Friday, February 05, 2016

Aburn v Aburn: Appeal allowed against advance variation of periodical payments order

Lord Justice McFarlane
A summary of Aburn v Aburn [2016] EWCA Civ 72 (04 February 2016), which concerned an appeal relating to a provision for an automatic increase in the level of periodical payments payable to the wife following the date upon which the youngest child ceased privately funded secondary education.

The appeal arose from a financial provision order made by a deputy district judge in August 2014. At that time the wife was 47, the husband was 54 and the two children of the family were 19 and 14. The order was made after a contested hearing and provided, inter alia, for the husband to pay periodical payments to the wife of £1,000 per calendar month until the first to occur of the wife's death, remarriage or further order. The order also provided for the upward variation of the periodical payments upon the youngest child completing her secondary education, the increase essentially being equivalent to 50% of the child's private school fees, which were £1,750 per month at the date of the order and were being paid by the husband. The deputy district judge's justification for the variation was that the saving on education fees should be split equally between the parties.

The husband appealed against this part of the order (it was actually a second appeal - the husband had previously appealed against three provisions in the order: his appeals in respect of two of those provisions were allowed, but the circuit judge dismissed his appeal in relation to the variation).

The Court of Appeal allowed the appeal. Giving the leading judgment Lord Justice McFarlane found that this was a "needs" case and the deputy district judge had reached an assessment of the wife's need for periodical payments, in the sum of £1,000 per month. He did not explain how, some four years later, the wife should be entitled to about twice that sum. It would be quite reasonable for the maintenance to be reviewed when the school fees payments stopped, but "it must be impossible to predict, as the deputy district judge sought to do, in August 2014, what the result of that review would be in the summer of 2018." For example, it was not known what the child would do after she left school, the wife's income may by then have increased, and the husband's finances may by then have changed.

Lord Justice McFarlane also considered:
"...that the deputy district judge was wrong to regard the cessation of school fees payments as a 100% net gain to the family finances to be split by a calculation entirely limited to the size of the previous year's school fees bill, and without any regard whatsoever to the likelihood (as it surely is) that [the child] will require further financial support in the period that then follows."
He concluded:
"...that the deputy district judge was wrong as a matter of law and plainly wrong in the exercise of his discretion, by making an advance variation order based upon only one known element with respect to the parties' finances, and the needs of [the child], some four years hence."
Accordingly the appeal was allowed and the variation provision in the order was struck out.

Lords Justices Vos and Simon gave consenting judgments.

Better debate on family law reform, and 3 children cases

This week on Marilyn Stowe’s Family Law & Divorce Blog I attempt to jettison scaremongering and prejudice from the debate on family law reform, before diving into the judgments of three very different children cases:

The end of the world as we know it - Raising the level of debate on family law reform.

Curtailing children litigation - Looking at something the President said in Q v Q (No 3).

Re C: A surprising state of affairs - The child relocation case Re C.

Re M: A sad and moving case - Looking at the care case Re M, which has also been in the news for other reasons.

Have a good weekend.

Thursday, February 04, 2016

The Syndrome: Screening on 29.2.16

There is to be a screening of a US documentary film called The Syndrome at 7pm on Monday 29th February 2016 at Whirled Cinema, 259 Hardess Street, London SE24 0HN (near to Loughborough Junction, Brixton & Herne Hill stations).

There is no charge to attend but donations of £10 would be welcome to cover the costs of the screening. Any ‘profit’ will be donated to the charity The Who Cares? Trust which supports children in care in the UK.

The film makers describe The Syndrome as “an explosive documentary following the crusade of a group of doctors, scientists, and legal scholars who have uncovered that “Shaken Baby Syndrome,” a child abuse theory responsible for hundreds of prosecutions each year in the US, is not scientifically valid. In fact, they say, it does not even exist. Filmmaker Meryl Goldsmith teams with national award­winning investigative reporter Susan Goldsmith to document the unimaginable nightmare for those accused and shine a light on the men and women dedicating their lives to defending the prosecuted and freeing the convicted. The Syndrome uncovers the origins of the myth of “Shaken Baby Syndrome.””

For more information about the film and the screening, see this post on the Family Law Week blog.

Wednesday, February 03, 2016

In the matter of B (a child): Appeal allowed

Lord Wilson gives the judgment of the Supreme Court


The girl at the centre of this appeal, B, is a British national now aged 7. The Respondent (a British national of Pakistani ethnicity) is B’s biological mother and was previously in a same-sex relationship with the Appellant (a British national of Indian ethnicity), who has strong claims also to be described as a mother of B. The couple lived in England and set up home together, but they never became civil partners. Following IUI treatment, given to them both as a couple, the Respondent gave birth to B in April 2008. The Respondent undertook most of B’s care but the Appellant also helped care for her and, as co-parents, they took B out at weekends, in particular to visit members of their families.

In December 2011, the relationship broke down acrimoniously and the Appellant left the family home.Over the next two years, the Respondent progressively reduced the level of the Appellant’s contact with B. The Appellant objected and suggested mediation. Meanwhile, the Respondent decided privately to move with B to live in Pakistan where she says members of her wider family remain. She did not share this decision with the Appellant. On 3 February 2014 the Respondent moved to Pakistan with B where they have remained ever since. Although the Appellant did not consent to it, B’s removal to Pakistan was lawful. On 13 February 2014, unaware where the Respondent had taken B, the Appellant applied under the Children Act 1989 (“1989 Act”) for orders for shared residence of B, or for contact with her. This application depended upon showing that B was “habitually resident” in England at the time it was issued (i.e. 13 February 2014). Subsequently, having learned that the Respondent had taken B to Pakistan, the Appellant also applied for orders under the court’s inherent jurisdiction over B (as a British national) that she be made a ward of court and returned to England.

In July 2014 Hogg J held that (a) the English court had no jurisdiction to determine the Appellant’s 1989 Act application because B had lost her habitual residence immediately upon her removal to Pakistan on 3 February 2014; and (b) the inherent jurisdiction over a British national who was neither habitually resident nor present in England should be exercised only if the circumstances were “dire and exceptional”, and this was not such a case. On 6 August 2015, the Court of Appeal dismissed the Appellant’s appeal. The Appellant appeals to the Supreme Court in respect of both applications.


The Supreme Court allows the appeal on the Appellant’s application under the 1989 Act by a majority of 3:2 (Lord Clarke and Lord Sumption dissenting) on the basis that B remained habitually resident in England on 13 February 2014. Lord Wilson gives the lead judgment.


Habitual residence

Lord Wilson (with whom Lady Hale and Lord Toulson agree) observes that two consequences flow from the modern international primacy of the concept of a child’s habitual residence. First, it is not in the interests of children routinely to be left without a habitual residence [30]. Second, the English courts’ interpretation of the concept of habitual residence should be consonant with its international interpretation [31]. The present case, however, involved a third aspect of the concept of habitual residence: the circumstances in which a child loses his or her habitual residence [32]. The traditional English law approach to this issue is heavily dependent upon parental intention. In particular, in In re J(A Minor), Lord Brandon observed that a person may cease to be habitually resident in a country in asingle day if he or she leaves it with a settled intention not to return and settle elsewhere [33-34].

Lord Wilson notes that the Supreme Court in A v A held that the English concept of habitual residence should be governed by the criterion set out in the CJEU jurisprudence: namely, that there bes ome degree of integration by the child in a social and family environment. This focuses on the child’s situation, with parental intention being merely one relevant factor [35-38]. Lord Wilson identifies two points in the CJEU jurisprudence relevant to the issue of when habitual residence is lost. First, the effect of Recital 12 to the Brussels II Regulation is that, where the interpretation of the concept of habitual residence can reasonably follow two paths, the courts should follow the path perceived better to serve the interests of children. Second, the CJEU has indorsed the view that, although it is conceivable that a child may have no habitual residence, this will only be in exceptional cases [40-44].

Lord Wilson concludes that the modern concept of a child’s habitual residence operates in such a way as to make it highly unlikely, albeit conceivable, that a child will be left without a habitual residence; the concept operates in the expectation that, when a child gains a new habitual residence, he or she loses their old one. Lord Brandon’s observation in In Re J should no longer be regarded as correct, and Hogg J fell into error in being guided by it [45-47].

Lord Wilson therefore states that the correct question is whether B had by 13 February 2014 achieved the requisite degree of disengagement from her English environment [48]. He concludes that, taken cumulatively, the factors pointing to the conclusion that B had not by 13 February 2014 achieved the requisite degree of disengagement compel the conclusion that she retained habitual residence in England [49-50]. Accordingly, the Appellant’s application under the 1989 Act can and should proceed to substantive determination by the High Court (Family Division) [51].

Lord Sumption (dissenting) considers that Hogg J made no error of law and, having heard and reviewed the evidence, was entitled to find that B lost her habitual residence in England on 3 February 2014 [64-80]. Lord Clarke agrees [89-95].

Inherent jurisdiction

Given the majority’s conclusion on habitual residence, it is unnecessary to decide whether the inherent jurisdiction can be exercised. Lady Hale and Lord Toulson observe that none of the reasons for caution when deciding whether to exercise the inherent jurisdiction has much force in this case. They consider that the jurisdiction is not confined to exceptional circumstances; it could have been exercised if the court held that B required protection [59-62]. Lord Wilson agrees, but leaves open the question of whether it would have been appropriate to exercise the inherent jurisdiction in this case [53].

Lord Sumption (dissenting) considers that, unless the inherent jurisdiction is reserved for exceptional cases, it may be exercised in a manner which cuts across the statutory scheme. He considers that the jurisdiction could not have been exercised in this case [81-87]. Lord Clarke, noting that the jurisdiction must be exercised with great caution, agrees that it should not be used on the facts of this case [96-97].

References in square brackets are to paragraphs in the judgment, which can be found here.

Monday, February 01, 2016

News Essentials: 1st February 2016

A brief summary of the essential family law news and cases from the last week:

HHJ Bellamy issues local section 20 practice guidance
In the light of recent developments in case-law in respect of the use (and misuse) of s 20, Children Act 1989 by local authorities when children are voluntarily accommodated in their care, Leicester Designated Family Judge, HHJ Bellamy, has issued local section 20 practice guidance. Full story: Family Law.

Court of Protection to increase transparency with start of pilot scheme
A pilot scheme begins today which will see the public and media gain access to Court of Protection hearings across England and Wales for the first time. Full story: Family Law.

The ICACU releases guidance on care cases with an international element
The International Child Abduction and Contact Unit (ICACU) has published a form and guidance notes where co-operation into and out of the jurisdiction under either Brussels IIa or under the 1996 Hague Convention is required in care proceedings. Full story: Family Law.

LiPs ‘behind unfair’ divorce settlement
A High Court judge has granted permission for a woman to appeal her divorce settlement, after a lack of representation due to legal aid cuts led a district judge to conclude incorrectly that she was a liar and a bigamist. Full story: Law Society Gazette. See Azizi v Aghaty, below.

Parker J provides comprehensive review of the law and guidance on committal applications
In W v H (No 2) (Contempt Contents of Application Notice) [2015] EWHC 2436 (Fam) Parker J provides a comprehensive review of the law and guidance on the subject of committal applications in her decision on a wife's application for committal in respect of the husband's alleged breaches of a lump sum order and undertakings. Full story: Family Law.

Senior judges lambast government over court fees
Deep divisions between the government and judiciary over court fee increases were today laid bare through a rare barrage of public criticism. Full story: Law Society Gazette.

Q v Q (No 3) [2016] EWFC 5 (28 January 2016)
Applications by the father for contact and by the mother for an order under s.91(14). Applications dismissed. Full report: Bailii,

S (A Child) [2015] EWCA Civ 1345 (3 November 2015)
Appeal against direction in second adoption proceedings allowing admission of report criticised in successful appeal against earlier adoption order. Appeal allowed. Full report: Family Law Week.

F (Children) [2015] EWCA Civ 1315 (26 November 2015)
Appeal by mother against order for no contact, save as agreed. Appeal allowed. Full report: Family Law Week.

Azizi v Aghaty [2016] EWHC 110 (Fam) (13 January 2016)
Appeal by wife against financial remedies order. Appeal allowed on the ground that the district judge had wrongly concluded that the wife had committed bigamy. Full report: Bailii.

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For more news, see here.

For more cases, see here.

To subscribe to the Family Lore Focus free weekly Newsletter (which includes links to all of the week's top family law news stories, cases, articles and blog posts), go here.

Friday, January 29, 2016

S (A Child): Tainted report not permitted on re-hearing of adoption application

Sir Ernest Ryder
A summary of S (A Child) [2015] EWCA Civ 1345 (3 November 2015), which concerned the re-hearing of a step-parent adoption in respect of an 8 year-old boy, 'S'.

In February 2015 the Family Court at Reading heard cross applications by S's father for direct contact with S and by his stepfather, his mother's second husband, for a step parent adoption. The court made the adoption order.

The father appealed. The Court of Appeal allowed the appeal on the basis that the process that led to the adoption order being made was sufficiently flawed to amount to procedural irregularity because of unfairness. The unfairness was summarised as follows:
"(a) the court was misled about the involvement of the child and his representation in the adoption application and, given the issues in question namely adoption with no contact, it was inadvisable at the very least to discharge the child's guardian and remove the child as a party: it removed the child's voice from the process; 
(b) the limitation in the oral evidence that was heard, albeit caused by an agreement between the parties that cannot have been right, created a procedure within which the father's case was not put in any sufficient way, if at all, so that the process was unfair; 
(c) the evidence of the local authority social worker while apparently coherent and professional, did not deal with the issues of history relating to the the mother and was compiled by a professional colleague of the mother so as to give rise to an unacceptable perception of bias; and 
(d) the court did not deal with the significant issues of fact that had arisen about why contact had not occurred in the past and why the child's mother had not engaged with the previous proceedings."
The case was remitted for rehearing before a different judge.

A case management hearing took place before His Honour Judge Tolson, QC on 12 August 2015, at which the following directions were made:

(1) There be an independent social worker to address the issues of contact and adoption.

(2) Five issues of fact be considered, the determination of which would help resolve whether the father had been alienated from S by the mother and in any event, inter alia why there had been a cessation and non resumption of contact between S and his father.

(3) The annexe A report which was the subject of the Court of Appeal's criticism in the first appeal, remain as an admitted document, but an addendum be prepared by the same author to address the deficiencies identified by this court.

The father appealed against the third direction, on the basis that the existing annexe A report should not be relied upon and that the work should be undertaken afresh by a new reporter, unconnected with S's mother.

Three justifications were given for placing continuing reliance upon the original report and for asking the same author to write an addendum:

(a) The Court of Appeal did not find as a fact that the report's author was biased.

(b) The child was said to object to further questioning and assessment.

(c) The independent social worker and the children's guardian between them would, in any event, be independent of the annexe A reporter, so that full cross examination could take place on the latter's report and addendum.

Hearing the second appeal, Sir Ernest Ryder did not accept these justifications:
"First, this court decided that the annexe A report was fundamentally flawed. The court did not deal with the question of whether that was because of actual bias by the author, a failure to understand the reason why lack of contact between father and son was a key issue that on any basis required investigation, or both. It remains surprising that an annexe A reporter would not deal with an issue that important when considering whether the potential adopter is suitable and the mother who is the wife of that potential adopter is the only person other than the child who knows why contact did not take place. 
Short of the court deciding that there was no bias and there was an innocent reason for the failure to examine an issue that was so important, the report remains fundamentally flawed and no reliance can be placed upon the same. 
In an appropriate case, but probably not this case, it would have been open to the case management judge to have heard evidence at the case management hearing on the question of bias and the reasons for the fatal omission, so as to come to a conclusion that it was in the interests of the child to allow continued reliance to be placed on a report.  But that process did not occur in this case. The asserted justification is accordingly based on an assumption that is, in the context of this court's earlier conclusion, insufficient. 
Second, the child's apparent objection to any further discussion and/or assessment is part and parcel of the key issue in the case. The court needs the opinion of the children's guardian about that, uninfluenced by a tainted report. Whether the children's guardian and the independent social worker see the child once or more than once should have been left to the professional skill and expertise of the children's guardian. Insofar as that guardian may disagree with the independent social worker, one or other of them can bring the matter back to Judge Tolson. 
Third, the independent social worker will report on adoption and contact, but neither she nor the children's guardian are required to report or advise on the mandatory fields that comprise an annexe A report as set out in PD 14C. If the court wants alternative annexe A advice, it must say so; otherwise it will be by no means certain that there will be detailed material upon which cross examination of the annexe A reporter can be based."
Sir Ernest concluded:
"The report of an annexe A reporter is an important welfare protection for a child who is the subject of an adoption application. The court has already decided that it is tainted.  Reliance upon it, on the facts of this case, should not be permitted. The report should be removed from the bundle, as should the father's statement associated with it ... A new annexe A report should be undertaken by the independent social worker who should be directed to address the PD 14C criteria and that reporter should be permitted to see the child more than once, provided the children's guardian does not disagree."
Accordingly, Sir Ernest allowed the appeal. Lords Justices Sales and Richards gave concurring judgments.

LiPs, fees and child support

Child support, the state and future of the family justice system were the themes of my posts this week on Marilyn Stowe’s Family Law & Divorce Blog, which included:

Litigants in person briefing: nothing new, but it does bear repeating - Looking at the House of Commons Library briefing paper on the rise of the self-represented litigant in civil and family cases

Company car not income for child support calculation - The case KM v Secretary of State for Work and Pensions (Child support : calculation of income).

Sir James talks to the Justice Committee on fees, and more - What the President had to say to the House of Commons Justice Committee this week.

An update on the 2012 child maintenance scheme - Looking at the latest statistics for the 2012 scheme.

Have a good weekend.

Wednesday, January 27, 2016

An invitation to make your voice heard

Family law organisation Resolution is conducting a survey and would like to hear from anyone working in the area of family law. The survey offers the opportunity to help make a difference and change the shape of family law.

Resolution wants to gain the insight of family law professionals, including those who are not actively involved in Resolution. This feedback will enable them to better support their members and, more importantly, the families they help in their day-to-day work.

By completing the survey you also have the chance to win £220 to spend on any Resolution service such as training or publications; or an iPad mini.

Make your voice heard

Monday, January 25, 2016

News Essentials: 25th January 2016

A brief summary of the essential family law news and cases from the last week:

New CAP Orders released by the President
The President has released a set of overhauled orders to be used under the Child Arrangements Programme. Full story: Family Law Hub.

Family Justice Written statement to Parliament
Update on investigation into faulty online form used in divorce proceedings. Full story: Ministry of Justice.

Length of High Court financial remedy case skeleton arguments to be reduced
The recent drive to ensure court documents are kept concise is continuing, with Mostyn J revising his guidance on the efficient conduct of financial remedy hearings allocated to a High Court Judge. Full story: Family Law.

President issues consultation on draft adoption guidance
The President of the Family Division, Sir James Munby, has today sent around for consultation a draft proposal for guidance to replace the President’s Guidance: Listing Final Hearings in Adoption cases from 3 October 2008. Full story: Family Law.

President publishes consultation on proposed amendments to Bundle PD - PD27A
The President of the Family Division, Sir James Munby, has today (19 January 2016) published a Memorandum proposing amendments to the Bundles PD - PD27A. Full story: Family Law.

Ismail v Choudhry [2016] EWCA Civ 17 (22 January 2016)
Appeal against declaration that a marriage which took place in Pakistan was valid and therefore recognised in this jurisdiction. Appeal allowed. Full report: Bailii.

P (A Child) [2016] EWCA Civ 3 (20 January 2016)
Appeal by mother against care and placement orders. Appeal dismissed. Full report: Bailii.

D (A Child), Re (No 3) [2016] EWFC 1 (14 January 2016
Care proceedings. Application by local authority for placement order, in case where both parents suffer learning disabilities. Full report: Bailii.

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For more news, see here.

For more cases, see here.

To subscribe to the Family Lore Focus free weekly Newsletter (which includes links to all of the week's top family law news stories, cases, articles and blog posts), go here.

Friday, January 22, 2016

The show goes on

Whilst this blog enters its eleventh year, the show goes on over at Marilyn Stowe’s Family Law & Divorce Blog, where my posts this week included the following:

Wardship: When nothing else will do - As in the case Re S (Wardship).

A misconceived application - The Northern Ireland Magistrates’ Court decision Jones v Ivors.

Should civil partnership be available to all? - Looking at that topical question.

Protecting children from perpetrators of domestic abuse - Looking at Women’s Aid’s Child First campaign. See also this post.

Have a good weekend.