The online information & webinar resource for private family lawyers.
New to watch
Crypto-assets in Divorce Proceedings
What is the impact of Covid-19 to investors & how are family lawyers and their clients affected?
How has the Covid crisis affected pensions on divorce?
Coronavirus & its impact on Family Law (Part 2: Children)
New to read
-
ZM v NM [2020] EWHC 2413 (Fam)
An application by the father for the summary return of his two twin children to Croatia, pursuant to the provisions of the 1980 Hague Convention and Brussels IIa. The children were in England with their mother, living with her parents. The father had previously retained the children in Croatia without her consent, leading to the end of the couple's relationship, but the children had been found by the Croatian court to be habitually resident there. She accepted that the children had then been brought to England without the father's consent, but with reference to Article 13(b) claimed that the children were likely to suffer distress if required to return to Croatia without her. In the view of Mr David Lock QC, sitting as a deputy High Court judge, the evidence did not suggest that there was a grave risk of psychological distress sufficiently serious for Article 13(b) to apply. He made an order requiring the return of the children forthwith to Croatia. Judgment, 25/09/2020, free -
Rothschild v De Souza [2020] EWCA Civ 1215
The husband appealed from a financial remedy order made in February 2020, on the ground that the judge had failed to assess or take into account the husband's needs and only considered the wife's needs. Part of the order had been for the husband to sell a property in Miami, with the wife to receive the lump sum. The day before the hearing the court – and the husband's own solicitors – learned that the husband's beneficial interest in that property had been transferred to his mother. In Moylan LJ's view, the judge had been entitled to take the husband's litigation conduct into account. The disparity in outcome could be justified in this case. The judge had found that the burden of maintaining the children was likely to be met by the wife. Moylan LJ did not accept the submission that the judge's consideration of the husband's needs had been inadequate. Patten LJ and Newey LJ agreed. The appeal was dismissed. Judgment, 25/09/2020, free -
MH v KF [2020] EWFC B43
The mother had applied without notice for a specific issue order for the father to return their two children to her care, asserting that he had retained them at the conclusion of an agreed period of contact. After the matter was listed on notice to the father, he told the court that he had not returned the children due to concerns about their welfare. No substantive order was made at that hearing. The mother now applied for a costs order. In the view of HHJ Middleton-Roy, this was not a case where it would be appropriate to depart from the general principle that each party should bear their own costs. There would be no order as to costs. He noted with approval that the parties had now agreed to attend therapeutic mediation with a view to improving the communication between them and to resolve issues in respect of the children. Judgment, 25/09/2020, free -
F v G [2020] EWHC 2396 (Fam)
The father appealed against an order that he should only have indirect contact with his children (aged 8 and 7), that they should live with their mother, and that he should excluded from making decisions with respect to their education and health. Judd J DBE concluded that this appeal should be allowed. The recommendation of the Cafcass officer, as accepted by the judge, had been based upon the officer's view that the father had engaged in coercively controlling and abusive behaviour, but these findings had not formally been sought and there had not been a fact-finding hearing. The Cafcass officer had not observed the children with their father. If the recorder had weighed in the balance the harm that could be caused to the children by the immediate loss of their relationship with the father, it was not apparent from the judgment. The case was remitted for rehearing, and would have to be listed for another FHDRA, where questions such as separate representation for the children, the ambit of any fact-finding hearing, and whether there should be a psychological assessment of the father would be considered. Judgment, 25/09/2020, free -
Re C (A Child: Parental Order & Child Arrangements Order) [2020] EWHC 2141 (Fam)
A male child had resulted from a surrogacy arrangement. The wife had then arranged a further surrogacy without the husband's knowledge, and they had subsequently separated. The husband and wife jointly sought a parental order for the first child, and the father sought a child arrangements order with regard to him. The guardian supported the father's application. The wife sought a non-molestation order against the husband, as well as findings of fact that she had been the subject of financial, coercive and controlling abuse during their relationship. Keehan J did not place any great weight on the views and opinions of the social worker involved, who had omitted a number of a significant factors from her assessments in the case, but he gave considerable weight to the recommendations of the guardian. He found that it was in the son's welfare best interests to live with his father, and made a child arrangements order to that effect. He made none of the findings of fact sought by the mother against the father. Judgment, 25/09/2020, free -
JKL (Children: Transnational Abandonment: Interim Order) [2020] EWHC 2509 (Fam)
In wardship proceedings, the mother alleged that she and the children (aged 8, 4 and 3) had been victims of transnational abandonment. This was denied by the father, whose case was that the parties had made a consensual decision to relocate as family to Pakistan. He contended that the courts of England and Wales did not have jurisdiction in respect of the children; alternatively, that they should not exercise any jurisdiction because welfare decisions could more conveniently be made in Pakistan. Circumstances meant that the case had to be adjourned, but Mr Richard Harrison QC, sitting as a deputy High Court judge, considered the situation as it stood to be one in which the children were likely to be suffering from emotional harm. It was not tolerable for them to continue to be separated from their parents. It was clear to him that the essence of the mother's case was likely to be correct. The removal of the children to Pakistan had been procured on the basis of a deception, and was thus in breach of the mother's rights of custody, and a wrongful removal for the purposes of Article 10 of Brussels IIa. Having been the primary carer throughout the children's lives, the mother was the person best placed to meet the children's emotional needs. He ordered their immediate return to this jurisdiction. Judgment, 25/09/2020, free -
A (A Child) [2020] EWCA Civ 1230
The father sought contact with the child. The mother opposed all contact. In a fact-finding hearing the judge had found that the father had killed the maternal grandfather and attempted to kill the mother and maternal grandmother, by means of poisoning their coffee with thallium. The father now appealed on the basis that the judge's findings had been unsafe. King LJ's view was that the judge's order could not stand. Findings had been made which were not based on a rigorous analysis of the evidence. Nicola Davies LJ and Philips LJ agreed. The appeal was allowed and the matter remitted for retrial before a High Court judge, in order for the court to determine if the poison had been administered deliberately, and, if so, identify the perpetrator if possible. Judgment, 25/09/2020, free -
G (A Child: Child Abduction) [2020] EWCA Civ 1185
The mother had brought the daughter to England without the father's knowledge. She alleged that he had racially and sexually abused her during their marriage; they had separated in 2014 and she had subsequently come out to friends as a lesbian. On arrival in the UK, she had applied for asylum on the basis of the fear of persecution from her family as a result of her sexual orientation, from which the South African authorities had been unwilling or unable to protect her. The father's application under the 1980 Hague Convention for his daughter to be returned to South Africa had been stayed, pending the determination of the mother's asylum claim. This was an appeal against that stay, on four grounds, including that the judge had erred in considering any form of refugee status to be an absolute bar to a return under the 1980 Hague Convention. The Court of Appeal (Hickinbottom, Moylan and Peter Jackson LJJ) noted that the case raised issues regarding the apparent tension between the objective of the Hague Convention 1980, to return a wrongfully removed or retained child expeditiously to their home jurisdiction, and the principle of the 1951 Geneva Convention, that refugees should not be returned to a country where they might be persecuted, as well as issues as to the rights of children in such situations. In their view, children with refugee status could not be returned under the 1980 Hague Convention to the country from which they had been given refuge. However, there was no bar where, as transpired to be the situation in this case, the child had been named as a dependant in an application for asylum by a parent, but had made no independent asylum claim. Even where a child had been granted or had applied for refugee status, the High Court was not prevented from determining an application or making a return order, though implementation might need to be stayed. The appeal was allowed. Judgment, 25/09/2020, free
