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- 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
- 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
- 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
- The proceedings concerned a father's application for contact with children aged two and five. The mother opposed contact on the basis that the father had subjected her to domestic and sexual abuse. She now appealed from a case management decision to exclude evidence of coercive and controlling behaviour by the father towards a subsequent partner. Peter Jackson LJ, after considering the approach to be taken to similar fact evidence in civil and family proceedings, and the standard of proof involved, stated that the judge's decision could not stand. The necessary analysis concerning whether the disputed evidence should be admitted had not been carried out, and the judge had been mistaken (as had the district judge) about the stance that had been taken by the court previously. Hickinbottom LJ and David Richards LJ agreed. The appeal was allowed, the evidence reinstated, and the judge's order set aside. The case was reallocated to High Court level with case management and fact-finding hearings to follow. Judgment, 25/08/2020, free
- The mother appealed against the judge's refusal to set aside a return order under the 1980 Hague Convention. The mother lived in England and had dual British/Bosnian nationality. The father was a Bosnian national and had always lived in Bosnia. She had returned with the child to England in circumstances which had involved a restraining order being made against the father by the Municipal Court in Sarajevo. The judge had found that the son was habitually resident in Bosnia immediately before his removal, that there had been no consent or acquiescence to his removal, and that the Article 13(b) threshold of grave risk of harm or intolerability had not been crossed. This appeal regarded the latter finding. Moylan LJ found that the Article 13(b) risk was clearly established. The judge had been wrong to discount the effect of the father's breaches of his previous undertakings, and the judge's approach to the mother's mental health had been flawed in a number of respects. It was clear that there would be a grave risk of the son being placed in an intolerable situation if they were to return to Bosnia and be separated. Peter Jackson LJ and Carr LJ agreed. The appeal was allowed and the father's Hague Convention application was dismissed. Judgment, 11/08/2020, 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