Family lawBy David Burrows, David Burrows, BristolJudgment summons: standard of proofMubarak v Mubarak [2001]1 FLR 673, Bodey J and [2001] 1 FLR 698, CA Mubarak v Mubarak was noted, at first instance, in [2001] Gazette, 25 January, 46.

Now it is fully reported at [2001] 1 FLR 673, and in the Court of Appeal at [2001] 1 FLR 698.

At first instance, before Mr Justice Bodey, the case turned on two issues.

First, could the court lift the corporate veil in respect of the husbands companies to enforce a large lump sum against him? It was held that, because of the interests of others, it could not (and now see further consideration of piercing the corporate veil in Trustor AB v Smallbone (2001) The Times, 30 March, Sir Andrew Morritt, VC, where a company was held to be the alter ego of Mr Smallbone).Secondly, was it permissible in the context for the court to accede to the wifes application for a judgment summons (section 5 of the Debtors Act 1869)? Mr Justice Bodey made a suspended committal order upon it.In the Court of Appeal, the husband sought to set aside the Debtors Act order, mostly on grounds that the application for it had not been Human Rights Act compliant.

In allowing his appeal, the court poured cold water on the judgment summons procedure.

Lord Justice Brooke, in particular, drew attention to the fact that a judgment summons involves the liberty of the respondent.

Therefore, the burden of proof is on the applicant to a standard beyond reasonable doubt.

If the judgment summons procedure is to be used it should be in accordance with Practice Direction: Committal Proceedings (see for example, the White Book) which Mubarak can be regarded as applying to all family proceedings (though the court urged the President of the Family Division to issue an appropriate practice direction).

And any such application must bear in mind, at least, European Convention of Human Rights article 6(3)(a) and (d): that a person must know the case against him and have an opportunity to cross-examine witnesses.

The court and expert evidence in children proceedings Re A (Children) [2001] NLJ 16 February, Wall J In Re A (Children) [2001] NLJ 16 February, Mr Justice Wall tells us that it is for the court, in children cases, to decide what expert evidence should be obtained.

Under Civil Procedure Rules 1998 rule 35.4 only expert evidence for which the court has given permission can be put before the court; but that rule, specifically, does not apply to children proceedings.

There, it is still necessary to turn to Rules of the Supreme Court 1965 order 38 rule 36: expert evidence can be adduced by agreement of the parties or leave of the court.

Children may only be examined with the leave of the court (Family Proceedings Rules 1991 rule 4.18).

Documents can only be produced to experts with the leave of the judge or district judge (FPR 1991 rule 4.23; and see Best Practice Guidance of June 1977 relating to children proceedings); and on terms that any report so obtained is released to all parties (Re L (Police Investigation: Privilege) [1996] 1 FLR 731, HL).

These are the present limits on the courts control of the instruction of potential medical witnesses.

The judge criticised solicitors for obtaining from a clinical psychologist a report based on a video taken by the father (that is, not by direct examination of the children).

The judge may, understandably, have disliked what was done.

He may have regarded it as contrary to good practice.

In Re L, the House of Lords seemed to envisage the possibility of parties still being able to obtain expert evidence independently.

However, on the available authorities it is not clear that the father and his representatives acted wrongly especially while the regrettable state of affairs persists, that CPR 1998 does not apply to most aspects of family proceedings.

Particularly, part 35 (expert evidence) does not apply to children proceedings.

Once the solicitors had obtained the evidence, the question of what they could do with it was quite another matter.

This would depend entirely on the court, absent the consent of the mothers solicitors to the evidence being put before the court.Refusal of consent to adoption: human rightsRe B (Minor: Adoption order) (2001) The Times, 23 March A parent who had maintained contact with his child in this case the parent concerned was the father could not be described as unreasonable when he objected to an adoption order being made in favour of foster parents.

Such an order could only be made in Re B (Minor: Adoption order) (2001) The Times, 23 March, CA if the fathers objections could be held to be unreasonable (Adoption Act 1976 section 16(2)(b)).

The court could not so hold, in the light of the fathers continuing relationship with the child and where the order was objected to by the guardian ad litem and an experienced child psychiatrist.

In holding the fathers withholding of his consent unreasonable, the judge had also paid insufficient regard to the fathers right to family life under European Convention of Human Rights article 8.Civil Procedure Rules 1998 and judicial discretion Recently, the Gazette carried a report under the headline Inconsistent judges plague Woolf reforms, which stated that civil litigators are concerned over lack of consistency in judicial decision-making (see [2001] Gazette, 29 March, 1).

The subject was discussed in the Comment column in the same issue.Mounting costs are a disappointment as well, though in most other respects the reforms are greeted with enthusiasm.As to consistency in judicial decision-making: civil litigators probably do not have the experience which family lawyers have of the operation of judicial discretion.

This is said with no disrespect, but with full acceptance of the following: give two judges an issue arising out of the same set of facts and, exercising their discretion alone, it is almost inevitable that they will each reach a different conclusion.

Apply the same sets of facts to similar families and the conclusions will diverge even more.

Apply extensive rules to a procedural issue and the divergence will narrow again, perhaps even be eliminated.

Whether rightly or wrongly the Civil Procedure Rules 1998 have left wide areas for judicial discretion; and civil lawyers find the results awkward.

Anyone who practises in the family jurisdiction would say that was inevitable.Running through this note the unclear procedure in family proceedings under Debtors Act (Mubarak) and expert evidence in children proceedings (Re A) are references to the unevenness of the introduction in family proceedings of Civil Procedure Rules 1998.

Family lawyers are entitled to ask how much longer this unevenness will last.