“Application for Amplification”
29.A draft of the judgment above was circulated with the usual embargo against disclosing it or its substance and a request for corrections. In response, the father submitted an “Application for Amplification [of] Reasons” purporting to be a request in accordance with the principles in English v Emery Reimbold and Strick [2002] EWCA Civ 605 [2002] 3 All ER 385. The applicant:i)Requested the court to “review the decision that the question of making the order sought by the father in his s.8 application does not arise in or in connection with the matrimonial proceedings.”The applicant further submitted that:ii)Given that the divorce petition issued by the Applicant on 21 February 2017 – attached to the application for amplification – included a request for a financial order to be made in respect of both himself and the children, and Form A has not yet been issued, the financial remedy proceedings are “latent” and “ancillary to the divorce proceedings and therefore are either the same as those for divorce or fall under the generic umbrella of “matrimonial proceedings”.”iii)Financial remedies, including child maintenance and support, would be directly affected were the Applicant’s s.8 application to be successful.iv)“The Father fully intends on issuing Form A as soon as the Children Act jurisdiction issue has been resolved.”v)The matrimonial proceedings are “pending”.vi)The Court “has failed to give sufficient consideration to the fact that the financial remedy claims have been applied for albeit not yet commenced.”vii)There is a clear connection between the unresolved financial remedy questions and those being brought by the Applicant under the Children Act 1989: “These financial qua divorce qua matrimonial proceedings and consequent ancillary, extant unresolved claims are therefore pending and propel the children matters into the realm of being in connection with them. The court did not investigate this matter and indeed asked no questions during the hearing at all. Had it done so on this issue, junior counsel for the applicant would have explained this connection fully.”viii)The court should consider how paragraphs 21 to 25 of the draft judgment sit with the submission made by junior counsel during the hearing that the underlying welfare issues that prompt the Father’s s.8 CA 1989 application derive from the divorce in that “ (a) the mother’s behaviour towards A mirrors her behaviour towards the Father during he relationship which prompted the Father to petition for divorce, and (b) the fact that the divorce and separation means that A is no longer protected from that behaviour by the Father.”ix)The Court did not consider whether there was further jurisdictional basis to proceed namely the parens patriae jurisdiction.30.On receipt of this application I had several immediate concerns:i)The application for amplification does not in fact state that the reasons given in the draft judgment were inadequate and require amplification. An advocate has a duty to give the court the opportunity of considering whether there is a material omission (FPR PD30A) but it is another matter to seek to create an omission by making new submissions that the court had not previously received and therefore had not considered. The father’s new application invites the court to reconsider its decision on the basis of new arguments not made at the hearing. It is not therefore an application made in accordance with the principles in English v Emery Reimbold and Strick (above) – see [24] and [25] of the speech of Lord Phillips MR.ii)The application was signed by both Leading Counsel and Junior Counsel even though Leading Counsel was not involved in the hearing before me.iii)Submissions before me did not touch on the question of an application for a financial order; indeed, the petition itself was not within the bundle of documents relied upon by either party. The Applicant’s counsel did not inform the court that there had been no financial settlement or order before the decree absolute. The Applicant father’s statement, which was the only witness evidence before the court, did not mention any financial matters, let alone his intention to issue Form A upon resolution of his s.8 application. Hence the matters set out at 29 (ii) to (vii) above were entirely new submissions based on assertion or evidence which whilst available was not previously put before the court. iv)The court was sitting as the Family Court hearing a s.8 Children Act application. There was no application under the inherent jurisdiction for the court to exercise its parens patriae jurisdiction. There was no evidence directed to that issue and no submissions as to whether the jurisdiction should be exercised.31.Having received the application for amplification I delayed handing down judgment and permitted the Respondent to submit a response before determining how to address the application. I also asked for an explanation of the involvement of Leading Counsel in the period between the circulation of the draft judgment and handing down of the final judgment.32.In response, Dr Proudman noted that the application raised new arguments, not made at the hearing, to which her client has had to respond, causing her additional expense. She submits that:i)An application for a financial order would not fall within the meaning of “proceedings for divorce” under s.2A of the FLA 1986.ii)Even if a financial order application were to be regarded as “proceedings for divorce” it is not pending. The divorce proceedings ended with the decree absolute and no Form A has been issued.iii)The parties’ financial positions have changed significantly since the divorce was concluded. Whilst Dr Proudman addresses communications between the parties and between their lawyers as to financial matters I do not regard it as appropriate for me to take those matters into account. There has been no evidence adduced in relation to those matters. However, it is clear that the parties have adopted separate lives, each financially independent, in different countries.iv)There is no connection between any financial order application and the grounds for the father seeking a child arrangements order, which are the conduct of the mother and the best interests of the parties’ daughter.v)The divorce petition (which both parties now invite me to consider) relied upon the moodiness and lack of communication of the mother. Those allegations have no connection whatsoever with the allegations now raised by the father in relation to the mother’s treatment of their daughter.vi)There is no application for the court to exercise its parens patriae jurisdiction and in any event this is not a case in which the court should exercise that jurisdiction. The circumstances are not exceptional – there is no evidence before the court that the child concerned requires the court’s protection. There is a significant difference between accepting that it might be in a child’s best interests to live with the other parent and accepting that the circumstances justify the exercise of the parens patriae jurisdiction.33.I have been informed that Leading Counsel was instructed by the solicitors for the father after the circulation of the draft judgment to provide advice and representation on the issue of jurisdiction. Ms Cayoun has told me that she was not aware of the instruction to Leading Counsel at that time. 34.In my view, the father’s application for amplification is in fact a request for the court to reconsider its decision on the basis of new arguments not made at the hearing. No complaint has been made about the inadequacy of the reasons for the decision as set out in the draft judgment. The court had previously directed a preliminary hearing on jurisdiction and the applicant should have made his case at the hearing. No new evidence emerged following the circulation of the draft judgment that was not previously available, and in such circumstances it is not acceptable practice to use the opportunity afforded by an invitation to submit corrections to a draft judgment, to request the court to reconsider its decision or to make new arguments - Egan v Motor Services (Bath) Ltd [2007] EWCA Civ 1002, [2008] 1 All ER 1156, Gosvenor London Limited v Aygun Aluminium UK Limited [2018] EWHC 227 (TCC), Re O (a child) (judgment: adequacy of reason) FD v A local authority and others [2021] EWCA Civ 149, and WM v HM (Financial Remedies: Sharing Principle: Special Contribution) [2017] EWFC 25, [2018] 1 FLR 313 per Mostyn J at [39].35.In the circumstances, it would have been open to the court to disregard the new submissions. However, the mother asks the court to seek to avoid further unnecessary litigation and if the father’s new arguments are not addressed, he may be more likely to seek to make them on appeal. Hence, I shall briefly address those new arguments, none of which persuade me to reconsider my decision in this case.36.Form A is used to give notice of intention to make an application for financial provision. On its face it states that it is for use when applications for financial provision are made “in connection with” matrimonial or civil partnership proceedings (divorce, dissolution etc).” The father has not yet used Form A and the assertion that he intends to do so is not supported by evidence from the father himself. There has been no opportunity to the mother to test the assertion and it appears to be opportunistic. Hence, even if an application for a financial order were capable of constituting “proceedings for divorce”, as the applicant now claims, no notice of intention to make such an application has been given and so no such application is “pending” or “extant”. A prayer within divorce proceedings which have been concluded with a decree absolute does not, in my judgment, mean that there is an extant or pending application for a financial order unless or until notice of an intention to apply for an order, using Form A, has been issued.37.In any event, if I am wrong and there is an application for a financial order which is extant or pending and which should be regarded as proceedings for divorce within the meaning of s.2A of the FLA 1986, and therefore “matrimonial proceedings” within the meaning of s.2(1), the father’s application for a child arrangements order is not “in connection with” those proceedings. The prayer for a financial order does not, without more, create a connection with the application for a child arrangements order. I repeat the reasoning at paragraphs 21 to 25 above – the application for a financial order does not alter that reasoning or my conclusions. I regard the father’s attempt to engineer a connection between the applications as unconvincing and opportunistic. It does not, in my judgment, have substance.38.The father now draws the court’s attention to parts 5 and 6 of the petition in which he set out the alleged factual basis for his application for a divorce. It is submitted that the mother’s conduct towards A – the basis of the s.8 application – “mirrors” her conduct towards the father as set out in the petition. I do not agree: the father’s current allegations of abuse of A, including physical abuse, against which he cannot protect her, bear no relation to the allegations in the petition that the mother was moody and uncommunicative. 39.There has been no application, nor previously any submission, that the court should exercise its parens patriae jurisdiction. The father made a s.8 Children Act application in the family court and the jurisdiction to make s.8 orders was listed for hearing as a preliminary issue. I do not accept the criticism that a family court should, on its own initiative, have invited further submissions on the exercise of the parens patriae jurisdiction. The circumstances do not obviously raise the question of whether that jurisdiction should be exercised. The mother has had no opportunity to submit evidence directed to that issue and it would be wrong for me to make any determination on it. There are clearly factual disputes about A’s circumstances and welfare. I have had no opportunity to hear A’s voice. However, I note the judgment of Moylan LJ in Re M (A Child) [2020] EWCA Civ 922, [2020] 3 WLR 1175 that the court should proceed with great caution before exercising the parens patriae jurisdiction and must identify sufficiently compelling circumstances before doing so. I also note that in the present case the application is not for an order for the return of A to this jurisdiction but for an order that A lives with the father in Saudi Arabia. Whilst I do not decide the issue, it is clear that there would be very considerable obstacles in the way of any application by the father for the court to exercise its parens patriae jurisdiction. 40.By addressing the further submissions made on behalf of the applicant, I do not seek to condone the practice of making new arguments, or inviting the court to reverse its decision, in response to receipt of the draft judgment. It is wasteful of the court’s time and has led the respondent to incur further, avoidable expense. Nor do I regard it to have been appropriate for the solicitors for the father to have shared the draft judgment with newly instructed Leading Counsel without first seeking the permission of the court