Family Law Hub

Practice & Procedure

Latest updates

  • The father appealed concerning three aspects of a case management order made pursuant to Children Act 1989 proceedings. He wished to enforce/vary a child arrangements order, and contended that the judge had erred in refusing to order a fact-finding hearing to investigate his allegations of parental alienation, limiting the scope of the local authority's section 7 report, and refusing to appoint a Children's Guardian under FPR 16.4. The mother's position was that the father's application was part of a long-running campaign of meritless court applications aimed at undermining the current arrangements. Williams J allowed the appeal but only to a limited extent in respect of the remit of the section 7 report. The application would be remitted to the Central Family Court with a direction that an addendum section 7 report should be provided by Islington Children's Services regarding the son's expressed wishes in the light of the contact notes. In respect of all other grounds the appeal was refused. Williams J noted that the case illustrated the problems caused by the failure of parties and their advocates to focus on the real issues which the court had to grapple with at a time-limited FHDRA. Position statements which far exceeded the permitted length and did not clearly and succinctly identify the main issues to be determined were unhelpful. Judgment, 02/05/2021, free
  • The Court of Appeal (the President of the Family Division, King LJ and Holroyde LJ) was concerned with four appeals in ongoing Children Act 1989 proceedings involving allegations of domestic abuse by one parent against the other. The decisions on the appeals, the court explained, turned on long-established principles of fairness or the ordinary approach to judicial fact-finding, and none purported to establish new law, or to establish any legally binding precedent. However, the court noted, at least 40% of private law children cases now involved allegations of domestic abuse, about 22,000 cases each year, and so the court took the opportunity to give more general guidance about such matters, such as the proper approach to deciding whether a fact-finding hearing was necessary, and whether, where domestic abuse was alleged in proceedings affecting the welfare of children, the focus should in some cases be on a pattern of behaviour rather than specific incidents. It noted that there had been effective unanimity in submissions to the court that the value of Scott Schedules in domestic abuse cases had declined to the extent that they were now a potential barrier to fairness and good process, rather than an aid. Reducing the focus to a limited number of events created the risk of the court losing the vantage point needed to consider whether there had been an overall pattern of coercive and controlling behaviour. The appeals in Re B-B and Re T were allowed, and the matters remitted to different judges. The appeal in Re H-N was allowed and the matter was remitted to the Designated Family Judge at the Central Family Court for further case management. The appeal in Re H was dismissed. Judgment, 31/03/2021, free
  • The latest stage in a protracted piece of financial remedies litigation. The matter listed had been whether a stay should be granted to the wife to allow her not to transfer certain monies from a Swiss account pursuant to the order under appeal, but in the event Lieven J was able to consider both the stay and the outstanding points on appeal. The wife argued for the husband to provide an indemnity that covered her potential liability to a firm of solicitors. Lieven J found that the risk the wife perceived could not be considered fanciful. There had been a significant change of circumstances, and it had been inequitable not to vary the order. The clean break settlement would have left her unable to recover the money needed to cover the contingent liability to which she was potentially now exposed. Judgment, 06/03/2021, free
  • The father appealed against a decision to set aside a return order and to dismiss his application for summary return. The father was an Italian national, the mother a British national, and shortly after their son was born in England they moved to Italy. In 2019, when the child was 10, the mother brought him to England and they did not return. The judge had found that the evidence of the child's wishes and feelings amounted to "a fundamental change of circumstances" and "a fundamental change to the basis on which the previous order was made". In Hayden J's view, although the judge had clearly identified a significant and sustained degree of pressure placed on the child by his mother, he did not seem to have considered how this would have compromised the authenticity of the child's expressed views. The test as to whether there had been a 'fundamental change of circumstances' had to be set high. The mother's application was a clear example of an attempt to reargue a case which had already been comprehensively determined. Asplin and Moylan LJJ agreed. The appeal would be allowed and an order made for the child's return to Italy. The child would not be added as a party to proceedings; to do so would only serve to heighten the conflict that he had struggled to avoid. Judgment, 04/03/2021, free
  • The mother was English, and the father was Libyan, with a British passport. They had three children, aged 3, 5 and 6. The mother had left Libya in 2018 but the children had remained there. She now applied under the inherent jurisdiction for orders that the court should protect the children, invoking "the ancient parens patriae jurisdiction": the Crown's obligation to protect those who are unable to protect themselves. She had not raised this in previous unsuccessful proceedings, relying instead on habitual residence and/or Article 10. Had this been a case about money, Mostyn J said, the failure to advance the parens patriae case first time round would not have been justified and therefore the current case would have stopped for Henderson abuse. However, because this was a case about children, he decided that this should instead be considered as part of the overall discretionary exercise as to whether the jurisdiction should be exercised. He found that the circumstances in this case were not sufficiently compelling to require the court to exercise its protective jurisdiction. The evidence showed that an order for repatriation which sought the assistance of the Libyan authorities would be futile. It did not show there had been a major deterioration in the security situation in Libya since the relocation to Libya, to which the wife had consented, nor since the previous order had been made, such that would justify it being set aside. The mother's application was dismissed. Mostyn J urged the father to allow the mother to have meaningful contact with her children. Judgment, 20/01/2021, free

Latest know-how

Latest training

Latest sources

Copyright 

Copyright in the original legal material published on the Family Law Hub is vested in Mills & Reeve LLP (as per date of publication shown on screen) unless indicated otherwise.

Disclaimer

The Family Law Hub website relates to the legal position in England Wales and all of the material within it has been prepared with the aim of providing key information only and does not constitute legal advice in relation to any particular situation. While Mills & Reeve LLP aims to ensure that the information is correct at the date on which it is added to the website, the legal position can change frequently, and content will not always be updated following any relevant changes. You therefore acknowledge and agree that Mills & Reeve LLP and its members and employees accept no liability whatsoever in contract, tort or otherwise for any loss or damage caused by or arising directly or indirectly in connection with any use or reliance on the contents of our website except to the extent that such liability cannot be excluded by law.

Bookmark this item