L v G

Where an appeal has already been heard within the court of trial, a further appeal faces the substantial barrier imposed by Access to Justice Act 1999, section 55. A challenge to the ancillary-relief scheme in the Matrimonial Causes Act 1973, section 25, as incompatible with Convention rights is not arguable merely because other European states adopt different systems. Member States retain a margin of appreciation in organising financial rights and responsibilities following divorce. A child born outside the marriage falls for consideration under section 25(2)(b), and the parent's legal and moral responsibilities to that child do not stand on an independent footing. Complaints about capital division or costs do not overcome the section 55 hurdle.

The proceedings concerned ancillary relief between affluent spouses. After a trial before District Judge Million, orders were made which dissatisfied the husband. His appeal was dismissed by the President in a judgment dated 7 May 2003. The husband then renewed an application for permission to appeal, following refusal on paper on 11 July 2003, and sought an extension of time.

He argued that section 25 of the Matrimonial Causes Act 1973 was incompatible with Articles 3, 6 and 8 of the European Convention on Human Rights. He also challenged the treatment of responsibilities towards children, the division of capital, an education fund and the costs order. The central issue was whether those grounds could overcome the second-tier appeal barrier under section 55 of the Access to Justice Act 1999.

Lord Justice Thorpe dismissed the renewed application for permission to appeal. The previous appeal had already been heard within the court of trial and dismissed by the President. Section 55 of the Access to Justice Act 1999 was intended to prevent unnecessary duplication of the appellate function and placed a substantial hurdle in the path of a second-tier appeal.

1. Convention challenge. The Matrimonial Causes Act 1973 provides a scheme for the equitable redistribution of capital and income following divorce. The existence of different financial-distribution systems in other European states did not make the domestic scheme incompatible with Articles 3, 6 or 8 of the European Convention on Human Rights. Member States retain a margin of appreciation in determining rights and responsibilities following dissolution of marriage. The challenge was therefore not arguable at appellate level.
2. Children. The court endorsed the President's treatment of the child born outside the marriage. That child fell for consideration only under section 25(2)(b) of the Matrimonial Causes Act 1973. The applicant's legal and moral responsibilities towards her could not be placed on an independent footing.
3. Other grounds. A complaint that capital surplus over needs had been divided on an unreasonable or unfair basis was insufficient to overcome the section 55 barrier. The court expressed the hope that disputes concerning the education fund would be resolved civilly between the parents.
4. Costs. The court expressed sympathy with the challenge to the application of the Calderbank principles and Rules 2.68 and 9 of the Family Proceedings Rules. Recent reconsideration of ancillary-relief costs, and possible future rule amendments, were treated as a transitional development which did not justify a second appeal.

Order: Application dismissed.

• Court of Appeal (Civil Division): On 18 September 2003, the renewed application for permission to appeal was dismissed. An extension of time was also sought.
• Family Division, President: The appeal from the orders of District Judge Million was dismissed by judgment dated 7 May 2003.
• Family Division, District Judge Million: Ancillary-relief orders were made after trial.