Thursday, January 31, 2013

New FPR Part 25 (Experts and assessors)


Just a quick post to remind practitioners that the new FPR 2010 Part 25 (Experts and assessors) comes into force today, together with the accompanying practice directions.

The Family Procedure Rules have not yet been updated on the Ministry of Justice website (why not?), but you can find the new Part 25 here. The good people at Jordan's Family Law have also published a summary of the changes the new rules make, together with helpful destinations and derivations tables to help you navigate the new rules and practice directions.

Wednesday, January 30, 2013

AI v MT: The court's approach to the process of arbitration

Mr Justice Baker
In AI v MT [2013] EWHC 100 (Fam) Mr Justice Baker discussed the court's approach to an arbitration carried out by rabbinical authorities.

I do not propose to go into details of the case or the arbitration, but rather deal briefly with the legal principles set out by Mr Justice Baker, as follows:

1. Insofar as the court has jurisdiction to determine issues arising out of the marriage, or concerning the welfare and upbringing of the children, that jurisdiction cannot be ousted by agreement (Hyman v Hyman [1929] AC 601).

2. Save where statute provides otherwise, when considering issues concerning the upbringing of children, it is the child's welfare that is the paramount consideration.

3. The court gives appropriate respect to the cultural practice and religious beliefs of orthodox Jews as it does to the practices of all other cultures and faiths, but that respect does not oblige the court to depart from the welfare principle.

4. It is always in the interests of parties to try to resolve disputes by agreement wherever possible, including disputes concerning the future of children and ancillary relief of the breakdown of a marriage.

In this case, Mr Justice Baker endorsed the outcome of the arbitration, which he said "was in keeping with English law whilst achieved by a process rooted in the Jewish culture to which the families belong."

Not the Family Lore Clinic...


Well, I sat down with the intention of writing a Family Lore Clinic post, as seems to have become my habit most Wednesdays. As usual, I went to my blog stats and looked at the recent keyword activity that brought people here, in order to find a question to answer 'in the clinic'.

Hmm...

Yes, there were some sensible questions, but they were completely outweighed by questions and search terms which were, well... judge for yourself...

I'll begin with a couple of the sensible questions (in their original state), which can be disposed of quite quickly:

why a court would rule in favour of the father for residency

Because the court thinks that that is in the best interests of the child.

how long doesnit take for a consent order to be seald by the court

It depends upon the court, and how busy it is. When I was practising it could vary between a few days and a few months(!).

OK, moving on, we had a couple of questions possibly from the same, somewhat confused, person:

what are the benefits of being a family lawyer

Beats me...

why do i want to be a family lawyer

You're asking me?

Then things start to get a little weird:

family enforcement orders hopelessly complex and procedurally tortuous

Well, yes, I suppose you could say that.

have i got a consent order

How do I know?

what is dispensed with

Reality perhaps?

no wholly improper judicial observations escaped my lips

I should hope not!

divorce pictures were people are happy

Isn't everybody happy to get a divorce?

And finally we had the completely surreal:

cheap orange jumpsuits

Sorry, I have no idea where you might find one of them...

virgin certificate

...and I definitely wouldn't know where you might find one of them!

Tuesday, January 29, 2013

News Update: 29th of January 2013


WELCOME to this week's Family Lore News Update.

NEWS
High Court grants anonymity in TOLATA dispute
Mr Justice Mostyn reviews law on anonymisation and freedom of expression. The W v M case - see below. Full story: Family Law Week.

Research into long-term effects of children adopted from foreign orphanages published
The British Association for Adoption and Fostering has published new research into the long-term effects and outcomes for children adopted from orphanages and other institutions from abroad. Full story: Family Law Week.

Equal Marriage a step closer as legislation published
A Government commitment to open up marriage to same-sex couples took an important step forward today with the publication of the Marriage (Same Sex Couples) Bill. Full story: Department for Culture, Media and Sport.

Family Justice Board action plan published
"This plan sets out the actions the Board and its partners will take to achieve the Government's vision of a family justice system that supports the delivery of the best possible outcomes for all children who come into contact with it." Full story: Ministry of Justice. See also my summary, here.

Adoption: Councils could lose powers, says government
Councils in England could lose their powers over adoption services if they take too long to find adoptive parents, ministers have announced. Full story: BBC News.

Council adoption services at risk from 'heavy-handed' shake-up
Government plans to strip councils of responsibility for adoption if they are slow to find new families for children could be damaging to vulnerable youngsters, critics claim. Full story: The Guardian.

Eight councils fail new child-protection spot checks
Eight councils in England have failed new spot checks on child protection in the past six months. Full story: BBC News.

Property laws for cohabiting couples 'unfair', judge says
Property laws for cohabiting couples are “unfair” on women who are often left with nothing after separating from their partners, an appeal court judge said on Wednesday. Full story: The Telegraph.

President queries separate representation of parties who ‘stand together’ in care proceedings
Sir James Munby in his first published judgment as President of the Family Division has questioned the separate representation of parties who share a common interest. The Re TG case - see below. Full story: Family Law Week.

Many public law child cases will not conclude within 26 weeks, magistrates warn
Magistrates have warned that many public law children cases will not be concluded within the proposed 26-week timeframe for care proceedings, it has emerged. No surprise there. Full story: Local Government Lawyer.

Legal Services Board questions the benefits of the ‘cab rank rule’
The Legal Services Board has published a report analysing the impact on the market of paragraphs 601-610 of the of the Bar Standards Board's code, otherwise known as the 'cab rank rule'. Full story: Family Law Week.

CASES
The NHS Trust v AW [2013] EWHC 78 (COP) (23 January 2013)
Application by NHS Trust for a declaration that it is lawful for them to withdraw active medical treatment from a 57 year-old woman in a permanent vegetative state. Application granted. Full report: Bailii.

BP v KP and NI (Financial Remedy Proceedings: Res Judicata) [2012] EWHC 2995 (Fam) (26 October 2012)
Judgment on preliminary issue of whether W was barred by operation of the doctrine of res judicata from asserting in financial remedy proceedings that an agreement said by H to have been formed in early March 2008 was either the product of collusive fraud or, if not actually fraudulent, was in fact formed in 2010. Full report: Bailii. See also my post, below.

W v M (TOLATA Proceedings: Anonymity) [2012] EWHC 1679 (Fam) (25 June 2012)
TOLATA Proceedings. Application for an order that in the proceedings at the main hearing, and in the final judgment, all relevant people and places be anonymised. Full report: Bailii. See also the Family Law Week news story, above.

Cambra v Jones & Ors [2013] EWHC 88 (Fam) (25 January 2013)
Hearing relating to the enforcement of an order requiring the mother to return the children to Spain. Full report: Bailii.

Prest v Prest & Anor [2011] EWHC 2956 (Fam) (04 October 2011)
Ancillary relief application in which the court ordered companies controlled by the husband to transfer assets to the wife in or towards satisfaction of her financial remedy claim. The original Prest decision. Full report: Bailii.

DL v EL (Hague Abduction Convention - Effect of Reversal of Return Order on Appeal) [2013] EWHC 49 (Fam) (17 January 2013)
Application by father for return of the child to Texas. Application refused. Full report: Family Law Week.

C (A Child) [2012] EWCA Civ 1787 (25 October 2012)
Appeal by grandparents against placement order. Appeal dismissed. Full report: Family Law Week.

Hamilton v Hamilton [2013] EWCA Civ 13 (24 January 2013)
Appeal by husband against variation of lump sum order made by consent. Appeal dismissed. Full report: Bailii. See also the summary post by me and the comment post by Marilyn Stowe, below.

S (findings of fact), Re [2013] EWHC 15 (Fam) (14 January 2013)
Fact-finding hearing in proceedings relating to mother's applications for non-molestation and prohibited steps order, and father's application for contact. Full report: Bailii.

TG (A Child), Re [2013] EWCA Civ 5 (22 January 2013)
Care proceedings involving serious injuries to child. The parents believed at least some of the injuries may have been caused when the child was in a bouncy chair. Application by father for permission to appeal against refusal to allow expert evidence from a biomechanical engineer. Permission granted but appeal dismissed. Full report: Bailii. See also the Family Law Week news story above, the Family Law article below and the suesspiciousminds blog post, also below.

ARTICLES
Limitations on appeals against case management decisions, on instruction of experts and over-representation by lawyers
"In Re TG (A Child) [2013] EWCA Civ 5 [above] Sir James Munby P (sitting with Aikens LJ and Sir Mark Hedley) set down a series of markers for the ordering of opinion evidence and appeals from case management decisions - especially in children proceedings." Says David Burrows in this article on Family Law.

An ABC of forum disputes
"The recently reported High Court decision of AB v CB [2012] EWHC 3841 (hence the ABC!) contains helpful guidance on a number of aspects arising in family law forum issues and is a valuable addition to international family law case law." Says David Hodson in this article on Family Law.

BLOG POSTS
In England, justice is open to all, like the Ritz Hotel
Is there a difference in family justice provided to middle-class parents? A discussiony paranoidy rant… by suesspiciousminds.

BP v KP and NI (Financial Remedy Proceedings: Res Judicata)
A brief summary of BP v KP and NI (Financial Remedy Proceedings: Res Judicata) [2012] EWHC 2995 (Fam) [above]. Full post: Family Lore.

“The purifying ordeal of skilled argument on the specific facts of a contested case”
A discussion of the Court of Appeal decision in Re TG (A Child) 2013 [above], by suesspiciousminds.

Statutory orphans 2 (erm, “This time it’s practical”?)
The High Court have given some guidance [in A City Council v DC 2012] on how to deal with applications by a Local Authority to revoke a Freeing Order when their plan is no longer adoption. Full post: suesspiciousminds.

Hamilton v Hamilton: Varying a lump sum order
A brief summary of Hamilton v Hamilton [2013] EWCA Civ 13 [above], by me on Family Lore.

“All right then, I WILL give evidence
A discussion of the very tricky problem in Re R (A Child) 2012, by suesspiciousminds.

“Two thirds of children who died of abuse in 2012 could have been saved”
"An examination of this very shocking claim from the Children’s Rights Alliance for England report, and discussion of the report itself." Full post: suesspiciousminds, who obviously has nothing better to do with his time than write great blog posts.

Marital settlements: single lump sums vs multiple lump sums
"A new judgement [Hamilton v Hamilton, above] delivered by Mrs Justice Baron, sitting with Lord Justices Thorpe and Kitchin, was published by the Court of Appeal yesterday. It involves a relatively small sum of money, but also some tricky money-based family law." Says Marilyn Stowe.

Monday, January 28, 2013

BP v KP and NI (Financial Remedy Proceedings: Res Judicata)

Mr Justice Mostyn
A brief summary of BP v KP and NI (Financial Remedy Proceedings: Res Judicata) [2012] EWHC 2995 (Fam), which was decided on the 26th of October last, but has just been reported on Bailii.

It's not often you come across the term res judicata in a family law report, so I thought this case might be worth a quick look at, even though it is unlikely to have a great bearing upon the future conduct of family law proceedings.

The case revolved around a financial agreement entered into in March 2008 (according to the husband) between the husband and a friend, who was an investor in a fund managed by a company of which the husband was a part owner. I do not intend to go into the details of the agreement, but its effect was that the husband owed a substantial sum to the friend, for which the friend obtained judgment in the Chancery Division. The husband would have to satisfy the judgment out of the family assets.

The wife disputed this. She claimed that the agreement had actually been entered into in 2010, when the marriage was breaking down, and was a fraudulent attempt to reduce her claim (she maintained that the friend would repay the husband 'when the dust has settled'). To test her claim, she tried to obtain a copy of the agreement, but coincidentally it, its counterpart and the husband's computer copy had all been lost.

The wife therefore applied to set aside the Chancery judgment. However, for reasons I will not go into, matters relating to the agreement were compromised, and as part of the compromise the wife's application was dismissed. The effect of the compromise upon the 'matrimonial pot' was to reduce it by between £2,258,931 and £3,826,640.

Two matters fell to be determined by Mr Justice Mostyn in the financial remedy proceedings:
  1. Whether the wife was barred by operation of the doctrine of res judicata from asserting in the financial remedy proceedings that the agreement was either the product of collusive fraud between the husband and the friend, or, if not actually fraudulent, was in fact formed in 2010; and
  2.  
  3. Whether at the final hearing the wife was also barred from running a case of "add-back" in relation to the losses suffered by the husband by reason of the agreement.
In respect of the first issue, counsel for the wife accepted that the effect of the Chancery judgment, which would not now be impeached by virtue of the compromise, was that he could not by virtue of the doctrine of res judicata argue that the agreement was procured by fraud and was therefore void. However, the judgment said nothing of when the agreement was formed, and he therefore maintained that the wife was not precluded from asserting that the agreement had been entered into in 2010, which would greatly strengthen her case on add-back.

Mr Justice Mostyn agreed, and held that the wife was not estopped from seeking a finding as to the date on which the agreement was formed at the final trial of the financial remedy proceedings, in support of her add-back argument.

In respect of the second issue, Mr Justice Mostyn was not prepared to bar the wife from running her add-back argument, although he did indicate that she faces "a stiff climb" to meet the requisite test.

News Podcast: For the week to the 28th of January 2013

A brief summary of the top family law news stories and cases from the last week, in the usual short, easy-to-listen format.



(If you can't see the audio player above, you can listen to the podcast here.)

Saturday, January 26, 2013

Something for the Weekend: Radiohead - Paranoid Android

Just because I heard this the other day, for the first time in a while. Don't ask me to explain what the video is all about...

Friday, January 25, 2013

Marriage (Same Sex Couples) Bill published


The Government has today published its same-sex marriage bill, the Marriage (Same Sex Couples) Bill 2012-13.

The Bill will:
  • enable same-sex couples to marry in civil ceremonies
  • ensure those religious organisations that wish to do so can opt in to conduct marriage ceremonies for same-sex couples
  • protect those religious organisations that do not wish to marry same-sex couples from successful legal challenge

The Bill will also enable civil partners to convert their partnership to a marriage (section 9).

A couple of things I've noted:
  • Firstly, the nomenclature issue has been dealt with by the terms "husband" including a man who is married to another man and "wife" including a woman who is married to another woman (see Schedule 3, paragraph 5(2)).
  •  
  • Secondly, the 'adultery' issue has been dealt with by adding an extra sub-paragraph to section 1 of the MCA that reads: "Only conduct between the respondent and a person of the opposite sex may constitute adultery for the purposes of this section" (Schedule 4, paragraph 3).

There is a news story about the Bill on the Department for Culture, Media and Sport website here, you can follow the progress of the Bill on the Parliament website here and you can read the draft Bill here.

Family Justice Board action plan published


The Family Justice Board has published an Action Plan to Improve the Performance of the Family Justice System. The Plan "sets out the actions the Board and its partners will take to achieve the Government's vision of a family justice system [i.e., following the Family Justice Review] that supports the delivery of the best possible outcomes for all children who come into contact with it." The Plan runs until 2015 and will be reviewed and updated annually.

By March 2013 the Board plans to have:
  • Developed and disseminated a safeguarding toolkit for use by agencies that provide dispute resolution and other supporting services to separating parents outside of the court process.
  • Consulted on new quality standards for expert evidence and how these can be enforced.
  • Identified the main areas of practice where performance most needs to improve and formulated a programme of performance improvement actions in response.
  • Identified the local areas where there are the greatest challenges overall (particularly delays in public law), and taken forward targeted action to support those areas.
  • Established a Knowledge Hub to aid the dissemination of research on key aspects of family justice to stakeholders and professionals across the system.
  • Ensured Local Family Justice Boards are set up, have in place Chairs, are meeting regularly and have in place robust monitoring arrangements by October 2012.
  • Successfully piloted the new HMCTS Care Monitoring System, for care cases issued after 1st April 2012, which provides an effective tracking tool for each case and hard data on any drivers of delay within each care centre area.

By March 2014 the Board plans to have:
  • Agreed and disseminated new quality standards for expert evidence (subject to consultation).
  • Rolled out a Programme of early support for Local Authorities, targeting key areas of court-related skills and pre-proceedings practice and providing models for quality assurance processes.
  • Made fully operational the updated Operating Framework across all Cafcass areas to help Cafcass staff ensure proportionate use of their time.
  • Developed referrals and approaches so that parents can take up Parenting Information Programmes to support the resolution of disputes out-of-court.
  • Developed and introduced a system for private law children cases to enable less complex cases to be resolved more quickly and to provide better support to self-represented parties.
  • Developed and published processes to assist courts, other parties and self-represented litigants to support self represented litigants through private law court proceedings, while maintaining fairness to all the parties involved.
  • Developed a new system so that where a court order is breached within the first 12 months the case can be returned to court within a matter of weeks with the aim of resolving the issue at that hearing, or if the issue cannot be resolved, setting a clear timetable for moving the matter forward.

By March 2015 the Board plans to have:
  • Delivered a full communications strategy to publicise effectively the Board’s priorities and programme of work for reforming the system throughout the first three years of its operation.
  • Developed, monitored and reviewed a framework of the outcomes experienced by children who come into contact with the family justice system.

The Plan is contained in an eleven-page table which sets out the actions, the 'key performance measures', 'key deliverables', the delivery date and details of the lead organisation and main supporting partners for each action.

The Plan can be found here.

Thursday, January 24, 2013

Hamilton v Hamilton: Varying a lump sum order

Mrs Justice Baron
A brief summary of Hamilton v Hamilton [2013] EWCA Civ 13, decided today.

This was an appeal by the husband against an order varying a lump sum order that had been made by consent. The lump sum order required the wife to pay to the husband five lump sums, totalling £450,000.

The wife paid £240,000, but then her business went into administration, and she applied to vary the order, and was given more time to pay. The husband appealed.

Giving the leading judgment in the Court of Appeal, Mrs Justice Baron made the following findings in respect of the 5 grounds of appeal:

1. The judge was wrong to conclude that any order for the payment of lump sums over time is an order for a lump sum by instalments.

2. However, the judge was not wrong in holding that the order was for a lump sum by instalments, and thus variable.

3. Whether the judge was wrong in law in holding that Section 31 (2) (d) permits the Court to vary the quantum of the lump sum ordered as opposed to the timing of the same was irrelevant, as the judge did not vary the quantum.

4. The Judge was not wrong in principle to vary the lump sum in this case given the facts as found - her decision was just in the circumstances.

5. Lastly, the Judge was not plainly wrong and/or perverse in finding the wife was not the true beneficial owner of the company for which she worked.

Accordingly, the appeal was dismissed.

Lord Justice Kitchin and Lord Justice Thorpe gave consenting judgments.

Mrs Justice Baron concluded her judgment by recommending that: "...in future, parties may consider that a recital at the beginning of an order which sets out the basis of the agreement in terms of a potential variation would put disputes of this type beyond doubt."

More on adoption from the Government


The Government clearly can't leave adoption alone - hardly a week seems to pass without some new government initiative aimed at improving the adoption system. The latest move, unveiled by Children and Families Minister Edward Timpson (above), is that councils could lose their powers over adoption services if they take too long to find adoptive parents.

I'm not qualified to comment on the move, but I just hope that too much meddling by politicians out to justify their existence doesn't make a bad situation worse.

Bulldog image by Sebastian Bulldog.

Wednesday, January 23, 2013

Property laws for cohabiting couples 'unfair'

Lord Justice Toulson
The Telegraph has just reported a case in the Court of Appeal today in which Lord Justice Toulson has described the property laws for cohabiting couples as "unfair".

The case concerned a woman, Pamela Curran, who was seeking permission to appeal against a ruling that, after a relationship of more than 30 years, she had no right to a share in the business or the home where she and her former cohabitee had lived together. Lord Judge Toulson granted her permission to appeal the ruling, and is quoted as saying:
“The law of property can be harsh on people, usually women, in that situation. Bluntly, the law remains unfair to people in the appellant's position, but the judge was constrained to apply the law as it is."
Family lawyers, including this one, know the scenario full well, and have been calling for a change in the law for years. Sadly, the Government decided not to proceed with the Law Commission's recommended reform of the law.

Family Lore Clinic: Is a sealed consent order in divorce dependent on decree absolute?


Yet another question about consent orders, i.e. orders setting out the agreed financial/property settlement on divorce or dissolution of civil partnership.

The answer to the question is quite straightforward: consent orders can be made at any time after the decree nisi of divorce (or conditional order on dissolution of civil partnership), but do not take effect until the decree absolute (or final order on dissolution of civil partnership). So the consent order is dependent upon decree absolute, and the settlement contained in it is not final until after decree absolute.

The simplest way to think of it is that the financial/property settlement relates to the divorce (or dissolution of civil partnership) - without that, there obviously can't be a divorce settlement, and there is no divorce until it is finalised by the decree absolute.

(As usual, if you require more details or specific advice, you should consult a specialist family lawyer.)

Tuesday, January 22, 2013

News Update: 22nd of January 2013


WELCOME to this week's Family Lore News Update.

NEWS
Two-thirds of children who died of abuse in 2012 'could have been saved'
Nearly two-thirds of children who died as a result of abuse last year could have been saved, a damning report has claimed. Full story: The Independent.

Chief inspector in Wales raises concerns about social worker caseloads
The Welsh inspectorate’s latest annual report found ‘stark variability’ in the performance of social services departments across the country. Full story: Community Care.

LSC decides against funding community legal service grants
The LSC has decided to end the CLS grants programme when the current grants come to end on 31 March 2013. Full story: Family Law Week.

Japan will join Hague Convention on child abduction
The Japan Times reports that the Japanese Foreign Minister, Fumio Kishida, has announced that the government will ratify 1980 Hague Convention on the Civil Aspects of International Child Abduction. Full story: Family Law Week.

Prior authorities for experts in family cases
New guidance has been published online to help providers identify when they need to apply for prior authorities for experts in family cases. Full story: Ministry of Justice.

Average time for disposal of care and supervision applications is 47.7 weeks
The average time for the disposal of a care or supervision application in the third quarter of 2012 was 47.7 weeks, continuing the drop from 51.6 weeks in the previous quarter, according to the latest statistics. Full story: Family Law Week.

Family lawyers praise High Court for jailing husband
The decision of the High Court to imprison Scot Young, a man whose wife Michelle believes is worth up to £400m, has been welcomed by family lawyers. Full story: Solicitors Journal. See also the law report, below.

Almost a third of legal aid firms ‘consider pulling out’
More than 31 per cent of legal aid practices are considering pulling out of publicly funded work, a survey of 2,000 firms by the Law Society and LSB has revealed. No surprise there, then. Full story: Solicitors Journal.

Kent’s improved, but cuts hurting children nationally
BASW has praised Kent Council for turning round its previously failing children’s services, but warned that government cuts continue to put children at risk nationally. Full story: BASW News.

Ofsted proposes single, annual inspection of Cafcass
Ofsted is consulting on plans to replace individual inspections of Cafcass offices with one, annual inspection of the body as a national organisation. Full story: Community Care.

Councils blame government red tape for slow adoption progress
Councils are struggling to speed up the adoption process because of the government’s failure to carry out pledges to reduce time-consuming and “ridiculous” bureaucracy, the Local Government Association has warned. Full story: Children & Young People Now.

Solicitors warned on property joint ownership
Solicitors should encourage joint property purchasers to put in writing how ownership is apportioned between them to avoid disputes where relationships break down, the Law Society and Land Registry have warned in a Practice Note. Full story: Law Society Gazette.

PRACTICE GUIDANCE
LSC Guidance: High cost cases and family advocacy scheme guidance
On 17 January 2013, the Legal Services Commission issued clarification about fees in high-cost case plans.

CASES
A City Council v DC & Ors [2013] EWHC 8 (Fam) (11 January 2013)
Case involving an application by the local authority for the revocation of an order freeing a child for adoption. Procedural guidance given in relation to such applications. Full report: Bailii. See also this short post.

KA, R (on the application of) v Essex County Council [2013] EWHC 43 (Admin) (18 January 2013)
Application for judicial review of refusal to provide accommodation for the claimant, a Nigerian citizen, and her family. Application allowed. Full report: Bailii.

AB v CB [2012] EWHC 3841 (Fam) (10 October 2012)
Case involving issue of whether English divorce proceedings instituted by the wife should be stayed to enable Indian proceedings instituted there earlier by the husband to proceed and, if so, what should happen to the wife's application under S27 MCA 1973. Full report: Family Law Week.

S-C (Children) [2012] EWCA Civ 1800 (22 November 2012)
Care proceedings. Appeal by mother against placement orders in respect of youngest two of seven children. Appeal dismissed. Full report: Family Law Week.

W (Children) [2012] EWCA Civ 1788 (15 November 2012)
Appeal by father against order for no direct contact. Appeal dismissed. Full report: Family Law Week. See also my post, below.

R (A Child) [2012] EWCA Civ 1783 (27 November 2012)
Court of Appeal, allegations of abuse, evidence before the Court limited to hearsay evidence from child, change in mother’s position following judgment, Art 6 rights. Full report: Family Law Week.

A, K and L v Croatia (Application No 37956/11) (8 January 2012)
Mother divested of her parental rights in respect of her child. She applied to restore her rights but her appeal was dismissed due to the child already being placed for adoption. Held, the mother's rights under Art 8 had been breached. Report: Family Law. Full report: ECHR.

Young v Young [2013] EWHC 34 (Fam) (16 January 2013)
Application for committal of Respondent for contempt, for breach of an order for disclosure. Respondent held to be in contempt, and sentenced to six months imprisonment. Full report: Family Law Week. See also the news story, above.

An NHS Trust v SR [2012] EWHC 3842 (Fam) (21 December 2012)
Application by an NHS Trust in respect of the treatment of a boy aged 7, who is suffering from a malignant brain tumour. Full report: Bailii. See also the post by suesspiciousminds, below.

ARTICLES
Children: Public Law Update (January 2013)
John Tughan, barrister, 4 Paper Buildings, considers some recent important public law decisions of the Supreme Court, Court of Appeal and High Court relating to children, in this article on Family Law Week.

Relocation of children
District Judge Adam Taylor discusses the case F (Child) [2012] EWCA Civ 1364. Full article: Law Society Gazette.

State Pension Changes - A Briefing for Family Lawyers
Clive Weir, a director with Albert Goodman Chartered Financial Planners, summarises the recently announced changes planned for state pensions and indicates their implications for family lawyers. Full article: Family Law Week.

Evidence, Practice and Procedure: 'Control', disclosure and enforcement of orders
"The life of the Queen's Bench and Chancery Division judge is more straightforward under Civil Procedure Rules 1998 than that of the family judge under Family Procedure Rules 2010 when it comes to some aspects of enforcement of orders." Says David Burrows, in this article on Family Law.

Without Notice Applications
"In the case of B-v-A [2012] EWHC 3127 (Fam) Mr Justice Charles delivered a Judgment on 10 December 2012 which is worthwhile bringing to the attention of practitioners." Says Mandeep Gill in this article on Family Law.

Religious Marriages: Staying a decree absolute in order to increase the chances of obtaining a religious divorce
Charlotte Rachael Proudman, a barrister at 1 Mitre Court Buildings, provides legal guidance on the Matrimonial Causes Act 1973, Section 10A, used in religious marital cases to speed up the process of obtaining religious divorces. Full article: Family Law Week.

Child Maintenance Assessments: Self-employed non-resident parents beware!
Byron James, barrister, 14 Gray’s Inn Square, considers the issue of a child support officer’s unfettered discretion in child maintenance assessments of self-employed non-resident parents. Full article: Family Law Week.

BLOG POSTS
Neglecting neglect
The Parliamentary report on child protection, and a discussion of it, by suesspiciousminds.

When to apply for prior authority (and how long the LSC thinks assessments take)
"There has finally been some guidance published about this vexed issue", says suesspiciousminds in this post.

W (Children): The innocent bystander
A summary of W (Children) [2012] EWCA Civ 1788 (15 November 2012) [above]. Full post: Family Lore.

The role of the Court in assessing alternative medical treatment
A discussion of An NHS Trust v SR 2012 [above], by the ever-prolific suesspiciousminds.

Monday, January 21, 2013

A City Council v DC & Ors: Dealing with Statutory Orphans

Mrs. Justice Eleanor King
Just a quick heads-up for a case reported today on Bailii. A City Council v DC & Ors [2013] EWHC 8 (Fam) concerned a 'Statutory Orphan', i.e. a child in relation to whom a care order was made, followed by an order declaring him free for adoption, but in respect of whom some years later he had not been adopted. The local authority therefore applied for the revocation of the freeing order.

In her judgment Mrs Justice Eleanor King set out procedural guidance for dealing with such applications, which was approved by the Acting President Mr Justice Holman. The guidance actually covers not just issuing the application but also the effect of revoking the freeing order, and what directions should then be made.

Supreme Court judgments on YouTube

Thanks to the UK Human Rights Blog for the information that the UK Supreme Court has today launched a YouTube channel showing short summaries of judgments. There aren't that many on there as yet, but they do include Lady Hale giving judgment in In the matter of A (A Child) last month, as I blogged about here:

200th Edition of the Family Lore Focus Newsletter!


I am pleased and proud (OK, not proud) to report that I have just sent out the 200th edition of the Family Lore Focus Newsletter.

For those who don't know, the Newsletter is a free weekly email sent to subscribers, containing links to all the the top family law news stories, cases, legislation, articles and blog posts that were reported on Family Lore Focus that week. The links come from across the web, and are all free to view.

If you haven't done so already, why not keep up to date with developments in family law by subscribing to the Newsletter here - what have you got to lose?

News Podcast: For the week to the 21st of January 2013

A summary of the last week's top family law news stories and cases, in the usual short. easy-to-listen format.



(If you can't see the audio player above, you can listen to the podcast here.)

Saturday, January 19, 2013

Something for the Weekend: David Byrne & St. Vincent - 'Who'

Following on from last weekend, here's what David Byrne is doing now, and it's brilliant. For more information see here. There is also a superb video of Byrne & St. Vincent in concert, here. Two extraordinarily talented people (and a great backing band).

Friday, January 18, 2013

Now We Are Seven

Here's a tasteful graphic to celebrate the seventh birthday of this blog. Seven years... it only seems like twenty. I really should get a life.

Thanks to all who have taken the time to drop by, especially my regular followers. I hope your sanity is still intact.

Thursday, January 17, 2013

W (Children): The innocent bystander

Lord Justice McFarlane
A summary of W (Children) [2012] EWCA Civ 1788 (15 November 2012), just reported on Family Law Week.

The case concerned an appeal by a father against an order that he have no further direct contact with his two daughters, aged 9 and 7. This order was the last of some 27 that had been made in various proceedings between the parties since 2005. I will not go into details, but it is pertinent that the father had an alcohol problem and had been found to be in breach of non-molestation injunctions.

After some difficulties, the father had been having contact with the girls since 2010, but this was stopped by the mother in February 2011, after the father had attended the older child's birthday party. Prior to the party the father recorded a conversation with the girls. He then consumed a considerable amount of alcohol at the party, during the course of which he threatened the mother with the contents of the recording.

The matter returned to the court and was eventually heard in June 2012. The welfare report recommended supervised contact, but the judge found that the father was unable to show any acceptance of responsibility for anything that had gone wrong and was unlikely to change his behaviour, which would have a serious adverse impact upon the mother. She therefore made an order for no direct contact for the foreseeable future.

The father appealed. There were essentially three grounds:
1. That the judge had ignored the positive duty laid upon judges to grapple with all the options for establishing contact before concluding that no contact could be established.

2. That the judge made a number of findings of fact which were not capable of being proved to the requisite standard. And

3. That the judge was in error in rejecting the section 7 report recommendations without giving sufficient weight to the matters that the section 7 report writer was relying upon.
Giving the leading judgment in the Court of Appeal, Lord Justice McFarlane rejected all three arguments. The judge had taken the correct approach, she had been justified in making her findings and she was entitled to differ from the welfare officer's recommendation. He therefore dismissed the appeal.

Lady Justice Arden and Lord Justice Thorpe gave consenting judgments.

Of note are Lord Justice McFarlane's comments regarding the father's lack of acceptance of any responsibility. He considered that at the fact-finding hearing the judge had written a message "in neon lights" to the father that she was expecting him to demonstrate some insight into how his behaviour had contributed to the situation, before the final hearing. Unfortunately, the opposite was the case - for example, he considered his behaviour at the birthday party to be "impeccable and exemplary". Instead of acknowledging that he may be part of the problem, Lord Justice McFarlane said that the father considered himself "an innocent bystander to whom all these things have miraculously happened".

First Thursfield and now Young: Are the courts getting tougher?

Solicitors Journal reports today that the decision of the High Court to imprison Scot Young has been welcomed by family lawyers.

The decision comes, of course, hot (or at least warm) on the heels of the Thursfield case that I posted about here. To recap, in Thursfield the husband was jailed for the maximum two years for contempt, for failure to disclose his assets in financial remedy proceedings.

Yesterday, as was widely reported, Mr Justice Moor jailed Scot Young for six months for "a flagrant and deliberate contempt", in failing to comply with an order for disclosure, in long-running financial remedy proceedings.

The Thursfield decision was described  by lawyers "as a stark warning to husbands who defy the courts in an effort to stop their ex-partners sharing their riches", and Young has now been called "a warning to spouses that the courts, which for so long have sat back in the face of wilful lack of co-operation, may be getting tougher".

So, are the courts really getting tougher on parties who fail to disclose their assets? Well, two cases do not make a change in approach, but they will certainly serve as a warning, and perhaps make parties think twice before they choose to be less than forthcoming as to their financial circumstances.

Let us hope that is the case. Anyone who has done financial remedy work (called 'ancillary relief' in my day) will know how frustrating it can be trying to winkle information out of recalcitrant parties when the courts fail to take a robust approach, and how difficult it can be satisfying one's client with a reasonable explanation for the difficulty.

Fortune Teller


Wednesday, January 16, 2013

Dispatches: Sharing Mum and Dad, Channel 4

Baroness Butler-Sloss gives her views
I've finally got around to watching the Channel 4 Dispatches programme 'Sharing Mum and Dad', that was broadcast on Monday.

The programme "follows presenter Tim Lovejoy, a divorced father of two, as he investigates the current situation surrounding shared parenting following divorce or separation", with particular reference to the proposed 'shared parenting presumption'.

The programme presents as an 'ideal' a case in which a child shares her time equally with her parents, spending alternate weeks with each. However, such an arrangement is not, of course, attainable, or even desirable, in most cases, depending as it does upon a number of factors, including the ability of the parents to agree matters, the parents each being able to afford suitable accommodation, the proximity of the parents and, of course, the child or children being happy with it.

Brief reference is made to an on-line survey carried out by Dispatches, in which 'more than a thousand' took part. A 'staggering' 90% of respondents said that they thought family law needed updating with regard to parental separation. Now, I don't know how the survey was conducted, but anyone who has any experience of the family law 'debate' will know that fathers' rights groups shout the loudest, and that as soon as they get wind of anything like this, they will direct their supporters to it in droves, so how representative the survey is of the views of society as a whole is not clear.

Lovejoy says that parents are pitted against each other by solicitors and the legal system, although there is no mention of the fact that these days the vast majority of family lawyers adopt a constructive non-adversarial approach, and actually try to discourage conflict, which has usually begun long before either party sets foot in a solicitor's office.

Lovejoy interviews various people on both sides of the shared parenting debate, although thankfully he avoids some of the more hysterical voices. The interviewees include a politician (former Children's Minister Tim Loughton MP, who supports the shared parenting presumption), Jeff Botterill of McKenzie friends and 'shared parenting specialists' Family Law Decisions and Baroness Butler-Sloss, who opposes the presumption. As has already been reported, Baroness Butler-Sloss makes the point that, contrary to the view of many, the presumption will not of course result in 50:50 sharing of children in all cases.

Lovejoy himself clearly supports the presumption, stating that the new legislation "will hopefully change the way society views the roles of separated mums and dads in the lives of their children". However, he accepts that a lot of parents make the mistake of being more occupied with their rights, rather than with the rights of the children. The danger, of course, is that the new legislation may make this worse, rather than better.

At only twenty-seven minutes long, the programme necessarily skims over a very complex subject,  but I thought that on the whole it presented a reasonably balanced view of the issues involved in arrangements for children after separation. It did not do so, however, regarding the arguments surrounding the shared parenting presumption. There was no discussion about why the presumption might actually be a bad thing, and no mention of the fact that it was rejected by the Family Justice Review.

We all want better outcomes for children after their parents separate. The shared parenting presumption may be a step in that direction, but it may also be a step backwards.

The programme will continue to be available to view for the next 28 days, here.

Family Lore Clinic: Do we need to fill in a Form E for a consent order?


A very large number of questions asked by readers relate to consent orders (by which I mean orders setting out agreed financial/property settlements on divorce/dissolution of civil partnership). I'm not entirely sure why this is, but it does appear that many consent orders are obtained by people who are unrepresented - and obviously there are likely to be more after legal aid for financial remedies is abolished in April.

I suppose the number of unrepresented people seeking consent orders is not entirely bad news - at least it suggests that a lot of people are able to reach agreement on financial/property settlements without a lawyer. However I would still recommend that at least some basic advice is sought to ensure that the settlement is fair and reasonable, before applying for the consent order.

Which brings me on to my next point (I will answer the question in a moment!): If you are in need of advice regarding the obtaining or implementation of a consent order, then it is perfectly possible to obtain advice just in relation to that, without going to the expense of instructing a solicitor to deal with everything. Sometimes a little advice can save a lot in the long run!

OK, now to answer the question: do you need to fill in a Form E when applying for a consent order? No, normally you don't. A Form E (see here) is a detailed statement of each party's means, and is required if there is a contested application to the court for a financial remedy. Such detail is not normally required by the court on an application for a consent order. Instead, a less detailed Statement of information form is required, as I explained in this post. As I also mentioned in that post, the court may require more information than is contained in the statement, and it is possible that this could extend to the filing of Form Es, although this would be highly unusual.

(As always, if you require more details or specific advice, you should consult a specialist family lawyer.)

Tuesday, January 15, 2013

News Update: 15th of January 2013


WELCOME to this week's Family Lore News Update.

NEWS
Father jailed over Atiya Anjum-Wilkinson abduction fails in release bid
A father who abducted his daughter and took her to Pakistan has failed in his High Court bid to be released from prison. Full story: BBC News.

No 50-50 sharing of children in new divorce law, says top judge
Parents going through divorce are being “ridiculous” if they think new laws will give them equal access to their children, says Britain’s leading family court judge. Full story: Daily Express.

The Care Inquiry draws to close with final session
Final report and recommendation will be published in Spring 2013. Full story: Family Law Week.

Husband tricked into believing wife's children were his awarded £25,000 damages
A husband has won £25,000 in damages for “bereavement” after his wife tricked him into believing children whom he raised until they were teenagers were his rather than the products of affairs. Full story: The Telegraph.

Adoption map launched to encourage would-be adopters
A new map showing the number of children waiting to be adopted in different parts of England is being published by the government. Full story: BBC News. See also this post by me.

'Adoption hotspots' map a gimmick not a solution
The Government’s ‘adoption hotspots’ map launched today showing authorities with the highest number of children waiting for adoption was described as a “simplistic approach” to a complex subject by BASW’s Acting Chief Executive Bridget Robb. Full story: BASW News.

Pregnant woman with mental health impairments avoids order for abortion
A pregnant woman with significant mental health impairments will not have to undergo an abortion after a senior judge ruled that she had enough capacity to decide whether she wanted to become a mother. Full story: The Independent.

Civil partnership recognised as 'marriage' by court
Two architects who took part in a civil partnership ceremony in Britain have become the first such couple to be officially recognised as “married”. Full story: The Telegraph.

December care applications 4% up on previous year
In December 2012, Cafcass received a total of 847 applications. This is a 4.3% increase on December 2011 levels, though it is 11% down on November 2012 levels, probably due to the seasonal reduction in demand that occurs each December. Full story: Family Law Week.

Matrimonial property rules ‘not sustainable’, family solicitors say
Resolution backs Law Commission on need for reform to avoid postcode lottery. Full story: Solicitors Journal.

PRACTICE GUIDANCE
Law Society Practice Note of 9 January 2013: Attendance of Solicitors at Local Authority Children Act Meetings
On 9 January 2013, the Law Society issued a Practice Note on attendance of solicitors at local authority Children Act meetings.

CASES
I (A Child) [2012] EWCA Civ 1765 (20 November 2012)
Appeal against placement order on basis that special guardianship order was not considered. Appeal dismissed. Full report: Family Law Week.

F (Children) [2012] EWCA Civ 1793 (15 November 2012)
Appeal by mother against order changing the residence of the children. Appeal dismissed. Full report: Family Law Hub.

E (Children) [2012] EWCA Civ 1777 (13 November 2012)
Application for permission to appeal against relocation order. Application granted. Full report: Family Law Hub.

Bristol City Council v C & Ors [2012] EWHC 3748 (Fam) (21 December 2012)
Application for a reporting restriction order arising out of care proceedings. Full report: Bailii. See also the blog posts by the UK Human Rights Blog and suesspiciousminds, below.

H (A Child) [2012] EWCA Civ 1700 (26 October 2012)
Care proceedings. Appeal by local authority against order which had the effect of adjourning the proceedings for thee months, and to direct an independent social work assessment of a couple who had been involved with the mother. Appeal dismissed. Full report: Family Law Week.

E (A Child) [2012] EWCA Civ 1773 (22 November 2012)
Appeal involving the issue of whether the court is prevented by Section 100 of the Children Act from making a child a ward of court, where the child is accommodated voluntarily under Section 20 of the Act. Full report: Family Law Week.

W (Children) [2012] EWCA Civ 1767 (28 November 2012)
Application by father for permission to appeal against refusal to make contact order. Application refused. Full report: Family Law Week.

F (A Child) [2012] EWCA Civ 1770 (8 November 2012)
Care proceedings. Application for permission to appeal against refusal of application for contact, brought by the Official Solicitor on behalf of the father. Application granted and appeal allowed. Full report: Family Law Week.

C (Children) [2012] EWCA Civ 1766 (14 November 2012)
Care proceedings. Appeal by father against order suspending contact. Appeal dismissed. Full report: Family Law Week.

A v A [2012] EWHC (13 December 2012)
Financial remedy case in which the court drew adverse inferences against the husband, due to his failure to make full disclosure and participate in the proceedings. Report: Family Law.

Ball v Andorra ECHR (App No 40628/10) (11 December 2012)
Father alleged that the refusal of the High Court of Andorra to enforce a final parent/child contact order had violated his right to maintain meaningful contact with his two children. Held, there had been no breach of the father's rights under the European Convention. Report: Family Law. Full report: ECHR. See also this post by me.

Akhtar v Hussain [2012] EWCA Civ 1762 (20 November 2012)
Order that the parties beneficially entitled to a half share in the property which they occupied as an unmarried couple. Appeal in respect of occupation rent. Appeal allowed in part. Full report: Bailii.

ARTICLES
Evidence, Practice and Procedure: Stare decisis does not apply where statute overrides
"Two recent decisions of the Court of Appeal has allowed family law cases on grounds that stare decisis did not apply because decisions of the court were wrong." David Burrows delves once again into his book of Latin legal phrases in this article on Family Law.

What do you call a judge and how much to pay for the privilege?
"Two developments late last year in Australia have interesting reflections for other countries, and give timely warnings and alerts of potential government actions", says David Hodson on Family Law.

Evidence, practice and procedure: Inquisitorial (non-adversarial) v Adversarial
"Spare a thought for the front-line circuit or district judge who is told, often enough, by the Court of Appeal that family proceedings are non-adversarial; and then is criticised by the same Court of Appeal as ‘absurd'", says the busy David Burrows in another article on Family Law.

A Second Bite at the Cherry..? Applying for a Rehearing in Family Proceedings
Rodney Noon, solicitor, looks at the scope for bringing a family law case back before the first instance court and asking it to ‘think again’, in this article on Family Law Week.

BLOG POSTS
Joint property ownership and TOLATA claims.
"The Law Society and Land Registry have today published a Practice Note in relation to joint property ownership. Whilst it has been addressed for all those involved with conveyancing it is also a good aide memoire for those of us who undertake TOLATA claims." Full post: marksageblogs.

Semantics, pedantics and Neuro-mantics
"A discussion of the fascinating “Blinded by neuroscience – social policy, the family and the infant brain” paper by David Wastell and Sue White", complete with another painful title, in this post by suesspiciousminds.

Identity of social workers may be published following fostering bungle
A discussion of Bristol City Council v C and others [2012] EWHC 3748 (Fam) [above]. Full post: UK Human Rights Blog.

The Streisand effect and care proceedings
A discussion of Bristol City Council and Others 2012 [above]. Full post: suesspiciousminds.

Imaginary written submissions
The prolific suesspiciousminds considers what would have happened had Haringey Council applied for an Emergency Protection Order in the Baby P case.

'Benefit cuts will not see more children taken into care; poverty does not equal neglect'
Cafcass is wrong, benefit cuts will not necessarily see more children taken into care, writes child protection consultant Joanna Nicolas. Full post: The Children's Services Blog.

Monday, January 14, 2013

News Podcast: For the week to the 14th January 2013

A summary of the top family law news stories and cases from the last week, in the usual short, easy-to-listen format.



(If you can't see the audio player above, you can listen to the podcast here.)

Sunday, January 13, 2013

My brain hurts


Fathers4Justice to name and shame contact deniers - 13th January 2013

Saturday, January 12, 2013

Something for the Weekend: Talking Heads - Heaven

One of my favourite Talking Heads songs, from one of the best concerts ever recorded. Need I say more?

Friday, January 11, 2013

Adoption map and helpline launched


The Department for Education has today launched two initiatives aimed at increasing the number of adoptions and speeding up the process.

Firstly, a map has been published, showing the number of children waiting to be adopted in different parts of England. The information on the map has already been published on government "scorecards" that list adoption statistics for each council, but the government hopes the map will make it easier for people to get clear information on children waiting to be adopted in their home area and elsewhere. As can be seen from the image above, the map currently shows the number of children waiting to be adopted as a the 31st of March last, so it is not entirely up to date.

Secondly, a helpline is opening today, offering advice for people who want to adopt. The First4Adoption hotline can be accessed on 0300 2220022 between 10am and 6pm Monday to Friday. The hotline is run by a group of three charities: Coram, Coram Children's Legal Centre and Adoption UK. Staff will advise people about routes they could take to adopt a child, groups they could speak to and the support available.

Children's Minister Edward Timpson is quoted as saying:
"We know many potential adopters out there can provide children with loving, stable homes but simply don't know where to start. These new tools will give many more people support in taking the first steps to adopting a child and giving them the chance to succeed in life."
The initiatives have attracted some criticism. The Association of Directors of Children's Services have said that the map is a "crude measure... which cannot be used to judge 'good' or 'bad' authorities", and the helpline has been called a "gimmick" by Francesca Polini, who ended up adopting abroad after facing, what she describes, as too many hurdles in the UK. The map has also been described as a “simplistic approach” to a complex subject by the British Association of Social Worker’s Acting Chief Executive Bridget Robb.

The adoption map can be found here, and a Department for Education press notice, here.

Thursday, January 10, 2013

Slew of new children cases


There has been a slew of new children cases reported on Family Law Week today:

Firstly, C (Children) [2012] EWCA Civ 1766, which concerned an appeal by a father within care proceedings against an order suspending contact. The appeal was dismissed.

Secondly, F (A Child) [2012] EWCA Civ 1770, which involved an application for permission to appeal against the refusal of an application for contact within care proceedings, brought by the Official Solicitor on behalf of the father. This time the application was granted and the appeal allowed.

Thirdly, W (Children) [2012] EWCA Civ 1767, which concerned another application by a father for permission to appeal against a refusal to make contact order. On this occasion the application was refused.

Fourthly, E (A Child) [2012] EWCA Civ 1773,  which was an appeal involving a 'short point of construction': whether the court is prevented by Section 100 of the Children Act from making a child a ward of court, where the child is accommodated voluntarily under Section 20 of the Act. The Court of Appeal held that it is not.

Finally, H (A Child) [2012] EWCA Civ 1700, which began with these notable words from Mr Justice Hedley:
"Every human child is born unique and retains that uniqueness throughout their lives."
This was another care proceedings case, concerning an appeal by the local authority against an order which had the effect of adjourning the proceedings for thee months, and directing an independent social work assessment of a couple who had been involved with the mother. The appeal was dismissed.

Law Society guidance for solicitors attending local authority Children Act meetings

The Law Society yesterday issued a practice note on attendance of solicitors at local authority Children Act meetings.

The note is an updated version of guidance originally issued in April 1994, which dealt only with the role of solicitors employed by the local authority called upon to attend Child Protection Conferences. This practice note has been broadened to include advice to all solicitors called upon to attend local authority meetings to progress the care planning of children's cases.

The note "focuses on the role and duties of solicitors in attendance at local authority Children Act meetings as this is considered appropriate bearing in mind the Law Society's role as the professional organisation representing solicitors". The note "should be followed unless very good reasons exist for not doing so".

The note includes the following:

  • Guidance on issues of professional conduct
  •  
  • The role of lawyers representing the local authority
  •  
  • The role of lawyers representing the child
  •  
  • The role of lawyers representing the parents
  •  
  • Exclusion/withdrawal of parents and/or children

The note can be found on the Law Society website here, or in PDF format, here.

What’s My Name?

Wednesday, January 09, 2013

Failure to enforce contact order not breach of father's human rights

European Court of Human Rights - Image: CherryX
A father who claimed that the refusal of the High Court of Andorra to enforce a judicially-ordered contact schedule breached his rights under Articles 6 and 8 of the European Convention has lost his case.

In June 2005 the parties were legally separated in Andorra. The 'separation judge' granted custody of their son and daughter to the mother, and set up a contact schedule governing the father’s contact with them.

In July 2006 the separation judge granted a motion made by the mother to suspend the contact schedule until the production of a psychological report, following claims that the extremely troubled relations between the parents were negatively affecting the children.

In April 2007 the contact schedule was restored in respect of the daughter

A psychologist's report was eventually prepared in February 2008, and recommended that contact between the father and the children was not desirable until comprehensive treatment of the children had been carried out. Following this recommendation, the court suspended the contact schedule.

The treatment never took place, as the father had failed to deposit the sum required in security for the cost of carrying out the psychological examination. Instead, the father sought to appeal. His appeals were dismissed, and he applied to the European Court, alleging that the failure of the court to enforce the schedule had breached his rights under Article 6 (Right to a fair trial) and 8 (Right to respect for private and family life).

The European Court found that there had been no violation of the father's rights. With regard to Article 8 it found:
"...that in the particular circumstances of the case the domestic authorities did not fail to fulfil their positive obligations under Article 8 of the Convention. The Court appreciates that the domestic courts always had the best interests of the children in mind and relied on expert reports and other objective evidence when they decided to suspend the contact schedule set up in favour of the applicant."
A note of the judgment can be found on Family Law, and the full report, here.