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- The father appealed concerning three aspects of a case management order made pursuant to Children Act 1989 proceedings. He wished to enforce/vary a child arrangements order, and contended that the judge had erred in refusing to order a fact-finding hearing to investigate his allegations of parental alienation, limiting the scope of the local authority's section 7 report, and refusing to appoint a Children's Guardian under FPR 16.4. The mother's position was that the father's application was part of a long-running campaign of meritless court applications aimed at undermining the current arrangements. Williams J allowed the appeal but only to a limited extent in respect of the remit of the section 7 report. The application would be remitted to the Central Family Court with a direction that an addendum section 7 report should be provided by Islington Children's Services regarding the son's expressed wishes in the light of the contact notes. In respect of all other grounds the appeal was refused. Williams J noted that the case illustrated the problems caused by the failure of parties and their advocates to focus on the real issues which the court had to grapple with at a time-limited FHDRA. Position statements which far exceeded the permitted length and did not clearly and succinctly identify the main issues to be determined were unhelpful. Judgment, 02/05/2021, free
- An application concerning two children: a girl and a boy, aged 3 and 9. The mother and father had separated during 2016 and had since divorced. The mother and children had moved from London to the countryside for the lockdown, but the mother now wished to make that a permanent move. The question for the court was whether it was in the son's best interests to live with his father in London or with his mother and sister in the countryside. The Cafcass report had concluded that it would be better for the son to stay with his father. The single joint expert had not been asked to make a specific recommendation, but made it clear that she thought the partial separation from the mother had been damaging to the son's mental health. HHJ Lloyd-Jones was not impressed by the single joint expert as a witness. In his view, the mother's evidence suggested that she was seeking to mould the children's lives around her own plans, while the father's evidence indicated that he had "a clear grasp of what his son's best interests were". After considering the welfare checklist contained in s 1(3) of the Children Act 1989, and the issues involved in dividing the siblings, HHJ Lloyd-Jones decided that on weekdays the daughter would live with her mother and the son with the father, and they would spend the weekends together, alternating between the parents, half-terms with the mother, with other holidays split evenly between the parents. Judgment, 12/04/2021, free
- A fact-finding exercise within an application for a child arrangements order with regard to the younger of two half-brothers. The only evidence had been from the parents. The mother had accused the father of grabbing her by the threat, punching her, and emotionally abusive and controlling behaviour. In HHJ Robin Tolson QC's view, "the individual allegations of domestic violence in the Schedule advanced by the mother against the father were insignificant in themselves", and unlikely to affect child arrangements. It was also, he said, "necessary to factor in the effects of a system which encourages allegations of domestic abuse", as well as the mother's mental health issues. On the morning of the trial, the mother had added an allegation of rape. HHJ Robin Tolson QC found that everything turned on the credibility of the witnesses, and none of the allegations were proven beyond limited admissions made by the father. Those admissions did mean, however, that the mother was "a victim of domestic abuse". He decided that a guardian should be appointed for the child, and a direction was made for the relevant local authority to undertake an investigation of both children to determine whether public law proceedings should be issued. By consent, he directed a psychiatric assessment of the mother. He also made an order for the child to spend time with his father, supervised by an independent social worker, once the international quarantine rules permitted it. Judgment, 12/04/2021, free
- The daughter was four years old. In 2017 the mother had been ordered to return her to England from Poland. In 2019 she had been given temporary permission to take the girl back to Poland. The purpose of this hearing was to determine whether or not the preconditions for removal had been met so that the temporary relocation would be made permanent, and, if so, to consider the time she would spend with each parent, her future schooling, and the father's concern that the terms of the final order should not be susceptible to unmeritorious variation or challenge by the mother before the Polish courts. Williams J was satisfied that the application of the paramount welfare of the child and the welfare checklist led inevitably to the conclusion that she should make her life in the medium to long term in Poland, being cared for jointly by her mother and father. He granted the mother's application for leave permanently to remove the child from the jurisdiction to live in Poland, and made an order that the child would live with her mother and father in the city they had settled in. A specific issue order was made in regard to the child attending an international primary school. Judgment, 30/03/2021, free
- The child arrangements order being appealed by the mother had been made by consent at the FHDRA, and had provided for the three children to live with her and spend time with the father. No reasons were given by the magistrates, and there were no references in the order to allegations of domestic abuse, safeguarding checks or to Practice Direction 12J – Child Arrangements and Contact Orders: Domestic Abuse and Harm, Family Procedure Rules 2010. The mother's grounds of appeal also asserted that a report supporting the terms of the order had been made without observing the father with the children and without the author having given proper consideration to the allegations of domestic violence. HHJ Cove found that the magistrates' decision was plainly wrong. No reasons had been given, the court had not had regard to PD 12J, the safeguarding checks were incomplete, and there had been no analysis of whether the consent order should be made nor of the risk of harm to the children. The order was set aside. Judgment, 18/12/2020, free
Latest know-how
- Mostyn J heard an appeal against an order which had capitalised child maintenance payments. Case note, 28/01/2021, free
- Applications for a parental order in respect of a child born following a surrogacy agreement and in respect of child arrangements. Case note, 04/11/2019, members only
- In a tweet: Local expert evidence key to securing temporary leave to remove a child to Brazil (a Hague Convention country with a poor reputation for compliance) for holidays. Case note, 04/11/2019, members only
- In a tweet: Appeal of mother (“M”) dismissed on basis that case management decisions should only be interfered with at appellate level where there has been serious error on the part of a judge. Case note, 23/09/2019, free
- An application for the child to be made a ward of the court and for a child arrangements order was rejected. Case note, 13/09/2019, members only
Latest training
- Recording of webinar first broadcast on 9th October 2019. Webcast, 10/10/2019, free
- Recording of webinar first broadcast on 21st March 2019 Webcast, 26/03/2019, members only
- Roshi Amiraftabi of 29 Bedford Row, reviews the key private children law cases, themes and practice developments from the past 12 months. Webcast, 31/05/2018, members only
- Recording of webinar broadcast live on 23 February 2017. Webcast, 02/03/2017, members only
- In this webcast, which was recorded on 1 September 2016, Charlotte Trace, barrister at 29 Bedford Row, takes us through how to make private law Children Act applications, principally applications under section 8 of the Act (namely for contact, residence, specific issue and prohibited steps orders) and applications under section 11 for contact activity directions and conditions, and for enforcement. Webcast, 02/09/2016, members only
Latest sources
- Came into force on 23 July 2018 Practice direction, 27/07/2018, free
- Form (external), 01/04/2010, free