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- A father's application under the Hague Convention and Brussels II Revised for the summary return of his four-year-old daughter to Spain. The mother argued that the father had acquiesced to the removal and that the child would be at grave risk upon returning, due to the alleged domestic violence which had precipated the move to England. The parents were both British citizens who had moved to Spain as children. To Lieven J it seemed obvious from the father's texts that he fully understood that it was the mother's intention to stay in England with the child, and at no stage did he suggest he was seeking for the daughter to live permanently in Spain. This was a case such as those described in Re H (Abduction: Acquiescence) [1997] 1 FLR 872, where "the wronged parent, knowing of his rights, has so conducted himself vis-à-vis the other parent and the children that he cannot be heard to go back on what he has done and seek to persuade the judge that, all along, he has secretly intended to claim the summary return of the children". As to grave risk, Lieven J held that it would be totally irresponsible to return a young child in circumstances where there were very serious and credible allegations of domestic violence against the father, including that he assaulted the mother when she was pregnant. To do so would put the daughter in an intolerable situation and present a grave risk to her of significant psychological harm. The father's application was rejected. Judgment, 09/03/2020, free
- The parents had split up and the boy was living with his mother. The father had applied for a child arrangements order. This was a fact-finding hearing with regard to allegations which, according to HHJ Tolson QC, would not "in the ordinary course, have had very much to say for the future" in terms of the boy's welfare. These included allegations of coercive control and that the father had raped the mother. The judge said that "the enquiry into this allegation of rape is fraught with difficulty" and that he did "not see why the mother could not, should not, have made life difficult for the father" during the events, while also noting that the mother would "often tell the father to stop". The judge's findings were that the sex was consensual, and more generally that the father was not coercively controlling. This decision was successfully appealed in JH v MF [2020] EWHC 86 (Fam), where Russell J DBE stated that the judge had employed "obsolescent concepts concerning the issue of consent". Judgment, 24/02/2020, free
- An appeal against findings of fact at a hearing concerning complaints of domestic abuse and sexual assault. Russell J DBE found that there had been serious procedural irregularities at the hearing, such as ordering that the appellant gave evidence from counsel's row rather than behind a witness box. She also found that the judge's approach to fact-finding was so flawed as to lead to the conclusion that it was unsafe and wrong. He had failed to take into account relevant material as to the parties' relationship, including reports of aggressive, criminal and violent behaviour on the respondent's part. She held that the resulting judgment was flawed for a multiplicity of reasons, including that the judge failed to consider that the respondent's anxious presentation might be the result of previous abuse by the respondent. Other comments by the judge reflected a failure to consider or appreciate the reality of domestic abuse, control and coercion. The judge had concluded that sexually threatening texts were consistent with "sexting", though this had not been the respondent's case and was not put to the appellant. The judge's approach to the issue of consent, relying on his view that the appellant had not physically fought off the respondent, was "manifestly at odds with current jurisprudence, concomitant sexual behaviour, and what is currently acceptable socio-sexual conduct". It could not be lawful or jurisprudentially apposite for the Family Court to take an approach so much at odds from that which applies in the criminal jurisdiction. The case was remitted for retrial, and a formal request would be made for those judges who might hear cases involving allegations of serious sexual assault in family proceedings to be given training based on that provided to criminal judges. Judgment, 23/01/2020, free
- This hearing followed on from that in Re C1 and C2 (Child Arrangements) [2019] EWHC B15 (Fam), involving the same father but a different mother. In this hearing, the mother of these two children, aged six and eight, applied to extend an existing s.91(14) order for a period of five years. Keehan J found that the defects in the father's personality and his character were such that he posed a risk of serious emotional and psychological harm to the mother of these two children, as it had been found to do with regards to the mother of the two children in the earlier hearing. A period of two years would be an appropriate one to give the father the chance to make the changes that he needed to make, for his own benefit, and for the benefit of his children. However, Keehan J regretted that, in the absence of further incidents since 2016, there was no legal basis for making or extending a non-molestation order and that application was dismissed. The mother's application for costs was refused. Judgment, 03/01/2020, free
- The father applied for child arrangements orders in respect of these two children. Pursuant to s.91(14) of the Children Act 1989, the mother applied to prevent the father from making any further Children Act applications without leave of the court. The father was a litigant in person, but also a qualified member of the Bar, and yet his behaviour during the hearing was described by Keehan J as appalling, aggressive, incoherent and intimidating, for example with regard to the expert witness psychologist during cross-examination. This supported the conclusions in her report as to his lack of empathy and narcissistic personality disorder. An order for direct contact would have a devastating impact upon the mother, which would have a serious adverse impact indirectly on the two children. Keehan J was entirely satisfied that it was not in the best interests of either child to have direct contact with the father, and a s.91(14) order was imposed upon him for a period of two years. He was urged to seek professional help. Judgment, 03/01/2020, free
Latest know-how
- Unusual application in which father sought permission to vary the terms of a non-molestation order thereby allowing him to communicate with his daughter. Case note, 04/11/2019, members only
- Mother’s unsuccessful application for permission to appeal findings of fact. Case note, 04/11/2019, members only
- Case note regarding a fact-finding hearing in which the mother’s allegations against the father were all made out. Case note, 30/07/2019, members only
- In a tweet: Successful application by a father (“F”) for return of the child to a state other than the one in which the family had been habitually resident when the wrongful removal occurred. Case note, 08/07/2019, free
- In a tweet: Proper approach when accused is to cross-examine their accuser Case note, 26/10/2018, members only
Latest training
- Roshi Amiraftabi of 29 Bedford Row, reviews the key private children law cases, themes and practice developments from the past 12 months. Webcast, 31/05/2018, members only
- In this webcast, which was first presented on 16 July 2015, Anton Eriera from 29 Bedford Row talks about domestic violence cases and the most recent developments in this area of law. Webcast, 31/07/2015, members only
Latest sources
- Form (external), 05/04/2017, free
- This guidance, issued by Sir James Munby, President of the Family Division on 18 January 2017, supersedes previous guidance issued on 13 October 2014. It states that making without notice injunctions for an unlimited time is wrong and must stop, then sets out the correct approach. Practice direction, 18/01/2017, free
- Form (external), 01/09/2009, free