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Children

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  • The mother's appeal against a finding, made at a fact-finding hearing in the course of Children Act proceedings, that she had assaulted the father just before they separated. She appealed on the grounds that the judge had been in error regarding the photographs the father had taken of his injuries. Judd J DBE found that the date stamps showed that the photographs had been taken on a date inconsistent with the father's account of events, which would have undermined his reliability and credibility with regard to the entire incident. The finding of the Recorder was thus set aside. However, orders had subsequently been made in the Children Act proceedings, and Judd J DBE did not think it desirable or proportionate for the matter to be remitted for rehearing, so it would rest as it was. Judgment, 28/11/2020, free
  • The seven-year-old boy had dual Dutch and French nationality, and was agreed to be habitually resident in England and Wales with his mother. The French father, living in a non-Hague Convention country, sought a detailed order regulating his time with his son, and giving him permission to take the boy out of England and Wales on trips, including to his present country of residence. The mother had not engaged with proceedings or the father's solicitors, citing illness. HHJ Corbett, sitting as a s 9(1) deputy judge of the High Court, found that the mother had ignored the court proceedings, hoping that they would go away, but he had heard from her in detail and at length at the hearing. He was satisfied that each parent had had a fair trial in accordance with Article 6, and that the orders he would make were necessary and proportionate interferences with their Article 8 rights. He decided upon the dates which the son would spend with the father. As to international travel, there was in his judgment no risk of abduction, but the father would be directed to lodge a bond with his solicitors, to be paid to the mother if necessary to fund her legal costs of securing a return. The mother was ordered to respond to reasonable requests from the father regarding the son within 48 hours, and to give him 14 days' notice of any overseas travel plans. Judgment, 28/11/2020, free
  • The mother was a Bulgarian national with indefinite leave to remain, and was currently in Bulgaria with the two-year-old daughter. She was prevented from bringing the daughter back to England by an order of the Bulgarian court. The father had dual Bulgarian and British nationality and was in London. The central issue before the court, in what was described as "somewhat chaotic litigation", was whether a passport order should be discharged, but the court also considered the mother's application for committal of the father, and the issue of whether the English court or the Bulgarian court had jurisdiction regarding the daughter. Cobb J directed that the father's British passport should be returned to him forthwith. The father was directed to execute all necessary documents and travel consents to ensure that the mother was forthwith able to return the daughter to the jurisdiction of England and Wales. The committal order was dismissed; in Cobb J's view it was destined to fail. The case would be listed for further directions on the issue of habitual residence and jurisdiction once the International Family Justice Office had indicated whether it was able to establish the status of the proceedings in the Bulgarian courts. Judgment, 11/11/2020, free
  • The three-year-old daughter was a British citizen who had lived with the maternal grandmother in India since 2018, after the mother returned to England without her. The father had applied for summary return under the inherent jurisdiction of the High Court. The mother had applied for a specific issue order for "permission to change jurisdiction of the child", which Mostyn J took to be an application for a declaration that the child was habitually resident in India. A preliminary issue arose regarding whether the court had jurisdiction in the case. Mostyn J found as a fact that the daughter was now habitually resident in India and thus there was no jurisdiction in this case under Brussels II article 8. He also found as a fact that at no time up to 26 August 2020 had the mother unequivocally accepted that the English court had jurisdiction to deal with parental responsibility issues concerning her daughter. In his judgment, it would be wholly unprincipled, and a wrong exercise of the court's powers, for him to make orders on the father's application pursuant to the High Court's inherent powers in circumstances where the father had not established jurisdiction under either Brussels II or sections 1–3 of the Family Law Act 1986. His judgment was that the jurisdiction of the court depended on the territorial reach of Brussels II article 10. A question was referred to the Court of Justice for an urgent preliminary ruling: "Does Article 10 of Brussels 2 retain jurisdiction, without limit of time, in a member state if a child habitually resident in that member state was wrongfully removed to (or retained in) a non-member state where she, following such removal (or retention), in due course became habitually resident?" Pending receipt of the answer to the question the proceedings would be stayed. Judgment, 09/11/2020, free
  • An appeal out of time by the mother against a decision that the father could arrange for the children to visit and stay with the paternal grandparents in the Ukraine. The children were very reluctant to see their father, and it had emerged that the father might be living with the paternal grandparents. She asked for the order to be varied for the holiday to take place within the jurisdiction of England and Wales. Williams J allowed the appeal and remitted the case to a circuit judge at the Central Family Court for the issues to be determined. The decision had been reached in a manner that rendered it unjust by reason of serious procedural irregularity. Given the absence of notice and the lack of evidence neither the parties nor the court were in a position fairly to determine the issue. There was almost no consideration of the effect on the children or the risk of emotional harm or any reference to their wishes and feelings. Given the effect on the children of not being returned was a primary issue in such applications, the absence of any consideration of the issue rendered the decision wrong. Judgment, 09/11/2020, free

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