Family Law Hub

Evidence

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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 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 husband died after being struck by a car in Ukraine, and had left no will. His estate was represented by his mother and brother, who claimed that the wife had been involved in the death, and brought a claim under the Forfeiture Act 1982. The wife applied for orders to strike out Ukrainian evidence relating to her movements prior to the death. Chief Master Marsh found that the court must be very cautious about excluding evidence that appears to be admissible before the trial. The Civil Procedure Rules provide the court with ample powers to ensure a fair trial. In this case he saw no compelling reason to exclude the evidence. Judgment, 25/09/2019, free
  • The father sought the summary return of his son to California. HHJ Robertshaw allowed oral evidence on the issue of acquiescence but found that very little of value or relevance was gained. The written communications did not support a defence of acquiescence under Article 13(a), and the judge was satisfied that adequate arrangements could be made to secure the child's protection after his return, so the defence under Article 13(b) (grave risk of harm/intolerability) also failed. A return order was made. Judgment, 08/05/2019, free
  • Wife's application within financial remedy proceedings for a whistle-blower's statement to be admitted as evidence was refused. The new material fell well short of being capable of establishing fraud or iniquity that would justify overriding or ignoring the legal professional privilege which otherwise would attach to all that the whistle-blower's statement describes. Judgment, 28/02/2019, free

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