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- This was an appeal against a judge's refusal to discharge a non-molestation order from 2016 granted under section 42 of the Family Law Act 1996, and her substitution of an order which would have continued indefinitely, having stated, "I cannot see that it is going to inconvenience the husband in any way for it to continue. It serves as protection to the wife." Cobb J took the view that it was manifestly wrong for the judge to dispose of the application in this way. She had "failed to embark on anything approaching an adequate analysis of whether this case did justify the making of an open-ended order", and, if she had, the proper outcome would have been the discharge of the order. However, given that the wife spoke of ongoing intimidation in her oral submissions at the appeal, Cobb J directed the wife to file evidence of such, and the husband to file evidence in reply. To justify the continuation of the order, the wife would need to satisfy the court that judicial intervention was required to control the behaviour about which she complained. Cobb J therefore remitted the husband's application for discharge of the non-molestation order for re-hearing before a circuit judge. In the meantime, he substituted the judge's order with one which provided for the continuation of the non-molestation order until further order. Judgment, 12/07/2020, free
- The father applied under the Child Abduction and Custody Act 1985 for a summary return order pursuant to the provisions of the 1980 Hague Convention, in respect of two children, aged seven and four. The children were born in Belgium and had always lived there until being taken by both parents to Spain for six weeks, and then to England by the mother, in the company of a new acquaintance with multiple convictions. The move to Spain, it was suggested, had been to prevent the Belgian social care authorities from undertaking safeguarding interventions. However, the Belgian authorities informed the court that they would not be taking any active steps towards the return of the children to Belgium, and that in their view the children should be with the mother. The local authority had completed a parenting assessment of the mother which concluded that she was unable to care safely for the children. The father had been accused of domestic abuse, and though in England at the time had failed to attend assessment sessions due to drug use. The children were now in foster care, and in regular contact with the mother. MacDonald J found that the exception under Article 13(b) of the 1980 Convention was made out. There was no evidence before the court to confirm who would take custody of the children upon arrival in Belgium, what arrangements would be made for their care, or how contact with their mother would be facilitated. Ordering their return to Belgium would place them in an intolerable situation for the purposes of Article 13(b). The father's application was dismissed. Judgment, 14/06/2020, free
- The father sought a child arrangements order while the mother opposed any direct contact. The mother alleged that she was the victim of the father's domestic violence and abuse. The case had engaged special measures, with a screen being used for the mother and the father being required to provide Willans J with his questions for her in advance, though Willans J expressed "grave reservations as to the resulting quality of evidence received". The allegations of rape and abduction were not found to be proven, while both mother and father were found to have sent inappropriate communications of a harassing nature to each other. Though the mother was found to have demonstrated implacable hostility, Willans J was not persuaded that the effects of this amounted to parental alienation. Consideration would now have to be given to whether contact could be re-established. The case needed to progress, and a Children's Guardian would be appointed prior to fixing a directions appointment. Judgment, 25/05/2020, free
- Private law family proceedings between the mother and father were ongoing, regarding the welfare of their eight-year-old son. This hearing concerned the disclosure and inspection of documentation from the mother's successful asylum claim, in which she had alleged domestic and sexual abuse on the part of the father. MacDonald J ordered that several of those documents should be disclosed, with some redaction, as being relevant to its fact-finding process. The father had the right to a fair trial under Article 6 of the European Convention of Human Rights, and his Article 8 rights were also engaged. The same was true of the child's Article 6 and 8 rights. It was plainly in the child's best interests for decisions as to his welfare to be taken on a fully informed basis. This required that the court had before it all of the evidence relevant to determining that issue. However, MacDonald J stressed that this decision did not signal any change in the general approach to disclosure into family proceedings of asylum documentation. Rather, this was the application of settled legal principles to the very particular facts of this case. Judgment, 11/05/2020, free
- The father had applied for a child arrangements order that the children live with him, and a prohibited steps order preventing the mother from removing the children from the jurisdiction. It had previously been found as a fact that that the father had raped the mother, had physically assaulted her in front of the children, and had caused direct harm to one of the children. An expert witness concluded that there was no reasonable prospect of the father engaging successfully in therapy so that the risks he presented could be ameliorated. The guardian's view was that risks remained to the children, given the father's history of manipulative behaviours, and so even indirect contact was not recommended. The father claimed that this was a case of parental alienation, where the mother had sought to paint a false picture of him to the children and to the court. HHJ Vincent found there was no evidence of this. All of the mother's allegations had been found to be true. HHJ Vincent was not satisfied that the physical and emotional safety of the children and their mother could be secured before, during and after contact. They remained at risk of further domestic abuse by the father, even if contact were to be supervised. The father's applications were refused. Judgment, 28/04/2020, 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