- Everything (1559)
- Model letter (0)
- Practice note (5)
- Precedent (2)
- Uploads (0)
- Tools (1)
- Article (4)
- Case note (487)
- News (80)
- Polls (0)
- CPD course (0)
- CPD diploma (0)
- Training note (0)
- Webinar (23)
- Downloads (0)
- Form (40)
- Judgment (909)
- Practice direction (2)
- Rule (0)
- SI (0)
- Statute (0)
- International regs (0)
- An application by the father for the summary return to Australia of two children aged 5 and 8. The children had lived in Australia up until April 2019, when the family moved to England. The British mother filed for divorce in January 2020. The father alleged that the move to England had been planned with the intent to divorce him here, that he had been misled into thinking that they would be in England for only two years, and that his consent to the move had been vitiated by that dishonesty. Part of his case was that the mother had overreacted to an incident where he had hit the children with a belt in her absence. Lieven J did not accept that the mother had deliberately tricked the father into coming to England, and she cautioned against "an unfortunate tendency to try to analyse parents' relationships as if they were contractual agreements". The mother's reaction to him hitting the children had been wholly reasonable. At the time of the divorce papers being filed, Lieven J decided, the children had been habitually resident in England. She declined to make a return order under the inherent jurisdiction. She did not have the material that would allow her to determine that it was in the children's best interests to return to Australia. If the father wished, he could make an application under the Children Act and then apply for a specific issues order for their relocation, allowing the matter to be properly considered on full evidence. Judgment, 04/08/2020, free
- The mother and the Secretary of State for the Home Department brought appeals against an order for disclosure, in private family proceedings, of redacted copies of certain documents in her asylum file, to the solicitors acting for the father and the son. In Baker LJ's view, it was clear that MacDonald J had correctly identified the applicable principles of law in his first judgment and in the second had applied them in a way which was fully within his discretion and could not be successfully challenged in the Court of Appeal. His conduct of the balancing exercise required had been "unimpeachable". Phillips LJ agreed. In Peter Jackson LJ's view, the answer to questions regarding disclosure in similar cases was "not to be found in legal generalities or contestable adjectives but in a close study of the individual circumstances". The judge had reached a decision after careful consideration. Though Peter Jackson LJ had some hesitancy about the outcome, it was not open to the Court of Appeal to say that the judge's decision had been wrong. The appeal was dismissed. Judgment, 04/08/2020, free
- The mother applied for costs, arguing that the father had acted unreasonably in only conceding the application for summary return at lunchtime on the first day of a three-day hearing. The father's representative pointed out that in a matter such as this, costs did not automatically follow the event and the court had a broad discretion. In Lieven J's view, if either party had been prepared to act more reasonably and take a more consensual approach, costs and court time could have been saved, but it would not be appropriate to depart from the general approach that in family proceedings involving children no order for costs is generally made. Judgment, 29/07/2020, free
- This had been an application, made by the father and resisted by the mother, for the summary return of two girls aged eleven and fourteen to Dubai, but the father conceded that his application should not be granted. Instead, he asked Lieven J to make an order for direct contact with the children, including contact outside the jurisdiction. The issue then became the risk of him retaining the girls in Dubai. The view of the children, as expressed to a Cafcass officer, was that they were happy to travel to Europe with their father, but had concerns about travelling to Dubai with him. Lieven J made a finding that the children were now habitually resident in England. Her view was that it would be exceptionally harmful to their emotional state for them to be retained in Dubai. Safeguards were necessary to mitigate that risk, and to ensure that in such a situation they would be returned to England with relatively little difficulty. An agreement between the parents, setting out their acceptance that the children were habitually resident in England and should be returned there if necessary, should be lodged with the Dubai courts. Once that was done, Lieven J envisaged travel to Dubai as being possible. Judgment, 28/07/2020, free
- The mother applied under the Child Abduction and Custody Act 1985 (incorporating the Hague Convention 1980), and in the alternative under the inherent jurisdiction, for the return of her eight-year-old son to Russia. She contended that the father had wrongfully removed or retained the child in 2019. The father opposed the applications, raising issues of whether, at the relevant time, the child had been habitually resident in Russia and the mother had had rights of custody, whether the child would be at risk following a return, and whether the child objected to a return. The father's own prior applications, including for prohibited steps orders, had been stayed pending determination of the mother's applications. Cobb J found that the son had developed a sufficient degree of integration in life in Russia, while living there for ten months or so, to acquire habitual residence. The removal had indeed been in breach of the mother’s rights of custody. He did not believe that the son would be likely to suffer the “severe degree of psychological harm which the 1980 Hague Convention has in mind” (per Lord Donaldson) and the father therefore failed in his case under Article 13(b). Cobb J did not regard the son's objection to returning as being powerfully expressed or adamant. He reached the conclusion that a return to Russia was in the son's interests, where fully-informed welfare-based decisions could be made in a court to which both parents had ready access. Judgment, 27/07/2020, free
- The father applied under the inherent jurisdiction of the High Court for an order for the summary return of four children, aged 1, 9, 13 and 14, to the jurisdiction of Pakistan. The mother opposed the application. Both parents and all four children were Pakistani nationals, but the three oldest children had UK passports. The mother alleged domestic abuse, as did the three oldest children. The father alleged a scheme to marry the children off for immigration purposes. MacDonald J found that the father had at times been an arrogant witness, pre-occupied with the impact of the case on his reputation, and dishonest in his evidence. He found that the mother had also been "economical with the truth". The children had been habitually resident in Pakistan at the time of their removal, but a welfare case against their summary return was made out. Returning them, against their wishes, would not be in their best interests. The father's application was dismissed, and a stay on the mother's Children Act 1989 proceedings was lifted. Judgment, 24/07/2020, free
- An appeal against an order that a thirteen-year-old child, a British national born in England but living in Algeria since 2008, should be brought to England so that an assessment could be made "in a place of safety" as to her best interests and living arrangements. The child had originally been taken to Algeria by both parents, the local authority having been about to initiate care proceedings. The mother now lived in England, and had raised concerns regarding forced marriage. Consular staff in Algeria had undertaken a welfare check with the daughter, and an FCO social work adviser, specialising in child safeguarding, had agreed with their assessment that the visit did not raise concerns about the daughter's health or welfare. In Moylan LJ's view, the substantive threshold required to justify the exercise of the inherent nationality jurisdiction was not crossed in this case; the circumstances did not require the court to act to protect the daughter. The judge's order had also conflicted with the limitations on the court's powers imposed by the Family Law Act 1986, and the judge had not been able to properly determine that his order was one which accorded with the daughter's welfare needs. Baker LJ and Henderson LJ agreed. The appeal had to be allowed, the judge's order set aside, and the proceedings dismissed. Judgment, 23/07/2020, free
- Both parents and the daughter were Brazilian nationals. The mother applied under the Child Abduction and Custody Act 1985 for a summary return order pursuant to the provisions of the 1980 Hague Convention. The child had been habitually resident in Brazil and had been wrongfully retained in England following a holiday. The father resisted the application on Article 13(b) grounds, and on the ground that the child objected to returning for the purposes of Article 13. The maternal grandparents and a maternal aunt had alleged violent conduct towards the child on the part of the mother, and this had been confirmed by the child in conversation with the the Cafcass Officer. MacDonald J was satisfied that there was a grave risk that returning the daughter to Brazil would expose her to harm or an intolerable situation for the purposes of Article 13(b). It was clear that the daughter had settled well in England and was having her physical and emotional needs met here. He declined to make a summary return order and dismissed the mother's application. He emphasised that his decision was reached upon the very unusual facts of this case, i.e. that the holiday had provided the opportunity for the child to alert her other parent and the authorities to the risks she faced in Brazil. This was not a paradigm case of wrongful retention following a holiday. Judgment, 21/07/2020, free
- The son had been born in Poland and brought to England by the mother. She now appealed from a return order made under the 1980 Hague Convention. Moylan LJ's view was that the deputy High Court judge hearing the case had not engaged sufficiently with the factors required to determine the issue of habitual residence, and it was unclear whether he had considered where the son was habitually resident at any date other than one particular month. His analysis had an undue focus on the mother's intentions and the question of whether she had formed an intention to stay permanently in England. Peter Jackson LJ and Newey LJ agreed. The father's application under the 1980 Convention would have to be reheard, unless the parents could come to an agreement. Judgment, 20/07/2020, free
- The Court of Appeal had decided that the daughter must be distanced entirely from a cult with which the mother was involved. The mother had said she would renounce the cult, speak to a therapist and consult a dietician in respect of the child, but the Court of Appeal had found that her undertakings wholly failed to acknowledge the change in approach required were she to maintain care of the child. The case had been remitted to the Family Division for further consideration. At this hearing, Williams J found that the mother's witness statement did not paint a persuasive picture of a significant change in attitude. There was almost no engagement with the harm caused to the child, the process leading to that harm, or the damaging nature of the beliefs and practices of the cult. Were the child to remain in the mother's care, the process of estrangement would continue and the child's relationship with the father would be terminated. The child would live with her father and spend such time with her mother as the father might agree in consultation with the independent social worker involved in the case. Judgment, 20/07/2020, free