- Everything (1535)
- Model letter (0)
- Practice note (5)
- Precedent (2)
- Uploads (0)
- Tools (1)
- Article (4)
- Case note (485)
- News (79)
- Polls (0)
- CPD course (0)
- CPD diploma (0)
- Training note (0)
- Webinar (23)
- Downloads (0)
- Form (40)
- Judgment (888)
- Practice direction (2)
- Rule (0)
- SI (0)
- Statute (0)
- International regs (0)
- An appeal concerning the extent of the obligation upon the court in England and Wales to enforce a foreign order in relation to children. The two children, a girl aged 16 and a boy aged 13, had lived in England and Wales for most of their lives and had been habitually resident here for at least six years. The judgment under appeal concerned applications by their father to enforce orders of the Spanish court granting him custody, and an application by the mother, made when the English court had jurisdiction, for an order that the children would live with her. The English court had refused recognition of the Spanish orders on the basis that they were irreconcilable with its own order for the children to live with their mother. In the view of Peter Jackson LJ, the judge had been right to find that she had the power to make welfare orders on the basis that the children were habitually resident in England and Wales and that the Spanish court was no longer seised. She was also right to not accept the father's argument that the recognition and enforcement proceedings should take priority. He expressed some reservations about her approach to the welfare assessment, but was not persuaded that her ultimate decision was wrong, and any procedural irregularity, whether or not it was described as serious, had not led to injustice. Moylan and Phillips LJJ agreed. The appeal was dismissed. Judgment, 22/01/2021, free
- The case concerned child support for a child born in 1989. Although the child had been living with the father by 2005, arrears had accumulated before then, for which the father was now being pursued. A regular deduction order (RDO) had been made in the sum of £150.26 per week, against which the father sought permission to appeal, albeit later than allowed under the rules. HHJ Mark Rogers granted relief from sanctions, saying that it was important for this case to be resolved on its merits rather than as a result of a procedural default. Permission to appeal was also granted. He found that the rigorous test laid out in s 41E of the Child Support Act 1991 had not been satisfied: the arrears had not been extinguished and were capable of recovery. But in his view, no attention had been paid to the impact of relevant events in 2007, including an apparent declaration that the mother had withdrawn her authority for the arrears to be collected. The appeal was allowed. Making a new decision, he found that the points against making an RDO substantially outweighed those in favour, and so he declined to make one. Judgment, 22/01/2021, 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
- An application by the father for interim permission to relocate from the UAE to England with the parties' three children, aged 10, 13 and 18. After living in the UAE for many years, he had lost his job in the oil industry, and would soon lose his right to live there. The mother was from Brazil and would need a visa to enter England. The view of the independent social worker was that if the boys had to leave the UAE it should be to England that they came. Francis J's view was that the family would not benefit from taking the boys to Brazil in the midst of the Covid crisis. He gave permission for the relocation. The mother would live with the children in a Surrey property owned by the father, while the father would rent a place to live. He encouraged the family to begin mediation sessions once they were to England. Judgment, 04/01/2021, free
- Knowles J had invited the father to provide written submissions as to whether the terms of an extended civil restraint order (ECRO) to control his litigation conduct, due to expire in November 2020, should be extended. The children in question were now aged 14 and 20. Since the making of the ECRO the father had made seven applications which had fallen within the remit of the ECRO, all of which had been refused, three of them having been totally without merit. Knowles J asked herself whether there was good reason to apprehend persistent vexatiousness by the father in the future, and decided that there was. The ECRO would be extended to November 2022. Judgment, 04/01/2021, free
- The three-year-old child had been born as the result of a surrogacy agreement, an IVF embryo produced from the couple's gametes being implanted in a surrogate mother. The couple separated before the child was born, and the father had stated that he had no wish to play any part in the upbringing of the child. The biological mother had applied for a sole parental order, but the father having changed his mind, they now jointly applied for a parental order. The three legal issues were (i) that the application was made outside of the six-month time limit (s 54(3)); (ii) that the child's home would not be the same home as both parents because they had separated (s 54(4)(a)); and (iii) whether the mother and the father could be found to be two persons who are "living as partners in an enduring family relationship" (s 54(2)(c)). Reading the provisions of s 54 in a "purposive and Convention compliant manner", Keehan J was satisfied that the statutory requirements were met on the facts of this case and concluded that a parental order made in favour of the couple was the only order which would in law recognise them as the child's parents, and was overwhelmingly in his best interests. Keehan J therefore made a parental order in respect of the child in their favour. Judgment, 22/12/2020, free
- The father applied, under the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Convention, for the summary return to Australia of three children aged 4, 9 and 13. The mother opposed the application on the basis that the retention had not been in breach of the father's rights of custody, that the father had acquiesced to the relocation, that there was a grave risk of a return exposing the children to harm, and that two of the children objected to returning and were old enough for their views to be taken into account. By the time of the hearing it was common ground between the parties that the children had been habitually resident in Australia, that the father shared rights of custody with the mother and that he had been exercising these rights. Mr David Rees QC, sitting as a deputy judge of the High Court, did not accept the mother's evidence that the father had given express consent to a permanent relocation. He found that the mother had made out an Article 13 exception in relation to the two older children's objections, but not with regards to grave harm. He exercised his discretion to direct the return of the children to Australia, but noted in a postscript that his order had not been carried into effect, the Australian courts having permitted, on an interim basis, the children to remain in England with the mother. Judgment, 20/12/2020, free
- The child arrangements order being appealed by the mother had been made by consent at the FHDRA, and had provided for the three children to live with her and spend time with the father. No reasons were given by the magistrates, and there were no references in the order to allegations of domestic abuse, safeguarding checks or to Practice Direction 12J – Child Arrangements and Contact Orders: Domestic Abuse and Harm, Family Procedure Rules 2010. The mother's grounds of appeal also asserted that a report supporting the terms of the order had been made without observing the father with the children and without the author having given proper consideration to the allegations of domestic violence. HHJ Cove found that the magistrates' decision was plainly wrong. No reasons had been given, the court had not had regard to PD 12J, the safeguarding checks were incomplete, and there had been no analysis of whether the consent order should be made nor of the risk of harm to the children. The order was set aside. Judgment, 18/12/2020, free
- An application for the summary return of the eight-year-old son to Australia, where he had always lived until being brought without warning to England by the mother. The application was made under the Child Abduction and Custody Act 1985, pursuant to Articles 3 and 12 of the 1980 Hague Convention. It was agreed that the son's habitual residence in Australia and the father's exercising of rights of custody at the material time had both been made out. The task for Mr Teertha Gupta QC, sitting as a deputy High Court judge, was thus to decide on a summary basis whether the mother had raised a valid defence under the 1980 Hague Convention and, if so, whether he should exercise his discretion not to return the child forthwith to Australia. He found that the Article 13(b) defence had not been established; there was no evidence to support the mother's assertion that the child had suffered severe symptoms of intolerable anxiety. Mr Teertha Gupta QC expressed concern that the mother's actions might be symptoms of a deeper wish to eradicate the father from the child's life. It was in the child's overall and long-term best interests to return to Australia forthwith. The father's application was granted. Judgment, 18/12/2020, free
- The parents had lived together for twelve years. During previous proceedings regarding contact with their two children, the mother had alleged domestic abuse on the father's part, both towards her and towards a subsequent partner. Following a conviction for assault on a third partner, he applied to enforce an order for contact, in response to which the mother raised the issue of his violent behaviour towards multiple partners. The district judge found that there had been domestic abuse, but later recused herself after realising that her son and the mother were members of the same sports club. The judge then agreed to re-open the district judge's earlier findings of fact on the basis of apparent bias. The mother appealed with regard to the recusal and the decision to re-open the findings. Peter Jackson LJ found that the judge's decision had been both wrong and unfair. The district judge had not discovered that her son and the mother knew each other until months after her findings of fact had been made. King and Phillips LJJ agreed. The father's application was dismissed, and the proceedings were remitted for the welfare decision to be taken on the basis of the district judge's findings of fact by another circuit judge. Judgment, 17/12/2020, free