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- Dissatisfied with the outcome of proceedings, the father had posted on social media and displayed on his vehicle derogatory comments about the mother, the Children's Guardian, the social worker and the trial judge. The Children's Guardian applied for injunctive relief. Having balanced the competing rights, MacDonald J was satisfied that it was appropriate to grant an injunction. The Article 8 rights of the child and the Children's Guardian justified the interference in the father's Article 10 rights. Though this was an area where the courts had to tread very carefully, the father named the Children's Guardian in the material published not with the intention of adding to any legitimate discourse, but rather to harass and vilify her. The European Court of Human Rights had made clear that online publication of unevidenced personal attacks in the context of a legitimate public debate might not be protected by Article 10(2). Individuals with a public status, State bodies and persons acting in an official capacity were subject to wider limits of acceptable criticism than private individuals. There did, however, remain limits. Judgment, 04/08/2021, free
- This was an appeal, in the course of child arrangements proceedings, against a case management decision to exclude evidence from a fact-finding hearing where there were allegations of domestic abuse. The father's representative had raised the point that the mother's statement included allegations going beyond the five permitted in the Scott Schedule, as did other statements. The recorder noted that to permit only evidence which related to an allegation in the Scott Schedule was "a little on the narrow side", as an allegation might need to be put into context, but that it was also important to ensure that the hearing did not become unnecessarily lengthy. He had then concluded that significant sections of the mother's statement should be excluded, including her claim that that the father's violent and abusive behaviour towards the children had worsened. The mother appealed on four grounds: the recorder had been wrong to exclude the matters in the mother's sworn statement on the basis that they were irrelevant and inadmissible; wrong to exclude the professional evidence which was relevant to the child's allegations and the impact of the alleged abuse; wrong to exclude similar fact evidence, e.g. regarding the father's behaviour at work; and the recorder's conduct of the hearing had resulted in procedural fairness (a ground which was not pressed at this hearing). Judd J expressed sympathy for the recorder, who had not been responsible for any of the case management orders requiring the parties to limit their allegations to five. Nonetheless, his decision could not stand. The allegations beyond those in the Scott Schedule were neither inadmissible nor irrelevant; they were highly significant. The mother's appeal was allowed. The parents were directed to file narrative statements to be considered at the pre-trial review, alongside the mother's application to adduce evidence from doctors, her mother and the nanny. Judgment, 13/07/2021, free
- The parties had married in 1980, and divorce proceedings had concluded in 1991. The financial remedy proceedings had been enormously and bitterly contentious. The former wife now sought a wide range of orders against the former husband, including applications for: a freezing injunction under s 37 of the Senior Courts Act 1981; a non-molestation order under the Family Law Act 1996; an order for payment of outstanding arrears; an order for upward variation of spousal maintenance; an order for costs; and orders for various lump sums. In Cobb J's view, the presentation of the wife's case at the hearing had been somewhat chaotic, and her written evidence had contained unevidenced allegations and statements which strongly indicated a high level of paranoia and delusional thinking, including what were in his view extravagant claims of serious criminal conduct and acts of harassment. The application for a freezing order was doomed to failure given that the wife's purported claim for payment of arrears of periodical payments was itself hopeless. None of the issues canvassed in her evidence justified or called for a non-molestation order. Her applications were hopeless, unsupported by evidence, and without proper jurisdictional basis. Cobb J refused them all except for an application for upward variation of maintenance, which he would transfer to be heard at the appropriately located Family Court near to her home. Judgment, 09/07/2021, free
- The mother appealed against an order to return her one-year-old child to his father in Norway, made pursuant to the Hague Convention 1980 after the judge decided that she had failed to establish an Article 13(b) defence. She had alleged domestic violence, such as the father hitting her with the blunt side of a knife while she held the baby, strangling her, and slapping her. Considering a video where the father said "I will kill you, I will kill you" to the child, the judge had found that those words "do not appear spoken in anger or with intent", and he could not find that the video "demonstrated to the required standard that the father was intending to make a serious threat of harm". In Coulson LJ's view, there were four critical questions. Did the judge make appropriate assumptions based on the mother's evidence? Was there a clear evaluation of the risk to the child? Did the judge have regard to and consider all the evidence? And what was his evaluation of the sufficiency of the protective measures? Nowhere in the judgment had the judge said that he was prepared to assume that any of the mother's allegations were true, nor had there been an analysis of whether, if what the mother said was true, the nature, detail and substance of her evidence established a grave risk to the child. The judge had erred in law in carrying out the evaluation and arriving at the answer in the way that he did. He had failed to adopt the approach set out in Re E (Children) [2011] UKSC 27; failed to answer the question that he had posed himself ("would the allegations which the mother makes, if true, be sufficient to create a grave risk of such harm?"); arguably failed to have regard to all of the evidence; and had not considered the issue of protective measures in the factual circumstances that were likely to apply, namely the child being returned to Norway without his mother. Moylan LJ and Nugee LJ agreed. The matter would be remitted for an urgent re-hearing, if possible before a judge of the Family Division. Judgment, 08/07/2021, free
- The mother appealed from an order, following the father's application under the 1980 Hague Convention, for the parties' children, aged 4 and 2, to be returned to the USA. The judge had decided that the mother had not established either of the grounds relied on by her in opposition to the application: acquiescence and Article 13(b). The situation was complicated by the mother having said that she would not return to the USA with the children. The mother appealed on three grounds: the judge's approach as to Article 13(b); the judge's approach to the issue of acquiescence; and whether her other, 14-year-old child's voice was adequately reflected in the proceedings. In Moylan LJ's view, the latter added nothing of substance to the appeal, and the judge had been entitled to conclude that the father's conduct did not evidence an intention to acquiesce. However, the judge had not been entitled to reject the mother's allegations regarding the father, and had not analysed whether the allegations, if true, would potentially create a grave risk within the scope of Article 13(b) nor how any such risk might be addressed. Moylan LJ's view was that returning the children to the USA in the absence of their mother would create a grave risk of their being exposed to physical or psychological harm or of them otherwise being placed in an intolerable situation. Baker and Arnold LJJ agreed. The appeal was allowed and the application for a return order was dismissed. Judgment, 01/07/2021, free
Latest know-how
- Case note, 01/07/2021, free
- The court was concerned with an appeal against the dismissal of an application made without notice in December 2020. Case note, 03/06/2021, free
- 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
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