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Children

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  • The father appealed concerning three aspects of a case management order made pursuant to Children Act 1989 proceedings. He wished to enforce/vary a child arrangements order, and contended that the judge had erred in refusing to order a fact-finding hearing to investigate his allegations of parental alienation, limiting the scope of the local authority's section 7 report, and refusing to appoint a Children's Guardian under FPR 16.4. The mother's position was that the father's application was part of a long-running campaign of meritless court applications aimed at undermining the current arrangements. Williams J allowed the appeal but only to a limited extent in respect of the remit of the section 7 report. The application would be remitted to the Central Family Court with a direction that an addendum section 7 report should be provided by Islington Children's Services regarding the son's expressed wishes in the light of the contact notes. In respect of all other grounds the appeal was refused. Williams J noted that the case illustrated the problems caused by the failure of parties and their advocates to focus on the real issues which the court had to grapple with at a time-limited FHDRA. Position statements which far exceeded the permitted length and did not clearly and succinctly identify the main issues to be determined were unhelpful. Judgment, 02/05/2021, free
  • The American father, living in the USA, had applied for an order for his four-year-old son's immediate return there under the 1980 Hague Convention. The son had dual nationality and lived with his mother, a British national, in England. The son had been born in England. A marital settlement agreement had been agreed to the effect that the mother and child would relocate to the UK, with the child spending his school breaks with his father in the US, a minimum of three visits. The pandemic and quarantine restrictions had prevented this from happening as planned, and the father had filed a petition with the Circuit Court of his state for contempt and to modify custody. Mostyn J noted that "it is elementary that the 1980 Hague Convention can only be invoked where the child's habitual residence has not changed to the new state prior to the alleged act of removal or retention". The question of habitual residence was one of pure fact. In this case, there was no possible basis for saying that the removal was not lawful, and Mostyn J was completely satisfied that the mother had not harboured a dishonest intention to later deprive the father of his spending time rights. There had been no wrongful removal, nor any wrongful retention, and the Convention was not engaged because the son had plainly acquired habitual residence in England by the time in question. The father's application was dismissed. Judgment, 02/05/2021, free
  • The Swiss father applied under Article 8 of the 1996 Hague Convention for jurisdiction to be transferred to Switzerland, where the two-year-old daughter currently lived with him. The application was opposed by the British mother and the guardian. It was agreed that the daughter had been abducted from England in June 2020, when the paternal grandparents had paid for a private jet to take the father and daughter to Switzerland. The mother had not seen the daughter in person since August 2020. Arbuthnot J found that the court could not transfer these proceedings under Brussels IIa, and Article 8 of the Hague Convention did not apply in a case of wrongful removal unless the conditions in Article 7(1)(a) or (b) had been met. In her judgment, the courts here were better placed to determine the daughter's best interests. Delay was also a significant factor: this was a very young child, and her living arrangements should be determined much sooner than Swiss proceedings would allow. If there was a discretion to transfer under Article 8, Arbuthnot J would not have exercised it. There was no alternative power to transfer under the Family Law Act, and if there were, she would have exercised her discretion to not transfer the proceedings. The question of contact would be decided separately. Judgment, 29/04/2021, free
  • The children, aged 8, 7 and 5, were all born in England and had been living with the father's brother in Nigeria since being abducted to that country by the father in 2019. The mother applied for an anti-suit injunction against the father, requiring him to discontinue Nigerian proceedings in respect of their children in circumstances where Lieven J had determined that: the courts of this country had jurisdiction over the children by reason of their habitual residence; England and Wales, rather than Nigeria, was the natural forum; and the English court was substantively seised of ongoing proceedings concerning wardship and the welfare of the children. The father and uncle had ignored and flouted numerous orders for contact, and the father had been arrested upon his return to England. Peel J considered whether the four required criteria for an anti-suit injunction were fulfilled: jurisdiction, a sufficient interest, an appropriate ground, and discretion. He found that they were, and had no hesitation in exercising his discretion in favour of making the order sought. The father was ordered to take the steps required of him in the Nigerian courts. Judgment, 28/04/2021, free
  • The father was Japanese, and the mother was Polish Canadian, currently living in England. The father applied under Article 21 of the 1980 Hague Convention for a contact order in respect of his 11-year-old son. There had been weekly telephone calls but no direct contact since 2018. The father was in substantial arrears of a maintenance pending suit order, and might face enforcement proceedings if returning to England. He proposed that contact should take place immediately in Japan. The mother's position was that it should take place initially in England before possibly, subject to the child's wishes, progressing to Japan. The Family Court Adviser raised the option of contact in France. In Peel J's view, it would be premature to make an order for contact in Japan. It would be against the son's wishes, and it was too soon to embark on such a major step. Although Japan was a Hague Convention signatory, he had no evidence as to the speed with which a return order would be made and implemented there, and the consequences for the son of being separated from his primary carer for a substantial period would be highly damaging. Peel J ordered that contact should take place in England, at first for one week in each of the summer and Christmas 2021 school holidays. The father would be ordered to lodge his passport with an appropriate firm at the beginning of each contact period. A prohibited steps order would be made preventing the father from removing the son from the mother's care (save for the purposes of contact) or removing him from this jurisdiction without her written consent. However, the making of this order would be conditional upon the mother not pursuing a judgment summons, or any other step leading to imprisonment of the father arising out of breach of the financial remedy order. If she was unwilling to give that assurance, the order would not be made in those terms. The quantum and duration of contact, and conditions, would be in the same terms, but the place of contact would be France. Judgment, 28/04/2021, free

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