- Two young people of Spanish nationality, aged 17 and 14, applied to the court for declarations in respect of their status with a view to taking further proceedings to regularise their legal status. After being detained in France over the 2020 summer holidays as a result of applications made to the Spanish courts by the father, they were currently unable to travel outside of the jurisdiction of England and Wales for fear of their detention or retention, and the possible arrest of their mother. The applicants invited the court to consider making final orders that they would live with their mother, and they sought a new child arrangements order. Russell J DBE unhesitatingly accepted the submission that the facts of this case were exceptional, and it fell within s 9(7) of the Children Act 1989, so an order was required in respect of the older child despite her age. The circumstances of the case required an order reflecting the situation in real terms and releasing the applicants (and their mother) from any legal obligations to spend time with the father. There was no doubt that the children were habitually resident in this jurisdiction and that this court had jurisdiction over matters relating to parental responsibility for them. Judgment, 27/07/2021, free
- This was an appeal, in the course of child arrangements proceedings, against a case management decision to exclude evidence from a fact-finding hearing where there were allegations of domestic abuse. The father's representative had raised the point that the mother's statement included allegations going beyond the five permitted in the Scott Schedule, as did other statements. The recorder noted that to permit only evidence which related to an allegation in the Scott Schedule was "a little on the narrow side", as an allegation might need to be put into context, but that it was also important to ensure that the hearing did not become unnecessarily lengthy. He had then concluded that significant sections of the mother's statement should be excluded, including her claim that that the father's violent and abusive behaviour towards the children had worsened. The mother appealed on four grounds: the recorder had been wrong to exclude the matters in the mother's sworn statement on the basis that they were irrelevant and inadmissible; wrong to exclude the professional evidence which was relevant to the child's allegations and the impact of the alleged abuse; wrong to exclude similar fact evidence, e.g. regarding the father's behaviour at work; and the recorder's conduct of the hearing had resulted in procedural fairness (a ground which was not pressed at this hearing). Judd J expressed sympathy for the recorder, who had not been responsible for any of the case management orders requiring the parties to limit their allegations to five. Nonetheless, his decision could not stand. The allegations beyond those in the Scott Schedule were neither inadmissible nor irrelevant; they were highly significant. The mother's appeal was allowed. The parents were directed to file narrative statements to be considered at the pre-trial review, alongside the mother's application to adduce evidence from doctors, her mother and the nanny. Judgment, 13/07/2021, free
- The mother, a Sudanese national with indefinite leave to remain in the UK, applied under the inherent jurisdiction of the High Court for the children to be made wards of court and for an order mandating the return of the children to the jurisdiction of England and Wales from the jurisdiction of Sudan. That application was resisted by the father, a British citizen born in Sudan. In 2017 the mother and children had travelled to Sudan, for reasons that were disputed between the parties, and the mother alleged that the children's passports had been taken from her and not returned. A 2021 passport order had required the father to deliver up the passports of the children to the Tipstaff, as well as his own. The issues for the court to determine at this final hearing were whether this was an appropriate case for the court to exercise its residual parens patriae jurisdiction; if so, whether the children should be made wards of court and a return order granted under the inherent jurisdiction; and whether the passport order should continue or be discharged. In MacDonald J's view, it was not appropriate for the court to exercise its residual parens patriae jurisdiction. The children were habitually resident in Sudan, which was the convenient forum for determination of welfare issues, and the evidence demonstrated no sufficiently compelling reason that the children required the protection of this court. The mother's application was dismissed, and the passport order was discharged. Judgment, 12/07/2021, free
- The parties had married in 1980, and divorce proceedings had concluded in 1991. The financial remedy proceedings had been enormously and bitterly contentious. The former wife now sought a wide range of orders against the former husband, including applications for: a freezing injunction under s 37 of the Senior Courts Act 1981; a non-molestation order under the Family Law Act 1996; an order for payment of outstanding arrears; an order for upward variation of spousal maintenance; an order for costs; and orders for various lump sums. In Cobb J's view, the presentation of the wife's case at the hearing had been somewhat chaotic, and her written evidence had contained unevidenced allegations and statements which strongly indicated a high level of paranoia and delusional thinking, including what were in his view extravagant claims of serious criminal conduct and acts of harassment. The application for a freezing order was doomed to failure given that the wife's purported claim for payment of arrears of periodical payments was itself hopeless. None of the issues canvassed in her evidence justified or called for a non-molestation order. Her applications were hopeless, unsupported by evidence, and without proper jurisdictional basis. Cobb J refused them all except for an application for upward variation of maintenance, which he would transfer to be heard at the appropriately located Family Court near to her home. Judgment, 09/07/2021, free
- An appeal was brought by a father, and separately by his three children, against the registration in 2020 of a Polish custody order from 2016, which had vested custody and care of the children with the mother in Poland. The children were currently in the care of their father and living in England. He had not returned them after a summer holiday visit in 2019. The mother had sought summary return in 2020, and the application had been refused, due to objections and risks relevant to Article 13 of the Hague Convention 1980. Cobb J allowed the appeal. He was satisfied that that the father and the children had made good their case for the court to not recognise the Polish custody order. The December 2016 order was irreconcilable with a later judgment relating to parental responsibility given in Poland in May 2021. Also, the judgment refusing summary return was "a later judgment relating to parental responsibility given in the Member State in which recognition is sought", per Article 23(e), which was irreconcilable with the December 2016 Order. If he were wrong on either of those points, he was satisfied that it would be contrary to public policy to recognise and enforce an order made in a Member State which was contrary to a finding of this court that an Article 13(b) 1980 Hague Convention exception had been made out. Accordingly, the order for registration was set aside. Judgment, 09/07/2021, free
- The mother appealed against an order to return her one-year-old child to his father in Norway, made pursuant to the Hague Convention 1980 after the judge decided that she had failed to establish an Article 13(b) defence. She had alleged domestic violence, such as the father hitting her with the blunt side of a knife while she held the baby, strangling her, and slapping her. Considering a video where the father said "I will kill you, I will kill you" to the child, the judge had found that those words "do not appear spoken in anger or with intent", and he could not find that the video "demonstrated to the required standard that the father was intending to make a serious threat of harm". In Coulson LJ's view, there were four critical questions. Did the judge make appropriate assumptions based on the mother's evidence? Was there a clear evaluation of the risk to the child? Did the judge have regard to and consider all the evidence? And what was his evaluation of the sufficiency of the protective measures? Nowhere in the judgment had the judge said that he was prepared to assume that any of the mother's allegations were true, nor had there been an analysis of whether, if what the mother said was true, the nature, detail and substance of her evidence established a grave risk to the child. The judge had erred in law in carrying out the evaluation and arriving at the answer in the way that he did. He had failed to adopt the approach set out in Re E (Children) [2011] UKSC 27; failed to answer the question that he had posed himself ("would the allegations which the mother makes, if true, be sufficient to create a grave risk of such harm?"); arguably failed to have regard to all of the evidence; and had not considered the issue of protective measures in the factual circumstances that were likely to apply, namely the child being returned to Norway without his mother. Moylan LJ and Nugee LJ agreed. The matter would be remitted for an urgent re-hearing, if possible before a judge of the Family Division. Judgment, 08/07/2021, free
- The parties married in Pakistan in 1981, separated in 2006, and the husband obtained a divorce in Pakistan in 2012. He died in 2021. In 2017, the wife had been given leave to bring proceedings under Part III of the Matrimonial and Family Proceedings Act 1984. The core question was whether the unadjudicated claim by the wife under Part III survived the death of the husband and could be continued against his estate. Mostyn J noted that the Part II jurisprudence unambiguously stated that a financial claim made during marriage or following divorce expired with the death of the respondent. In his judgment, this principle applied equally whether the claim proceeded under Part II following a domestic divorce or under Part III following an overseas divorce. Although he disagreed with the decision in Sugden v Sugden [1957] P 120, he was bound by it, and thus dismissed the wife's application, since her former husband had died before her claim for financial provision following the overseas divorce could be adjudicated. However, he was also satisfied that that there was a point of law of general public importance involved, and that this would be a proper case for the grant of leave to the Court of Appeal. If there were to be a leapfrog application to the Supreme Court then the dismissal of the wife's claim would be stayed, and all injunctions would stay in force until the application for leave had been heard. Judgment, 07/07/2021, free
- The Italian father sought an order for the return to Lanzarote of his two sons, aged 3 and 1, pursuant to the 1980 Hague Convention. The application was opposed by the British mother, who had brought both children to England after removing the older boy from school. The parents had never been married. Attempts to settle proceedings through mediation with Reunite had been unsuccessful. The father had been out of work, and the mother maintained that she would have no means of supporting herself should she and the children return to Spain. She would not be immediately eligible for benefits, having been away for 90 days. Although he regarded the proposed arrangements for the mother and children in the event of their return to Lanzarote as unsatisfactory, Cobb J reached the conclusion that the mother had, on balance, failed in her efforts to demonstrate that her case fell within the limited exception afforded by Article 13(b). In the circumstances, he was obliged to make a return order in respect of the children. However, he decided that it would be wrong to require their return prior to the hearing within the domestic custody proceedings in the Spanish court, where a welfare decision would be made by reference to the children's best interests. Judgment, 05/07/2021, free
- The parties married in 2004, separated in 2015 and the decree absolute of divorce was granted in 2019. The three children lived with the mother and had only indirect contact with the father. DJ Graham Keating found that their housing needs were being met, albeit imperfectly, by living in the former matrimonial home (FMH). He considered whether the income disparities and needs justified spousal maintenance. Although the mother had not been transparent about her resources, and the parties' litigation history strongly suggested that a clean break and the avoidance of subsequent litigation was very desirable, the mother would be responsible for the care of the children, for housing, feeding, schooling and clothing them. The district judge decided to grant the mother a 48.9% share of the father's 1995 pension, made no order for spousal maintenance, and left the beneficial interest of two properties with the mother and one with the father. He ordered the sale of the FMH, but this would not take effect provided that the mother secured the father's release from the mortgage, and paid him all costs awards from these proceedings, plus interest. If that were done within two years, the FMH need not be sold and the father would transfer his legal and beneficial interest in it to her. The father sought his costs of the FDR, and relied on a schedule of costs totalling £8,468. The district judge ordered that the mother should pay £7,388. The father also claimed for costs for the remainder of the proceedings. The district judge, quoting Mostyn J in OG v AG [2020] EWFC 52 ("if, once the financial landscape is clear, you do not openly negotiate reasonably, then you will likely suffer a penalty in costs") found that each of the factors in FPR 28.3(7)(a), (b), (d) and (e) justified an award of costs in favour of the father, the mother's evidence having been "elusive and evasive" as to her income. The mother was ordered to pay £9,000 towards the father's costs since the FDR. Judgment, 04/07/2021, free
- The mother and one-year-old son were currently in the jurisdiction of England and Wales. The father applied for the son's summary return to the Republic of Ireland. The mother conceded that the son had been habitually resident in the Republic of Ireland; that the father had rights of custody which he had been exercising; that she had unlawfully removed the child without the consent of the father; and that the provisions of Article 12 of the 1980 Hague Convention applied, subject to whether she was able to establish a case within the ambit of Article 13(b). As to this, she made extensive complaints regarding the conduct of the father and his family during the course of their short marriage, alleging physical and emotional abuse, and that her life would be at risk if she were to return to the Republic of Ireland. The key question for the court, said MacDonald J, was what the situation would be for the child if he were to be returned forthwith to his country of habitual residence without his mother. He concluded that in this case the mother had not satisfied the court that the separation of the son from her care and placement in his father's care would expose him to a grave risk of physical or psychological harm or otherwise place him in an intolerable situation for the purposes of Art 13(b). The mother's allegations were not irrelevant, but there was no evidence that the child had ever come to harm in either of his parents' care. The court had confidence that the welfare authorities in the Republic of Ireland would take steps to safeguard the child should it be necessary to do so. In the circumstances, a return order had to be made. Judgment, 03/07/2021, free
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