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Father v Mother [2020] EWHC 1964 (Fam)
An application by the father for the summary return to Australia of two children aged 5 and 8. The children had lived in Australia up until April 2019, when the family moved to England. The British mother filed for divorce in January 2020. The father alleged that the move to England had been planned with the intent to divorce him here, that he had been misled into thinking that they would be in England for only two years, and that his consent to the move had been vitiated by that dishonesty. Part of his case was that the mother had overreacted to an incident where he had hit the children with a belt in her absence. Lieven J did not accept that the mother had deliberately tricked the father into coming to England, and she cautioned against "an unfortunate tendency to try to analyse parents' relationships as if they were contractual agreements". The mother's reaction to him hitting the children had been wholly reasonable. At the time of the divorce papers being filed, Lieven J decided, the children had been habitually resident in England. She declined to make a return order under the inherent jurisdiction. She did not have the material that would allow her to determine that it was in the children's best interests to return to Australia. If the father wished, he could make an application under the Children Act and then apply for a specific issues order for their relocation, allowing the matter to be properly considered on full evidence. Judgment, 04/08/2020, free -
Secretary of State for the Home Department & Anor v RH [2020] EWCA Civ 1001
The mother and the Secretary of State for the Home Department brought appeals against an order for disclosure, in private family proceedings, of redacted copies of certain documents in her asylum file, to the solicitors acting for the father and the son. In Baker LJ's view, it was clear that MacDonald J had correctly identified the applicable principles of law in his first judgment and in the second had applied them in a way which was fully within his discretion and could not be successfully challenged in the Court of Appeal. His conduct of the balancing exercise required had been "unimpeachable". Phillips LJ agreed. In Peter Jackson LJ's view, the answer to questions regarding disclosure in similar cases was "not to be found in legal generalities or contestable adjectives but in a close study of the individual circumstances". The judge had reached a decision after careful consideration. Though Peter Jackson LJ had some hesitancy about the outcome, it was not open to the Court of Appeal to say that the judge's decision had been wrong. The appeal was dismissed. Judgment, 04/08/2020, free -
Father v Mother [2020] EWHC 1930 (Fam)
The mother applied for costs, arguing that the father had acted unreasonably in only conceding the application for summary return at lunchtime on the first day of a three-day hearing. The father's representative pointed out that in a matter such as this, costs did not automatically follow the event and the court had a broad discretion. In Lieven J's view, if either party had been prepared to act more reasonably and take a more consensual approach, costs and court time could have been saved, but it would not be appropriate to depart from the general approach that in family proceedings involving children no order for costs is generally made. Judgment, 29/07/2020, free -
Lewis v Clarke & Anor [2020] EWHC 1975 (Ch)
The parties had lived together with their three children and were equal shareholders in a motor vehicle repair and servicing company. After they broke up, the male partner had transferred the business of the company to a new limited company, without the agreement of the female partner. He was subsequently ordered to purchase her shareholding because of unfair prejudice. The court was petitioned to take a summary approach as to valuation, as far as could be reasonably achieved. Difficulties included the lack of up-to-date financial information, the upcoming expiry of a lease and the effects of the coronavirus. ICC Judge Jones decided that a valuation of £45,500 would be a fair sum, being £26,000 for anticipated dividends and £19,500 for a multiplier. Although this was part of the process of splitting assets to establish a future for the parties and their children, the petitioner could only receive what the respondent was able to pay, and thus it was important for the parties to communicate, to try to resolve how the valuation could best be paid. Judgment, 29/07/2020, free -
Father v Mother [2020] EWHC 1929 (Fam)
This had been an application, made by the father and resisted by the mother, for the summary return of two girls aged eleven and fourteen to Dubai, but the father conceded that his application should not be granted. Instead, he asked Lieven J to make an order for direct contact with the children, including contact outside the jurisdiction. The issue then became the risk of him retaining the girls in Dubai. The view of the children, as expressed to a Cafcass officer, was that they were happy to travel to Europe with their father, but had concerns about travelling to Dubai with him. Lieven J made a finding that the children were now habitually resident in England. Her view was that it would be exceptionally harmful to their emotional state for them to be retained in Dubai. Safeguards were necessary to mitigate that risk, and to ensure that in such a situation they would be returned to England with relatively little difficulty. An agreement between the parents, setting out their acceptance that the children were habitually resident in England and should be returned there if necessary, should be lodged with the Dubai courts. Once that was done, Lieven J envisaged travel to Dubai as being possible. Judgment, 28/07/2020, free -
NT v LT (Return to Russia) [2020] EWHC 1903 (Fam)
The mother applied under the Child Abduction and Custody Act 1985 (incorporating the Hague Convention 1980), and in the alternative under the inherent jurisdiction, for the return of her eight-year-old son to Russia. She contended that the father had wrongfully removed or retained the child in 2019. The father opposed the applications, raising issues of whether, at the relevant time, the child had been habitually resident in Russia and the mother had had rights of custody, whether the child would be at risk following a return, and whether the child objected to a return. The father's own prior applications, including for prohibited steps orders, had been stayed pending determination of the mother's applications. Cobb J found that the son had developed a sufficient degree of integration in life in Russia, while living there for ten months or so, to acquire habitual residence. The removal had indeed been in breach of the mother’s rights of custody. He did not believe that the son would be likely to suffer the “severe degree of psychological harm which the 1980 Hague Convention has in mind” (per Lord Donaldson) and the father therefore failed in his case under Article 13(b). Cobb J did not regard the son's objection to returning as being powerfully expressed or adamant. He reached the conclusion that a return to Russia was in the son's interests, where fully-informed welfare-based decisions could be made in a court to which both parents had ready access. Judgment, 27/07/2020, free -
H v N (Inherent Jurisdiction Refusal of Return Order) [2020] EWHC 1863 (Fam)
The father applied under the inherent jurisdiction of the High Court for an order for the summary return of four children, aged 1, 9, 13 and 14, to the jurisdiction of Pakistan. The mother opposed the application. Both parents and all four children were Pakistani nationals, but the three oldest children had UK passports. The mother alleged domestic abuse, as did the three oldest children. The father alleged a scheme to marry the children off for immigration purposes. MacDonald J found that the father had at times been an arrogant witness, pre-occupied with the impact of the case on his reputation, and dishonest in his evidence. He found that the mother had also been "economical with the truth". The children had been habitually resident in Pakistan at the time of their removal, but a welfare case against their summary return was made out. Returning them, against their wishes, would not be in their best interests. The father's application was dismissed, and a stay on the mother's Children Act 1989 proceedings was lifted. Judgment, 24/07/2020, free -
Mannering v Cook [2020] EWHC 1998 (Ch)
The couple had been together, unmarried, for just over ten years and had two children. There had already been three trial judgments given in separate actions consequent on that breakup, leading to costs orders against the female partner totalling about £90,000, none of which had been paid or were likely to be paid. This new Chancery claim arose out of allegations that the male partner, in his capacity as director of a company in which both parties had held shares, had run substantial parts of it on a cash in hand basis. He applied to strike out or dismiss the claim, and for an extended civil restraint order (CRO) to prevent his former partner making further claims or applications against him without permission. HHJ Parfitt, sitting as a judge of the High Court, struck out the particulars of claim and the claim form on the ground that taken together they impeded the just disposal of the proceedings – they provided no basis for the case to be understood, defended or tried – and did not comply with the rules regarding statements of case. He also struck out the claim on the grounds that it sought to reopen matters decided in previous claims and otherwise failed to set out a cause of action with a reasonable chance of success. An extended CRO was justified, on balance, but it would not extend to family proceedings and it would exclude any application to have an existing limited CRO set aside. Judgment, 24/07/2020, free