- Both parents were British citizens, the mother living in London, the father in Switzerland. The mother applied for an Hadkinson order, for the father's two conjoined appeals to be dismissed unless he paid outstanding costs orders and other amounts previously ordered by the court. The father frankly admitted the non-payment of the amounts ordered, had not sought a stay or variation, and had not undertaken to pay. He was clearly in contempt, and had sufficient income to make payment. In determining whether to make a Hadkinson order, Poole J bore in mind that it was a case management order of the last resort, and that it had to be proportionate to the problem identified. He ordered that the father should make a payment of £88,796.37 previously ordered to be paid, together with another sum of £8,767.80 previously ordered to be paid, the total payable by a given date to the mother's current solicitors, to be held on account pending the resolution of an appeal. In default of payment, the father's two appeals would be dismissed. Judgment, 09/08/2021, free
- Dissatisfied with the outcome of proceedings, the father had posted on social media and displayed on his vehicle derogatory comments about the mother, the Children's Guardian, the social worker and the trial judge. The Children's Guardian applied for injunctive relief. Having balanced the competing rights, MacDonald J was satisfied that it was appropriate to grant an injunction. The Article 8 rights of the child and the Children's Guardian justified the interference in the father's Article 10 rights. Though this was an area where the courts had to tread very carefully, the father named the Children's Guardian in the material published not with the intention of adding to any legitimate discourse, but rather to harass and vilify her. The European Court of Human Rights had made clear that online publication of unevidenced personal attacks in the context of a legitimate public debate might not be protected by Article 10(2). Individuals with a public status, State bodies and persons acting in an official capacity were subject to wider limits of acceptable criticism than private individuals. There did, however, remain limits. Judgment, 04/08/2021, free
- The mother, born in England, appealed against an order under the Hague Convention for the summary return of her son to South Korea. After the family travelled to South Korea in December 2019, the mother had been granted a three-month tourist visa. On her case, she had then been unable to return to England until the maternal grandmother came to assist her departure in March 2020, at which point they had left, with the child, and without informing the father. The principal issues now were the determination of the child's habitual residence and the judge's approach to Article 13(b) defences. The mother also raised issues concerning the differences between the judge's ex tempore judgment, a supplemental judgment, and the final approved judgment. Baker LJ decided that the judge had been entitled to conclude that the child had acquired habitual residence in South Korea shortly after his arrival, but the assessment of the Article 13(b) defence had been flawed. It was unclear whether or not the judge had concluded that there was in fact an Article 13(b) grave risk. It was unclear whether the judge had found that there was no risk of the father removing the child from his mother's care or alternatively that there was a risk but it was ameliorated by his undertaking not to do so, notwithstanding that it was unenforceable in the Korean court. The judge's analysis of the protective measures had also been flawed. It was not therefore necessary to go on to consider whether the process adopted by the judge was procedurally unfair or amounted to a procedural irregularity. Lewis LJ and King LJ agreed, and so the appeal was allowed. The question of whether the mother could establish a defence under Article 13(b) would be remitted for determination by another judge of the Family Division. Judgment, 03/08/2021, free
- An appeal against the decision of the deputy High Court judge, who had exercised the inherent jurisdiction of the High Court to order the return of the boy to India, and had refused an application by the boy's mother under the 1980 Hague Convention for his return to the USA, from where he had been removed in disputed circumstances by the father in 2017. The father was currently in prison in London, awaiting an extradition decision, an international arrest warrant having been issued after he removed the boy from the USA. The mother currently sought asylum in the USA. The child was currently in the care of a paternal aunt, in England. The mother appealed on the grounds that the judge had failed to respect international comity by ignoring the American orders, the judge's welfare analysis had been inadequate, and the judge's finding of fact that the mother had consented to the permanent removal to India had been flawed. The challenges to the findings of fact failed. So did the argument on international comity: the American orders had been based upon the mother's case that the child had been abducted, and the deputy High Court judge had found that he had not been. As to welfare, in Peter Jackson LJ's view the deputy High Court judge's approach had been sound, and practical. He did not accept that the decision to return the boy to India had been wrong. His one reservation was with regard to contact after the boy returned. Proposals from the father's solicitor for direct and indirect contact in India for the mother and maternal family would be reflected in a recital to the Court of Appeal's order. Arnold LJ and Henderson LJ agreed. The appeal was dismissed. Judgment, 03/08/2021, free
- A fact-finding hearing within proceedings brought under the inherent jurisdiction for the return of two children, aged 8 and 6, to an unnamed country to which the 1980 Hague Convention did not apply. The court had previously refused an application for a summary return of the children to that country, and had set the case down for this fact-finding hearing. Whilst in that country, the mother had come to believe that the father was sexually abusing the younger child. Following the authorities' refusal to prosecute, and an application to end contact being refused, the mother had removed the children from that country to the United Kingdom without the father's permission. Judd J noted that a comparison between the mother's account of what the children had said in her recordings of them with the recordings themselves revealed that, for the most part, the children did not say the words the mother attributed to them, and where they did so, it was after persistent and suggestive questioning from the mother. In Judd J's view, the way in which the questioning was conducted created precisely the conditions whereby false allegations emerge. The mother's perception of what the children were saying in the recordings was so distorted that it made it very difficult to place any reliance on her evidence as to what the children said outside of them. The medical evidence was inconclusive. In all the circumstances, Judd J came to the clear conclusion on the balance of probabilities that the father had not sexually abused the child, but also, among other findings, that the mother's belief as to the sexual abuse had been genuine, albeit misguided. Both parties were encouraged to reflect upon what had happened, and to give careful consideration to what should happen to the children in the future. Judgment, 31/07/2021, free
- The wife had previously sought to register and enforce the financial provisions of a 2010 French order through the English courts, but rather than applying under the Maintenance Regulation in the Family Court had made the application in the High Court. The mistake came to light in March 2020. An application for rectification had failed since there was insufficient evidence for the court to be satisfied that the husband was habitually resident or had assets in England, and previous orders for enforcement were declared null and void. The wife now appealed against this decision on the ground that the judge had erred in failing to find the conditions in FPR PD 34E para 4 to have been satisfied, but her appeal was dismissed by the Court of Appeal on the basis of the respondent's notice, which argued that the court had made an error of law in finding that FPR 4.1(6) was sufficiently wide to allow the relief sought by the wife. The wording of FPR 4.1(6) did not provide for rectification, only for variation or revocation. In King LJ's judgment, even if FPR 4.1(6) had been engaged and an order of variation made, the court could not possibly justify backdating the order to September 2017 when the evidence necessary for the making of the order had not been before the court at the time the original order was made. It was therefore unnecessary for the Court of Appeal to hear argument in relation to FPR PD 34E. Lewison LJ and Sir Nicholas Patten agreed. The appeal was dismissed. Judgment, 31/07/2021, free
- The parties were aged 63. They had married in 1979, and separated in 2018. Four applications were made concerning an arbitrator's award made in 2020. The wife applied for the husband to show cause as to why he should not be held to the terms of the award. The husband challenged the award pursuant to s 68 of the Arbitration Act 1996, applied for leave to appeal on a point of law under s 69, and had invited the Family Court to decline to make an order in the terms of the award. The husband's challenges to the award failed on the basis that the award was not wrong; there was no relevant uncertainty, ambiguity, irregularity, or failure to deal with the issues. The disordered procedural steps in this case, together with his knowledge of similar procedural chaos in other cases, led Mostyn J to formulate guidance about the correct procedure to be adopted where one party wished to challenge an arbitral award, or where a party wished to implement an arbitral award in the face of opposition from the other party. The guidance, including a proposed standard order, was set out in the Appendix to the judgment and was issued with the authority and approval of the President of the Family Division. Judgment, 31/07/2021, free
- This was a second appeal in a financial remedy case described by the court as an exercise in self-destruction, the costs having become so disproportionate relative to the assets. The judge at first instance had made an order providing the husband with funds sufficient to buy a modest property and to pay most of his costs. The wife had appealed on the basis that the husband should not have been awarded anything at all and should bear his own costs. The appeal had been allowed, and the direct payment referable to the husband's costs had been substituted with a charge for the same sum to be secured on the property he would in due course purchase. The husband now appealed against the imposition of the charge. In King LJ's judgment, in cases where an order substantially in excess of the sum required to meet a party's assessed needs was sought in order to settle their outstanding costs (or debts referrable to costs), the judge should: (i) consider whether in any event the case was one in which an order for costs under FPR 28(6) and (7) in particular by reference to FPR PD 28 para 4.4 should be made; and (ii) have firmly in mind what the order they proposed to make by way of additional lump sum to meet a party's costs would represent if expressed in terms of an order for costs. This would act as a cross check of the fairness of the proposed order. In her view the order originally made by the judge, which allowed the parties to achieve a clean break, could not be regarded as being outside his wide discretion such that it was appropriate for his order to be altered on appeal. Moylan and Newey LJJ agreed. The appeal against the imposition of a charge on the property the husband hoped to buy was allowed. Judgment, 31/07/2021, free
- The court had two questions to consider. Was the 12-year-old son habitually resident in the jurisdiction of England and Wales? If so, should the court grant the mother's application for an order under its inherent jurisdiction requiring the son to be returned from the jurisdiction of Pakistan? The father contended that the son was now habitually resident in Pakistan, where he was attending a private school. A report from the Cafcass Family Court Adviser detailed the son's understanding of the circumstances by which he came to be in Pakistan, including that he and his parents had discussed him attending school in Pakistan prior to his mother taking him there in October 2020, and that he had understood he would be staying there for a significant period of time. MacDonald J decided that the boy had demonstrated a degree of integration in a social and family environment in Pakistan sufficient to ground the conclusion that he was habitually resident there. For example, the boy had settled into his new school and clearly saw that education as his gateway to personal success. Accordingly, this court did not have jurisdiction, and the mother's application was dismissed. Judgment, 30/07/2021, free
- The father appealed, on the basis that he was incorrectly treated as a "non-resident" parent for the purposes of s 3(2) of the Child Support Act 1991, against a regular deduction order made under s 32A of the same act, in accordance with the Child Support (Collection and Enforcement) Regulations 1992 (SI 1992/1989), relating to alleged arrears of £2,519.86 that had allegedly arisen between 2007 and 2015. Despite repeated notices being sent to the Child Maintenance Service and, later, to the Secretary of State, there had been no response at all from the Service or from the Secretary of State. HHJ Wildblood QC accepted the father's evidence that the children had spent more time living with him during the relevant period; he had nothing from the respondents to contradict it or to explain their reasoning. On the basis of that unchallenged evidence before him, he accepted that the appeal had to be allowed for the reasons advanced by the father. He did so, and set aside the deduction order. An order for costs was made against the Secretary of State, and the sums already paid to the Service under the deduction order were to be repaid forthwith. The father asked the judge to publish the judgment to record the difficulties that he had encountered in securing a resolution of the issue. Judgment, 28/07/2021, free
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