Whether the costs in this kind of application can or should be sanctioned or limited, given the disproportionate cost over 46 words. 3. Legal Framework & Key Authorities FPR / PD9A and FDR confidentiality FPR 2020, r 9.17(1) : The FDR appointment is treated as a “meeting for the purpose of discussion and negotiation.” Paragraph 6.2, PD9A : This is critical. It states that parties must approach the FDR openly and without reserve, and that non-disclosure of the content of such meetings is “vital,” forming an essential prerequisite for a fruitful FDR. It provides that evidence of anything said, or any admission made in the FDR, is inadmissible (save in very exceptional circumstances). Re D (Minors) (Conciliation: Disclosure of Information) [1993] Fam 231 : the classic authority for the confidentiality of conciliation processes, often cited in this context. Thus, the default legal stance is that what is said or done in the FDR (or pFDR) is off-limits for later use, to preserve the frankness required by settlement negotiation. Private FDR (pFDR) and its status The judgment emphasises (drawing on prior cases) that the same confidentiality ethos applies to private FDRs as to court-based FDRs. The President’s Circular (Financial Remedies Court Pilot Phase 2, 27 July 2018) supports—and even encourages—the use of private FDRs, suggesting that parties may agree to them and that they serve the same settlement function. Judicial statements, e.g. in GH v GH (2024) (cited in this judgment), also outline the role of FDR (including pFDR) in facilitating settlement, enabling an independent tentative evaluation of case strengths/risks. Procedure / Primary Principles of the FRC The Financial Remedies Court – Primary Principles (11 January 2022), at paragraph 8, state that when a private FDR has occurred, the next FRC judge will ordinarily wish to be told that offers were made and an indication given (so that the judge is satisfied a thorough FDR exercise has occurred). However, in BC v BC , Peel J holds that those “Primary Principles” must not be taken to override the more restrictive rules / practice directions that govern confidentiality. He considers that the Primary Principles go “too far” in effectively requiring disclosure of whether offers or an indication were given. Peel J notes that there is no citable authority to support that disclosure of those specific items is permissible. Other supporting authorities / doctrines: Passmore on Privilege (4th edn, 2020) : on the prohibition of using without prejudice communications or behaviours in later litigation. Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 : which deals with refusal to engage in ADR and costs consequences, and principles about scrutinising ADR processes. Dyson LJ’s reasoning that the court should not investigate why a negotiation failed is invoked by Peel J. V v W [2020] EWFC 84 : Sir James Munby’s refusal to permit reliance on a court FDR transcript in later proceedings, affirming the “absolute bar” nature of FDR privilege. 4. Peel J’s Reasoning & Holding Permissible and impermissible references Peel J draws a distinction between: Basic factual details of the FDR/pFDR, which can ordinarily be disclosed (or should be), and Content of the discussion, deals, offers, admissions, conduct which must remain privileged. He agrees that the following factual matters are disclosable / permissible (and indeed often required under standard court orders): Whether the FDR/pFDR took place, and whether both parties attended. The identity of the pFDR evaluator and the parties’ legal teams. The location/venue of the pFDR. The length/time spent in negotiation. These are “unremarkable facts” and do not threaten the confidentiality of the negotiation itself. Indeed, such facts may be required to assure the court the process was properly engaged. However, Peel holds that disclosure or references to whether offers were made, or an indication given, intrude upon the substance of the pFDR process and would undermine the integrity of the procedure. He sees the Primary Principles’ “requirement” to disclose that offers were made and an indication given as incompatible with the higher-level confidentiality rules. So he rejects their application to override PD9A. Peel is also concerned about ancillary disputes if courts permitted inquiry into conduct or offers: subsequent litigation would erupt over who said what, when, or why someone left, which would erode the clean divide between negotiation and adjudication. Application to the husband’s wording & remedy On applying these principles to the precise 46 words under dispute, Peel finds that they do more than merely record logistical circumstance. They are expressive , casting the Wife’s exit as “retrograde,” “impulsive,” and referring to timing immediately after “receiving” the evaluator's indication. That goes beyond factual disclosure and converts into attack or characterization of conduct arising in the negotiation process. Because they cross the line into referencing the negotiation, they are not permissible under FDR privilege / PD9A as qualified by his interpretation. Thus, Peel orders the **offending words be struck out (i.e. deleted) from the open offer. Costs remarks and proportionality Peel is clearly critical of the costs incurred: £37,000 for fighting over 46 words . He describes this as “startling.” Although his judgment does not engage in a detailed costs order discussion (i.e. whether one side should bear the costs), the tone signals judicial impatience with disproportionate micro-litigation over privilege. Warning against a developing (undesirable) practice Peel warns against a trend whereby parties, after leaving a pFDR, seek to blame the other party’s conduct in open correspondence, in order to influence the trial judge’s view of their willingness to settle. He says that such usage is improper and should cease. 5. Significance & Impact Reinforcement of strong confidentiality for negotiation This case reinforces that FDR / pFDR confidentiality is robust and should not be eroded by parties trying to leak negotiation dynamics into subsequent litigation. It puts parties and practitioners on notice that conduct or characterisation of opposing negotiation behaviour cannot be slipped into open proposals. Limits to “Primary Principles” in disclosure BC v BC clarifies that the FRC Primary Principles are not carte blanche to override the stricter obligations in rules/PDs. Where rules require confidentiality, the Primary Principles must yield. Chilling tactical behaviour The judgment seeks to deter strategic behaviour in private FDRs (e.g. leaving suddenly, claiming sabotage, then using that in open offers). Peel’s warning suggests that such tactics will not be tolerated or accepted as fodder in open proposals. Costs and proportionality spotlight The case spotlights how disproportionate cost battles can arise even from narrow privilege issues. It may push parties to think twice before litigating minutiae over redactions. Guidance on drafting open offers / correspondence Practitioners will now have firmer guardrails: open offers must avoid alluding to negotiation conduct (especially post-indication). Any references should focus tightly on the substance of the offer itself. Potential tensions / need for careful drafting of orders Going forward, parties may need to ensure that their procedural / First Appointment orders narrowly restrict what can be included in open proposals—and that redaction or sealing mechanisms are considered in advance where disputes may arise. 6. Observations, Critique and Questions Absolute approach vs fairness exceptions : Peel takes a fairly strict line, rejecting even references to offers or indication. Some might argue for a modifiable fairness exception (in rare cases) to permit limited disclosure where justice demands it. But Peel’s concern about undermining the negotiation process is persuasive. Risk of overdeterrence : Could this lead to overly cautious drafting, with parties shying away from legitimate contextual framing in open offers? Practitioners will need to balance clarity with strict neutrality. Cost discipline needed : The £37k cost over 46 words is indeed striking; courts may need firmer control over costs in micro-disputes to prevent disproportionate fights. Uncertainty around what is “logistical” vs “characterisation” : There remains borderline cases where parties might argue something is a neutral factual detail (e.g. “the meeting ended at 4.15 pm”) vs an inference about conduct. The line may not always be easy to delineate. Limited guidance from case law : Peel notes the absence of citable authority allowing disclosure of offers/indications. This implies there is space for future development (perhaps at appellate level) to further refine the boundary. Enforcement in private FDRs : As private FDRs are out-of-court, there is limited capacity to police conduct in real time (unlike in-court FDRs). The judgment’s deterrent value depends on parties being risk averse to subsequent redaction applications. Interplay with cost orders / conduct sanctions : The decision leaves open whether a party can be sanctioned for abusive conduct in pFDRs (e.g. leaving abruptly or seeking to recharacterise). Peel’s warning suggests he supports such accountability—but how that will manifest (cost orders, penal measures) will need elaboration. For family law advice and family court representation contact Stephanie Heijdra Family Barrister via sheijdra@winvolvedlegal.co.uk