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- The case concerned an application by the husband to set aside: a) an order for deemed service of a divorce petition; b) all orders which stemmed from that petition (certificate of entitlement, decree nisi, decree absolute). The question for the court was: did the alleged procedural errors in service render the orders void or voidable? The court concluded that: a) under the Family Procedure Rules (“FPR”) the alleged errors in service would not necessarily render these orders void; b) when considering the prejudice to both parties, this was not a case where the orders were void; d) if the orders were voidable the court would not exercise its discretion and set aside the orders. The husband’s application was dismissed. Article, 13/12/2019, free
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R v Secretary of State for the Home Department (Disclosure of Asylum Records) [2019] EWHC 3147 (Fam)The father sought disclosure and inspection of documentation from the successful asylum claim of the mother, for use in family proceedings. The mother's asylum application had been based on claims regarding physical and sexual abuse by the father. The father had applied for summary return under the 1980 Hague Convention, and requested disclosure before a fact-finding hearing. MacDonald J accepted that there was a compelling public interest in ensuring that the confidentiality of the asylum process was protected, but that did not prevent a court ordering disclosure and inspection of such documents in proceedings under the Children Act 1989 in an appropriate case. The mother was directed to produce for the court the documentation from the asylum process which she contended should not be disclosed to the father, and the court would determine whether they should be. Article, 11/12/2019, free
- The father appealed against an order for the two children to be returned to Russia. Moylan LJ, Peter Jackson LJ and Arnold LJ decided that both the father's appeal regarding habitual residence and the mother's cross-appeal regarding repudiatory retention would be dismissed, but that the judge's order made under the inherent jurisdiction would be set aside. When the 1996 Hague Convention applied, recourse could only be had to the inherent jurisdiction if permitted by the code established by the Convention. Here, there was no gap in the scheme of the Convention to justify exercising the court's inherent powers. The right course was for the mother's application for enforcement of the Russian court's order to be determined as soon as possible. Judgment, 03/12/2019, free
- In the course of applying for a Child Arrangements Order, the father brought an appeal against a finding of fact regarding the sexual act which led to the birth of the child. He argued that HHJ Scully had been wrong to describe the act as rape. Cobb J was satisfied that HHJ Scully had carefully evaluated the evidence laid before her, and reached conclusions which corresponded with the evidence. The appeal was dismissed. Judgment, 03/12/2019, free
- The father applied for permission to appeal and for a stay with regards to an interim Child Arrangements Order made in order to permit the mother to take the child on a European holiday. Theis J found that there were grounds for permission to appeal, as a live with order made had not been not before the court as an issue to be determined. But there was minimal risk of the child not returning to this jurisdiction, and the jurisdiction which they were visiting had effective procedures in place that would swiftly ensure the child's return if required, which Theis J considered unlikely. Judgment, 02/12/2019, free
- The father applied for a transfer of residence, stating that his relationship with the children, aged 10 and 11, would constantly be thwarted if they remained with their mother. The mother had covertly recorded various meetings, including one between the children and the Guardian. The creation and modification dates of documents did not align with the dates on which she claimed to have supplied the documents. HHJ Bedford was also satisfied that she had deliberately misled education professionals involved in the children's lives, perpetuating allegations which had been tried and dismissed by the judiciary. Her interference in their relationship with their father had caused them emotional harm and would continue to do so, as long as she parented them solely. During an interval at court, and being aware of HHJ Bedford's findings, the parents agreed to share the care of the children on alternating fortnights, and the Guardian endorsed this plan. HHJ Bedford thus made a suspended residence order: complete transfer of residence to the father would take place only if the mother defaulted from their agreement. Judgment, 02/12/2019, free
- The father applied for the summary return of the daughter to Malta, pursuant to the Hague Convention 1980. The defence raised by the mother was that the child was not habitually resident there. The child was 21 months old and had lived initially and mostly in England, but had also spent time in Belgium, the Czech Republic, Slovakia, Hungary, Italy, Malta and France. None of the contemporaneous correspondence between the parents illustrated a desire on the part of the father for the daughter to return to Malta, held Mr Teertha Gupta QC, sitting as a High Court judge. The child's habitual residence was always in England because she moved too often to be integrated anywhere else. Any proceedings concerning her would need to be in the Family Court in England. Judgment, 02/12/2019, free
- The wife applied to strike out the husband's claim for damages in respect of deceit. A DNA test had revealed that he was not the biological father of their child. Two issues were before Cohen J: whether the tort of deceit could relate to paternity fraud between husband and wife, and, if it could, whether it could run as a separate cause of action in parallel with financial remedy proceedings, rather than being an abuse or obstruction of the court's process. As to the former, Cohen J's view was that the tort of deceit could exist between husband and wife in respect of intimate matters, but he did not need to make a concluded finding on this issue. By reference to CPR 3.4(2)(a) and (b) he found that the claim form and particulars of claim disclosed no reasonable grounds for bringing the claim, and were indeed an abuse of the court's process or otherwise likely to obstruct the just disposal of the proceedings. The claim was struck out. Judgment, 30/11/2019, free
- The mother applied to commit the father for contempt of court. They had met, married and lived in England. In 2018 they had travelled to Saudi Arabia, where the father had said they would thereafter remain. During a trip to Pakistan for a wedding, the mother had made arrangements to return to England, but had been prevented from bringing one of their two children. She commenced proceedings here on the basis that the child remained habitually resident in England and Wales, and the father was ordered to bring her back. He did not. Holman J was satisfied that the father had been fully engaged in the proceedings, and that he was fully aware of the precise terms of the order. He was now deliberately in contempt of court. However, the mother's wish was to have her daughter returned, not for the father to be imprisoned, and Holman J adjourned the question of sanction and sentence to a date not less than six weeks after the hearing, with no sentence to be served if the father did return the child. Judgment, 30/11/2019, free
- The father applied for the summary return of two young girls to the USA. Mr Robert Peel QC had to make a determination as to whether the Hague Convention was engaged and, if so, whether there were statutory exceptions to the principle that the children should be returned to the country of habitual residence for decisions as to their future to be made. He found that the father had not consented to any permanent removal of the children to this jurisdiction. He also found that the pattern of domestic violence and abuse was not such that the Article 13(b) threshold was crossed, nor did the question marks about the mother's immigration status in the United States establish an Article 13(b) defence. Mr Robert Peel QC proposed to make an order for return on the basis of the protective measures he outlined. Judgment, 29/11/2019, free