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An extraordinary element of personal antagonism: S v C [2020] EWHC 2127 (Fam)
Roberts J considered a claim by a former wife for a financial remedy order in respect of the parties’ disabled daughter, in circumstances where the financial consequences of the parties’ divorce had already been regulated by a consent order in 2016. Article, 13/08/2020, free -
Z (A Child: Hague Convention application) [2020] EWHC 1901 (Fam)
The father applied under the 1980 Hague Convention for the return of his three-year-old son to Australia. The mother resisted the application on the grounds of habitual residence in England, acquiescence, and a grave risk of physical or psychological harm to the child, or his being in an otherwise intolerable situation, if the court required his return to Australia. Theis J decided that the defence on acquiescence would not have succeeded, but the mother had established that the protective measures put in place would not have been sufficient to reduce the risk to a level that fell below the Article 13(b) threshold. Either way, Theis J had already reached the conclusion that the son's habitual residence at the relevant time had been in this jurisdiction, and thus there had been no breach of Article 3 of the Hague Convention. The father's application was dismissed. Judgment, 12/08/2020, free -
B (A Child: Abduction: Article 13(b)) [2020] EWCA Civ 1057
The mother appealed against the judge's refusal to set aside a return order under the 1980 Hague Convention. The mother lived in England and had dual British/Bosnian nationality. The father was a Bosnian national and had always lived in Bosnia. She had returned with the child to England in circumstances which had involved a restraining order being made against the father by the Municipal Court in Sarajevo. The judge had found that the son was habitually resident in Bosnia immediately before his removal, that there had been no consent or acquiescence to his removal, and that the Article 13(b) threshold of grave risk of harm or intolerability had not been crossed. This appeal regarded the latter finding. Moylan LJ found that the Article 13(b) risk was clearly established. The judge had been wrong to discount the effect of the father's breaches of his previous undertakings, and the judge's approach to the mother's mental health had been flawed in a number of respects. It was clear that there would be a grave risk of the son being placed in an intolerable situation if they were to return to Bosnia and be separated. Peter Jackson LJ and Carr LJ agreed. The appeal was allowed and the father's Hague Convention application was dismissed. Judgment, 11/08/2020, free -
S v C [2020] EWHC 2127 (Fam)
An application by the former wife for a financial remedy order in respect of the parties’ only child, a six-year-old girl. The issue was to what extent the court should exercise its jurisdiction under section 23 of the Matrimonial Causes Act 1973 to impose conditions on the release to the parties of a frozen fund of some £3.74 million, the fund having derived from the settlement of a medical negligence claim launched on behalf of their daughter. In Roberts J's view, there had to be a formal mechanism for ensuring that the child continued to benefit from those funds. She rejected the idea of a section 89 disability trust. She made an order for child maintenance of £2,000 per month. A sum of £150,000 from the father's share of the settlement monies would be set aside as a secured maintenance fund, with the father being entitled to draw down against that fund for the child maintenance payments. £900,000 of the settlement monies could be used by the father towards purchasing a property of his own, with a charge on the property in the child's name for that amount. The mother would be permitted to use settlement monies to redeem her existing mortgage. As a condition of the release of these funds, each parent would be required to purchase life insurance with the daughter as beneficiary. Judgment, 08/08/2020, free -
Gibbs v Gibbs [2020] EWHC 2134 (Fam)
Four applications were before the court: to commit the wife for breach of a non-molestation order; to commit her for breach of an order made on 5 October 2017; for an order for sale of the wife's house; and (from the wife) to discharge the previous orders made against her. Lieven J reached the conclusion that the wife's allegations against the husband were without foundation and that she had been pursuing a "cruel and destructive" campaign against him. However, committing her once again to prison would not achieve anything. Lieven J did make the order for sale sought. A representative of the Press Association raised a concern regarding section 1 of the Sexual Offences Amendment Act 1992. Lieven J decided that where an alleged victim's identity was already in the public domain, the prohibition in section 1 could only take effect to the degree that it had any operative effect. She anonymised the judgment to the extent of calling the parties' children J and B. Judgment, 08/08/2020, free -
Rogan v Rogan [2020] EWFC B32 (OJ)
The couple had been separated since 2012 and divorced since 2014. They had two children, aged 13 and 15. The husband was in very substantial breach of his financial obligations under a previous order, to the extent of £2.6m. The husband claimed that he was insolvent and could be made bankrupt by any one of his many creditors. In HHJ Hess's view, the husband was asking her to re-open the overall quantum of a lump sum by instalments which had been part of a consent order which had been intended to be a final package. Since he was a substantial cause of his own problems, she could not regard those problems as rendering it unjust to hold him to the original order. Despite his current difficulties, the order would not be discharged by bankruptcy proceedings or by time limitation, so the former wife might one day be able to enforce it. The capital order was varied to adopt a new, agreed figure, and the child periodical payments order was varied in accordance with an agreement reached between the parties. Judgment, 08/08/2020, free -
Father v Mother [2020] EWHC 1964 (Fam)
An application by the father for the summary return to Australia of two children aged 5 and 8. The children had lived in Australia up until April 2019, when the family moved to England. The British mother filed for divorce in January 2020. The father alleged that the move to England had been planned with the intent to divorce him here, that he had been misled into thinking that they would be in England for only two years, and that his consent to the move had been vitiated by that dishonesty. Part of his case was that the mother had overreacted to an incident where he had hit the children with a belt in her absence. Lieven J did not accept that the mother had deliberately tricked the father into coming to England, and she cautioned against "an unfortunate tendency to try to analyse parents' relationships as if they were contractual agreements". The mother's reaction to him hitting the children had been wholly reasonable. At the time of the divorce papers being filed, Lieven J decided, the children had been habitually resident in England. She declined to make a return order under the inherent jurisdiction. She did not have the material that would allow her to determine that it was in the children's best interests to return to Australia. If the father wished, he could make an application under the Children Act and then apply for a specific issues order for their relocation, allowing the matter to be properly considered on full evidence. Judgment, 04/08/2020, free -
Secretary of State for the Home Department & Anor v RH [2020] EWCA Civ 1001
The mother and the Secretary of State for the Home Department brought appeals against an order for disclosure, in private family proceedings, of redacted copies of certain documents in her asylum file, to the solicitors acting for the father and the son. In Baker LJ's view, it was clear that MacDonald J had correctly identified the applicable principles of law in his first judgment and in the second had applied them in a way which was fully within his discretion and could not be successfully challenged in the Court of Appeal. His conduct of the balancing exercise required had been "unimpeachable". Phillips LJ agreed. In Peter Jackson LJ's view, the answer to questions regarding disclosure in similar cases was "not to be found in legal generalities or contestable adjectives but in a close study of the individual circumstances". The judge had reached a decision after careful consideration. Though Peter Jackson LJ had some hesitancy about the outcome, it was not open to the Court of Appeal to say that the judge's decision had been wrong. The appeal was dismissed. Judgment, 04/08/2020, free