Family Law Hub

Consent Orders

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  • The father had sought an order for the American mother to return their 16-year-old daughter from the USA. A residence order had been made in his favour and he had been her primary carer for many years. The mother had arranged a plane ticket and American passport for the daughter without telling him. He had found out when the girl phoned him from the plane. The Hague Convention did not apply because of her age, so an application for wardship and return orders had been made under the inherent jurisdiction. Although the parties subsequently reached agreement, and now presented a consent order, Peel J considered it appropriate in this case to deliver a judgment, partly because jurisdictional issues arose and partly because he was of the clear view that it would assist the parties and their daughter to achieve a degree of closure. He concluded that the child had not acquired habitual residence in the USA at the relevant time, and he sympathised with the father's profound concern about the way in which the daughter had left the UK. However, the wishes of a nearly 17-year-old were likely to be determinative, absent powerful or compelling welfare interest to the contrary, and the daughter had quite simply decided that her future was in the USA. A return order would be an exercise in futility. Peel J granted the consent order sought. Judgment, 29/03/2021, 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
  • A consent order drafted by the wife's counsel had stated that periodical payments from the husband to the wife would cease upon the husband's remarriage, due to a drafting error. Upon notice of his remarriage and his intention to cease the payments, the wife successfully applied without notice to have the order amended under the slip rule. The husband applied out of time for permission to appeal and to set the previous orders aside. Knowles J found that the court had had jurisdiction to amend the order, despite the husband's assertion that it was no longer extant. The error in the consent order had been wholly accidental and genuine, though it was unfortunate it had not been detected and corrected earlier. The case law was plain that the slip rule could be used to correct an order to give effect to the court's intention, and that was the case here. If not corrected, the error would deprive the wife of her entitlement to ongoing periodical payments and thus fail to give effect to the court's intention. The husband's appeal was dismissed. Judgment, 18/11/2020, free
  • The wife made an application to implement the terms of a consent order. The husband cross-applied, to have the order implemented in a different manner. The premise of the consent order had been that two valuable properties in London and New York constituted matrimonial property, and their value would be aggregated with a third property, the overall value being divided equally between the parties. In Mostyn J's judgment, the true facts on which he had made the consent order had not been known by either the parties or the court at the time the order was made, and had the true facts been known (regarding the trusts involved, which were not capable of being collapsed or dissolved) he would have made a materially different order. The order was set aside. Judgment, 09/09/2020, free
  • The former wife's defence to claims for possession of the matrimonial home, and for weekly use and occupation payments of £5000, had referred to the terms of the financial remedy consent order, which in her view permitted her to occupy the property until it was sold. The county court judge had rejected her interpretation of the order. Fancourt J allowed her appeal, deciding that the correspondence on which the former husband had relied in the county court was not admissible as evidence of the meaning of the consent order. The county court judge erred in interpreting the order and the reasons he gave for reaching the conclusion that the appellant was a gratuitous licensee were mistaken. Judgment, 11/12/2019, free

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