Monday, February 29, 2016

News Essentials: 29th February 2016


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

NEWS
Updated template to help social workers prepare for court launched
The ADCS and Cafcass have launched an updated template for local authority social workers to use when submitting evidence to support an application for a care or supervision order to the courts. Full story: Family Law.

Judiciary consults on the approach courts should take to McKenzie Friends
The Judicial Executive Board has issued a consultation paper proposing reforms to the existing guidance for ‘McKenzie Friends’, non-lawyers who offer assistance and in some cases seek to appear as advocates on behalf of litigants-in-person. Full story: Family Law.

Court lets mother appeal against ban on using dead daughter's frozen eggs
Daughter had eggs frozen in 2008 fearing that cancer treatment might leave her unable to have children. Full story: The Guardian, See also case report, below.

Transparency Project publishes guidance on use of 'voluntary' accommodation of children
The Transparency Project has today (24 February 2016) published guidance relating to voluntary accommodation of children by local authorities. Full story: Family Law.

CASES
W (Children) [2016] EWCA Civ 113 (25 February 2016)
Appeal against publicity order in Poppi Worthington case. Full report: Bailii.

M, R (on the application of) v Human Fertilisation and Embryology Authority [2016] EWCA Civ 102 (24 February 2016)
Application for permission to appeal order dismissing claim for judicial review of a decision of the HFEA refusing a special direction permitting the export of the claimants' daughter's gametes to a treatment centre in New York so that they could be fertilised and implanted into her mother. Full report: Bailii.

DB v DLJ [2016] EWHC 324 (Fam) (24 February 2016)
Husband's application that the wife do show cause why an arbitral award should not be made an order of the court. Application granted. 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.

Wednesday, February 24, 2016

Family Court Transparency Charity publish guidance on use of “voluntary” accommodation of children


The Transparency Project* has today published guidance** relating to voluntary accommodation of children by local authorities. Under section 20 of the Children Act 1989, local authorities may provide accommodation for children who do not have somewhere suitable to live, where their parents consent. Section 20 is not just about housing, but involves taking a child into the care system by agreement rather than by court order. There is thus no judicial scrutiny of what is happening to the child and no court timetable by when final decisions must be made about the child.

The use (and misuse) of section 20 accommodation has been the subject of recent significant judicial criticism and media comment. It is clear that problems arise when children ‘drift’ in the care system under section 20 without proper plans being made for their future, or when parents feel they were under pressure to agree to section 20 accommodation without fully understanding the consequences.

In light of this recent interest in and concern about the use of section 20, The Transparency Project has published guidance about its use. The guidance relates to children under the age of 16.

Sarah Phillimore, trustee of the Project and lead author of the guidance, said:

“The issue of ‘parental responsibility’ and who can make decisions for children under section 20 also has the potential to cause serious difficulties as it seems many parents (and some social workers) are not always clear about the impact of section 20 on their ability to exercise parental responsibility for the children.”

The Transparency Project hope that this guidance will be useful for parents, carers and professionals who are unsure about what section 20 accommodation is, when it should be used and what safeguards should be in place to make sure that parents and carers are fully informed.
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*The Transparency Project is a charity launched in 2014, whose aims are:
  • To advance the education of the public in the subject of family law and its administration, including the family justice system in England and Wales and the work of the family courts, in particular but not exclusively through the provision of balanced, accurate and accessible information about the work of family courts and the facilitating of public discussions and debates which encompass a range of viewpoints.
  • To promote the sound administration and development of the law in England and Wales, in particular, family law, by encouraging and contributing to the transparency of processes in the family justice system, contributing to public legal education concerning family law and matters of family justice, enhancing access to justice in matters of family law and by such other means as the trustees may determine.
The Transparency Project can be found at www.transparencyproject.org.uk or on twitter : @seethrujustice.

**The guidance note is general guidance only and must not be treated as legal advice.

Monday, February 22, 2016

News Essentials: 22nd February 2016


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

NEWS
Faults found in old version of Form E1
Faults affected version used between April 2011 and March 2012. Full story: Family Law Week.

Child outcomes after parental separation: variations by contact and court involvement
Analysis of the Millennium Cohort Study, exploring child outcomes after parental separation. Full story: Ministry of Justice.

Changes to legal aid for domestic violence victims ruled 'invalid'
Court of Appeal declares alterations to rules on obtaining support legally flawed, in victory for women’s rights campaigners. Full story: The Guardian. See Rights of Women v The Lord Chancellor, below.

Commons Library publishes ‘common law marriage’ and cohabitation paper
The Library of Commons last week (Tuesday 9 February 2016) published a new briefing paper relating to ‘common law marriage’ and cohabitation across England and Wales. Full story: Family Law.

CASES
K (Children), Re [2016] EWCA Civ 99 (19 February 2016)
Appeal by father against child arrangements order providing for the children to live with the mother and for there to be only indirect contact with the father. Appeal allowed. Full report: Bailii.

Rapp v Sarre (Formerly Rapp) [2016] EWCA Civ 93 (18 February 2016)
Appeal by husband against ancillary relief order giving the wife a greater share of the capital assets. Appeal dismissed. Full report: Bailii.

Queen on the application of Rights for Women v The Lord Chancellor [2016] EWCA Civ 91 (18 February 2016)
Appeal in respect of refusal of application to quash regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012, which specifies the types of supporting evidence of domestic violence which must be provided in support of an application for legal aid. Appeal allowed. 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, February 19, 2016

Data shows success of government-funded project helping warring couples negotiate settlements


New data confirms the success of a government-funded pilot project helping separated parents previously locked in family court wrangles to work with specialist mediators to negotiate long-term agreements.

The family charity that ran the scheme says Ministers need to ‘learn from and extend’ the project.

At-Court Mediation, run by National Family Mediation (NFM) in three pilot areas, provided one-to-one support for parents who had been separated for more than two years and were locked in the family court system. It helped them suspend legal proceedings and meet specialist mediators to negotiate long-term arrangements for children, property and finance.

NFM has now analysed the results of its pre- and post-project evaluations, which saw 433 participants quizzed in a number of areas both before and after their involvement in At-Court Mediation:

Key data

  • 64 per cent said the level or quality of contact with their children improved following the project
  •  
  • There was a 37 per cent overall reduction on the impact on children of the couples’ conflict
  •  
  • A 32 per cent reduction in level of conflict with their ex was recorded
  •  
  • There was a fall in recorded levels of stress of some 37 per cent
  •  
  • The project led to a remarkable improvement in the two parties’ communication with each other. Before being involved in At-Court Mediation, parents marked their communication with their ex at an average of 1.5 on a scale of 1 to 10. After the project the average had risen to 4.2 – an overall increase of 183 per cent. 

NFM’s Chief Executive, Jane Robey, said: “Our ground-breaking project shows that with the right help, families entrenched in conflict can find an exit door from the heat of the court room, and move on with their lives in a positive way.

“Our mediators helped couples better understand the impact of their behaviour on their children, and become equipped with the skills needed to reach agreements. They used coaching methods so they were psychologically prepared and wiling to find non-confrontational ways to resolve their disputes, keeping the child at the centre of their interests.

“The project helped couples develop skills in listening, understanding, working through conflict and resolving it. Couples were also given strategies to change destructive communication patterns.

“Having funded the project, we look forward to government Ministers learning from and extending it, so that warring families in other parts of England and Wales can also reap the benefits.”

The project ran in three pilot areas, Berkshire, Herefordshire and West Yorkshire, helping parents who had been separated for more than two years, and were locked in the family court system, to suspend legal proceedings and meet specialist mediators to negotiate long-term arrangements for children, property and finance.

Rapp v Sarre: A needs case, not conduct

Lady Justice Black
A brief summary of Rapp v Sarre (Formerly Rapp) [2016] EWCA Civ 93 (18 February 2016), an appeal by a husband against an ancillary relief order granting the wife a greater than half share of the capital assets.

The background: The parties began to live together in 1993 and married in September 1994. The wife is in her late forties and the husband is in his mid fifties. There are no children. In August 1993 the husband moved to London to work as an oil broker. The wife joined him there a few months later. Her role was to look after the household and she has not worked since then.The marriage ran into difficulties in about 2003 when the wife discovered that the husband was taking cocaine and drinking excessively and suspected that he was using female escorts. Attempts to address the problems, including attendance by the husband at rehabilitation clinics, were unsuccessful. In 2009, in the light of the husband's addictive behaviour, the wife concluded that the marriage was over and the parties separated in December 2009. They were divorced in 2014.

The order: The assets of about £13.5 million were divided as to 54.5% to the wife and 45.5% to the husband, on a clean break basis. The reasons given for departing from equality were in part to cater for the wife's needs and in part the husband's conduct, which the judge accepted had led to "the reckless frittering away of family money".

The appeal: Lady Justice Black gave the leading judgment of the Court of Appeal. I will deal here with the three primary grounds for the appeal:

1. That the parties' needs should have been treated as identical: Lady Justice Black was not persuaded by this argument, considering that the judge's approach to need was open to him. For example, she said: "On the judge's findings, whereas marriage had left the wife with no effective earning capacity and constrained to rely on a Duxbury fund, the husband was not confined to conservative investment of his capital but would be able to make it work for him. This was something that the judge was entitled to take into account in sharing the assets between them."

2. That the husband had been left with the illiquid and risky assets: Lady Justice Black accepted the argument put forward on behalf of the wife that the assets which are now said to be illiquid and risky are those in which the husband had invested - it would have been quite unfair for the wife, who is not financially astute, to be given a share in those assets.

3. That the judge erred in his approach to the husband's addictive behaviour: Lady Justice Black took the view that the order that the judge made was justified on the basis of the wife's needs alone, and therefore even if the husband succeeded with this argument the Court of Appeal would not interfere with the order. Accordingly, she did not consider this ground for appeal.

For these reasons, Lady Justice Black indicated that she would dismiss the appeal

Mr Justice Baker and Lord Justice Patten gave concurring judgments.

Family law: A force for good


My posts this week on Marilyn Stowe’s Family Law & Divorce Blog begin with the debunking of an exaggeration and a myth, and end with a truism: that family law can be a force for good:

Examining the cost of relationship breakdown - The reality behind the sensationalist figures.

Common law marriage – the myth that won’t go away - A House of Commons Briefing Paper helps to dispel it.

What can happen if a contact order is disobeyed - The case H-R (Children).

Family law: Broken families and broken lives - Sometimes family law can make a difference.

Have a good weekend.

Thursday, February 18, 2016

Resolution response to Court of Appeal ruling on legal aid for domestic violence victims


Welcoming today's Court of Appeal ruling that government changes to legal aid for domestic violence victims are unlawful, Jo Edwards, National Chair, Resolution said:

"Women suffering from domestic abuse need access to justice. This is why Resolution members welcome the judgment made today by the Court of Appeal as it will help to ensure those suffering, or at risk of suffering, domestic abuse are able to access advice and representation.

"Resolution and our members have been proud to help Rights of Women provide evidence that illustrates that the current rules are flawed. We look forward to working with the Government and our partners to make the changes necessary to ensure more victims of domestic abuse have access to family legal aid."

Monday, February 15, 2016

News Essentials: 15th February 2016


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

NEWS
MOJ confirms closure of 86 courts
The government has today (11 February 2016) announced their intention to close 86 courts across England and Wales. Full story: Family Law.

Seven per cent increase in private law cases received by Cafcass in January
Figures released by Cafcass show that, in January 2016, the number of private law cases received increased by 7% from January 2015 levels. Full story: Family Law.

Care applications received by Cafcass in January increase by 16%
Figures released by Cafcass show that the number of care applications received in January 2016 increased by 16% from those received in January 2015. Full story: Family Law.

Updated private law orders released
Following on from the draft private law orders published in late January, new versions have been circulated which have some minor changes and corrections and also include Welsh versions. Full story: Family Law.

Special guardianship regulations updated to strengthen assessments
New rules, which will come into force at the end of February, focus on guardian's relationship with child and their future needs. Full story: Community Care.

CASES
P (A Child) [2015] EWCA Civ 1428 (24 November 2015)
Mother's appeal against a child arrangements order limiting her contact with 18 month old child to indirect contact only. Appeal dismissed. Full report: Family Law Week.

D (Children) [2016] EWCA Civ 89 (11 February 2016)
Application by father for permission to appeal against order for supervised contact and s.91(14) order. Permission refused. Full report: Bailii.

S (Children) [2016] EWCA Civ 83 (09 February 2016)
Appeal by father in relation to findings of fact made against him in the course of care proceedings relating to his two children. Full report: Bailii.

Burns v Burns [2016] EWCA Civ 37 (28 January 2016)
The appeal from a decision finding that the deceased had testamentary capacity and that the will was valid, was dismissed. Full report: Family Law.

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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, February 12, 2016

Debunking the Marriage Foundation, and more


My posts this week on Marilyn Stowe’s Family Law & Divorce Blog concentrated on the not-too-difficult task of debunking the nonsense that emanates from the Marriage Foundation, but they did also contain some serious law:

Bird’s nest custody: Another option for separating parents - The name may be a little silly, but it could work for some.

Profundity from the Marriage Foundation - The MF tell us something nobody had thought of before.

Poll shows most people don’t regret divorce or separation - As the Marriage Foundation could have said.

The thorny question of the child accuser giving evidence - As in the Court of appeal decision S (Children).

Have a good weekend.

Thursday, February 11, 2016

D (Children): Order for indefinite supervision of contact not wrong in principle

Mr Justice Baker
A summary of D (Children) [2016] EWCA Civ 89 (11 February 2016), a father's application for permission to appeal against an order for supervised contact and a s.91(14) order.

The facts were that the parties married in 2006 and had two children, born in 2006 and 2009. The parties separated in 2010 and were divorced in 2011. In January 2012 the father applied for contact and proceedings have continued pretty well continuously ever since. In the course of those proceedings the mother raised serious allegations of domestic violence against the father and the father made allegations of sexually inappropriate behaviour against the maternal grandfather. These matters were considered at a fact-finding hearing before Miss Recorder Wood QC in September 2012, when she made findings that the father had committed serious acts of domestic violence upon the mother, some in the presence of the children, that he had fabricated allegations against the grandfather of sexually inappropriate behaviour, that he had attempted to coach the older child into making allegations against her grandfather and that he had lied concerning all these matters in court.

Following this, in April 2013 the court made a residence order in favour of the mother, a prohibited steps order preventing the father removing the children from her care, a contact activity direction under s.11B requiring the father to undertake a domestic violence treatment programme provided by Relate, and a further order for indirect contact, including contact via Skype once a week. An application by the father for the immediate resumption of direct contact was refused.

A hearing took place in January 2014, when it was ordered that the father should have contact approximately every six weeks, supervised by an independent social worker. A review hearing then took place in February 2015. Judgment was handed down in April 2015, providing for supervised contact on up to six occasions a year. A s.91(14) order was also made, providing that neither parent should apply for a child arrangements order without the court's leave for a period of 3 years.

The father sought permission to appeal, claiming that the court had been wrong to order that contact should continue to be supervised, and wrong to make the order under s.91(14).

Mr Justice Baker gave the leading judgment in the Court of Appeal. As to the requirement that contact be supervised he held that the recorder was entitled to conclude that contact would have to be supervised for the foreseeable future, in the light of her previous findings against the father, a risk assessment of the father carried out by a psychologist specialising in domestic violence assessment and treatment, and her own evaluation in subsequent hearings that there had been no appreciable change in the father's attitudes or behaviour. He concluded:
"In most cases supervised contact is used as a short-term measure – a stepping stone on the way to unsupervised contact. There are, however, a minority of cases where the risks to the children are such that contact must remain supervised indefinitely. In such cases, an order for indefinite supervision of contact is not wrong in principle and the recorder was entitled to conclude that such a course was warranted on the facts of this case. An appeal against her order that contact should be professionally supervised would therefore have no prospect of success and I would therefore refuse permission to appeal."
As to the s.91(14) order Mr Justice Baker found that the order "was not draconian but, rather, measured, proportionate, and fully justified", given the history of the proceedings and the recorder's finding that the mother had become "worn down and worn out by the whole situation."

Accordingly, the father was refused permission to appeal.

Lady Justice Black and Lord Justice Patten gave concurring judgments.

Resolution condemns government court closure plan

Family law organisation Resolution has condemned today’s announcement by Government to close 86 courts across England and Wales.

The Ministry of Justice claims the courts that will close are “underused” and that by reducing “surplus capacity” it can invest more money into improving facilities elsewhere.

But members of family law organisation Resolution criticised the decision, claiming the Government’s analysis is not thorough enough to justify closures on this scale. Resolution says the court closures will have a huge impact on many families’ ability to access the justice system.

Jo Edwards, National Chair of Resolution said:

“This is devastating news for thousands of separating families. Parents and children need to be able to access the justice system. That is why it’s disappointing to see the Ministry of Justice closing so many family courts across the country.

“Those affected the most by these closures will be vulnerable people such as victims of domestic abuse, young people and those who rely on public transport to get around.

“Resolution members, and many other organisations, have presented the Government with local expertise and local knowledge which shows that their assessment of the true impact on people using the courts is patchy at best. For example, they haven’t presented any analysis of the impact on remaining courts.

“Instead of this simplistic, ill-thought through exercise, Ministers should be coming forward with detailed plans for modernising family courts. While we welcome the additional investment in remaining courts that the government has promised, this work needs to be done as a matter of urgency if the impact of these closures is to be mitigated.

“Unfortunately, parents and children will now be faced with closures at a time when the system is already struggling due to a devastating combination of funding cuts, fewer judges and an increase in the number of people representing themselves in the family court.”

Monday, February 08, 2016

News Essentials: 8th February 2016


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

NEWS
Latest deprivation of liberty ruling has ‘huge implications’ for children’s social workers
Experts say the case could soon be talked of as having a similar impact to Cheshire West itself in terms of the role of the state and its obligations to 16- and 17-year-olds. Full story: Community Care.

Non-biological mother wins international child abduction appeal in Supreme Court
The Supreme Court has allowed an appeal by a non-biological mother of a child, holding that the unilateral removal of the child to Pakistan by the biological mother did not cause the child to lose her English habitual residence, and that the English court retained full jurisdiction to make decisions about her welfare. Full story: Family Law Week. See Re B (A Child), below.

Children Arbitration Scheme to be launched
Resolution announces plan to roll-out scheme in July 2016. Full story: Family Law Week.

CASES
Aburn v Aburn [2016] EWCA Civ 72 (04 February 2016)
Second appeal from financial provision orders relating to provision for automatic increase in level of periodical payments payable to the wife following the date upon which the youngest child ceased privately funded secondary education. ,Full report: Bailii.

Re B (A child) [2016] UKSC 4 (3 February 2016)
Appeal by non-biological mother against decision that court did not have jurisdiction to deal with application seeking return of child from Pakistan. Appeal allowed. Full report: Bailii.

M (Children) [2016] EWCA Civ 61 (02 February 2016)
Appeal from a care order in respect of one of two boys of adoptive parents. Appeal allowed. 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, 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

BACKGROUND TO THE APPEAL

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.

JUDGMENT

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.

REASONS FOR THE 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:

NEWS
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.

CASES
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 cases, see here.

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