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  • The Family Court had found it impossible to say whether the mother or her then boyfriend had been responsible for very serious injuries to a one-year-old child, but in the criminal proceedings the boyfriend had been convicted of causing them, and the mother acquitted of those charges. The Court of Appeal now considered her appeal from the refusal of an application to reopen the Family Court's findings of fact. Peter Jackson LJ noted that for an appeal of this nature to succeed an appellant must show that the judge made a material error of law or reached a conclusion that was not reasonably available. The applicant had not succeeded in that task. In this complex case, the judge had the marked advantage of having conducted a very substantial fact-finding hearing that left him with a distinctive view of the strengths and weaknesses of the evidence that he had read and heard. His judgment showed conspicuous care and command of the issues. The mother's case was essentially a rehearsal of the submissions made to the judge, with a complaint that he had not attached more or less weight to certain elements, and that approach did not really engage with the appeal test. Singh and Stuart-Smith LJJ agreed. The judge's decision was upheld and the appeal was dismissed. Judgment, 26/05/2021, free
  • Part III of the Matrimonial and Family Proceedings Act 1984 provided for the making of an application for financial relief following an overseas divorce. By s 13, no application could be made without the leave of the court, and by s 13(1), no leave was to be granted unless the court considered that there were substantial grounds for making such an application. In this case, the wife appealed against a 2019 order of Cohen J, where he had set aside his own ex parte order for leave and on re-consideration of her application had refused to grant leave. The Court of Appeal considered the proper approach to an application made for the grant of leave and to any subsequent application to set aside an ex parte order for leave. In King LJ's view, there had been no basis for the judge to conclude that he had not properly considered the legislative purpose of Part III: the alleviation of the adverse consequences of no, or no adequate, financial provision being made by a foreign court in a situation where there were substantial connections with England. Rather, having heard argument on both sides, he had regretted granting leave. David Richards and Moylan LJJ agreed. The wife's appeal against the order setting aside leave for her to make an application for financial relief was allowed. It was therefore unnecessary to consider whether the judge had been wrong in refusing leave when he reconsidered the application. As to the impact of Brexit upon s 16(3), there were likely to be few if any cases outstanding to which it would apply and future Part III applications would be considered without reference to the Maintenance Regulation. Judgment, 14/05/2021, free
  • 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
  • The Court of Appeal (the President of the Family Division, King LJ and Holroyde LJ) was concerned with four appeals in ongoing Children Act 1989 proceedings involving allegations of domestic abuse by one parent against the other. The decisions on the appeals, the court explained, turned on long-established principles of fairness or the ordinary approach to judicial fact-finding, and none purported to establish new law, or to establish any legally binding precedent. However, the court noted, at least 40% of private law children cases now involved allegations of domestic abuse, about 22,000 cases each year, and so the court took the opportunity to give more general guidance about such matters, such as the proper approach to deciding whether a fact-finding hearing was necessary, and whether, where domestic abuse was alleged in proceedings affecting the welfare of children, the focus should in some cases be on a pattern of behaviour rather than specific incidents. It noted that there had been effective unanimity in submissions to the court that the value of Scott Schedules in domestic abuse cases had declined to the extent that they were now a potential barrier to fairness and good process, rather than an aid. Reducing the focus to a limited number of events created the risk of the court losing the vantage point needed to consider whether there had been an overall pattern of coercive and controlling behaviour. The appeals in Re B-B and Re T were allowed, and the matters remitted to different judges. The appeal in Re H-N was allowed and the matter was remitted to the Designated Family Judge at the Central Family Court for further case management. The appeal in Re H was dismissed. Judgment, 31/03/2021, free
  • The latest stage in a protracted piece of financial remedies litigation. The matter listed had been whether a stay should be granted to the wife to allow her not to transfer certain monies from a Swiss account pursuant to the order under appeal, but in the event Lieven J was able to consider both the stay and the outstanding points on appeal. The wife argued for the husband to provide an indemnity that covered her potential liability to a firm of solicitors. Lieven J found that the risk the wife perceived could not be considered fanciful. There had been a significant change of circumstances, and it had been inequitable not to vary the order. The clean break settlement would have left her unable to recover the money needed to cover the contingent liability to which she was potentially now exposed. Judgment, 06/03/2021, free

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