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  • 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 mother, a Sudanese national with indefinite leave to remain in the UK, applied under the inherent jurisdiction of the High Court for the children to be made wards of court and for an order mandating the return of the children to the jurisdiction of England and Wales from the jurisdiction of Sudan. That application was resisted by the father, a British citizen born in Sudan. In 2017 the mother and children had travelled to Sudan, for reasons that were disputed between the parties, and the mother alleged that the children's passports had been taken from her and not returned. A 2021 passport order had required the father to deliver up the passports of the children to the Tipstaff, as well as his own. The issues for the court to determine at this final hearing were whether this was an appropriate case for the court to exercise its residual parens patriae jurisdiction; if so, whether the children should be made wards of court and a return order granted under the inherent jurisdiction; and whether the passport order should continue or be discharged. In MacDonald J's view, it was not appropriate for the court to exercise its residual parens patriae jurisdiction. The children were habitually resident in Sudan, which was the convenient forum for determination of welfare issues, and the evidence demonstrated no sufficiently compelling reason that the children required the protection of this court. The mother's application was dismissed, and the passport order was discharged. Judgment, 12/07/2021, 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 parties married in 2004, separated in 2015 and the decree absolute of divorce was granted in 2019. The three children lived with the mother and had only indirect contact with the father. DJ Graham Keating found that their housing needs were being met, albeit imperfectly, by living in the former matrimonial home (FMH). He considered whether the income disparities and needs justified spousal maintenance. Although the mother had not been transparent about her resources, and the parties' litigation history strongly suggested that a clean break and the avoidance of subsequent litigation was very desirable, the mother would be responsible for the care of the children, for housing, feeding, schooling and clothing them. The district judge decided to grant the mother a 48.9% share of the father's 1995 pension, made no order for spousal maintenance, and left the beneficial interest of two properties with the mother and one with the father. He ordered the sale of the FMH, but this would not take effect provided that the mother secured the father's release from the mortgage, and paid him all costs awards from these proceedings, plus interest. If that were done within two years, the FMH need not be sold and the father would transfer his legal and beneficial interest in it to her. The father sought his costs of the FDR, and relied on a schedule of costs totalling £8,468. The district judge ordered that the mother should pay £7,388. The father also claimed for costs for the remainder of the proceedings. The district judge, quoting Mostyn J in OG v AG [2020] EWFC 52 ("if, once the financial landscape is clear, you do not openly negotiate reasonably, then you will likely suffer a penalty in costs") found that each of the factors in FPR 28.3(7)(a), (b), (d) and (e) justified an award of costs in favour of the father, the mother's evidence having been "elusive and evasive" as to her income. The mother was ordered to pay £9,000 towards the father's costs since the FDR. Judgment, 04/07/2021, free
  • The Family Court had found it impossible to say whether the mother or her then boyfriend had been responsible for very serious injuries to a one-year-old child, but in the criminal proceedings the boyfriend had been convicted of causing them, and the mother acquitted of those charges. The Court of Appeal now considered her appeal from the refusal of an application to reopen the Family Court's findings of fact. Peter Jackson LJ noted that for an appeal of this nature to succeed an appellant must show that the judge made a material error of law or reached a conclusion that was not reasonably available. The applicant had not succeeded in that task. In this complex case, the judge had the marked advantage of having conducted a very substantial fact-finding hearing that left him with a distinctive view of the strengths and weaknesses of the evidence that he had read and heard. His judgment showed conspicuous care and command of the issues. The mother's case was essentially a rehearsal of the submissions made to the judge, with a complaint that he had not attached more or less weight to certain elements, and that approach did not really engage with the appeal test. Singh and Stuart-Smith LJJ agreed. The judge's decision was upheld and the appeal was dismissed. Judgment, 26/05/2021, free

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