- The father had applied without notice to the mother for an order making their four-year-old son a ward of court, a prohibited steps order preventing the mother from withdrawing funds held in an account earmarked to pay the son's school fees, and a port alert order. Both parents lived in London, and the child lived with the father. Mostyn J's decision was to dismiss the father’s application for a port alert order. Firstly, because it should have been made to the Family Court and not to the High Court, and secondly, because he was not satisfied that there was a real and imminent risk that the mother was going to remove the son from the jurisdiction and return with him to Slovakia or the Czech Republic. Her only contact with the child was supervised, and Mostyn J thought it unlikely that she would be able to abduct the child in such circumstances. He also considered whether the Family Court had the power to issue a freestanding port alert order, and decided that it did. He provided guidance on the correct method of applying for a freestanding port alert order, and supplied a pro forma port alert order modified for use in the Family Court. Judgment, 02/07/2021, free
- The mother appealed from an order, following the father's application under the 1980 Hague Convention, for the parties' children, aged 4 and 2, to be returned to the USA. The judge had decided that the mother had not established either of the grounds relied on by her in opposition to the application: acquiescence and Article 13(b). The situation was complicated by the mother having said that she would not return to the USA with the children. The mother appealed on three grounds: the judge's approach as to Article 13(b); the judge's approach to the issue of acquiescence; and whether her other, 14-year-old child's voice was adequately reflected in the proceedings. In Moylan LJ's view, the latter added nothing of substance to the appeal, and the judge had been entitled to conclude that the father's conduct did not evidence an intention to acquiesce. However, the judge had not been entitled to reject the mother's allegations regarding the father, and had not analysed whether the allegations, if true, would potentially create a grave risk within the scope of Article 13(b) nor how any such risk might be addressed. Moylan LJ's view was that returning the children to the USA in the absence of their mother would create a grave risk of their being exposed to physical or psychological harm or of them otherwise being placed in an intolerable situation. Baker and Arnold LJJ agreed. The appeal was allowed and the application for a return order was dismissed. Judgment, 01/07/2021, free
- The marriage had broken down one year before and the parents were now living separately, both in Dubai. The court was concerned with the arrangements for two children, aged 6 and 3, in relation to the time they would spend between their parents' homes. Both parents accepted that court intervention was necessary because of their inability to agree a way forward. The children had shown increasing signs of distress. Roberts J found that the children had indeed suffered emotional harm through this period, and the older child's insecurities had not been properly addressed in the very early days of the breakdown of the parents' relationship. The father accepted that he had exposed the children to far too much of the parental conflict. However, his actions had not been sufficient to provide an evidential basis for the restrictions on his parental responsibility which the mother sought. Roberts J ordered a three-stage set of arrangements, which at first involved two overnight stays on alternate weeks, and then eventually four overnight stays per fortnight. Judgment, 26/05/2021, free
- The two sisters were aged 7 and 2. Their father had parental responsibility for them both, being named on their birth certificates, but was currently serving a term of life imprisonment for the attempted murder of their mother. The mother applied for termination of his parental responsibility, and to change their surname. HHJ Vincent noted that orders depriving a father of his parental responsibility and replacing his surname for another should only be made by a court where there was a solid and secure evidential and factual basis for doing so, and where the orders were in the best interests of the children concerned. In this case, there was a risk of harm to the girls if he were to exercise his parental responsibility for them, and he continued to be assessed as a high risk to the mother and the children. To permit the mother to change their names would be consistent with their welfare and enable her to act protectively. Thus the mother succeeded on both her applications. The father would be discharged of his parental responsibility for both girls and the mother would be permitted to change their names. Judgment, 26/05/2021, free
- The parents had separated in 2015, and the girls were now aged 13 and 11. The father applied for variation of the shared-care child arrangements order, following local authority concerns as to the mother's alcohol use and mental health. The mother sought a return to the previous shared care arrangement, which had been suspended throughout the proceedings. HHJ Vincent noted that the children’s welfare was the paramount consideration. The mother did not recognise the concerns about her parenting, and to the extent she accepted that she had an issue with alcohol, she denied it would have impacted upon the children. It was evident that she was unable to regulate her emotions. Having regard to all the evidence he had heard and read, and considering all the factors on the welfare checklist at section 1(3) of the Children Act 1989, HHJ Vincent was satisfied that the girls’ welfare needs were met by a continuation of the current arrangements. He ordered that the children would live with their father, and that any direct contact should be supervised by a third party. Judgment, 26/05/2021, free
- The father applied for the child's summary return to Australia. The mother, who was deaf and had a cochlear implant due for replacement, relied on a defence under Article 13(b) of the 1980 Hague Convention. Submissions on her behalf focused on the father's criminal convictions, for which he had been placed on the sex offenders register. Hayden J noted that it was an established precept of child safeguarding that where, as here, a convicted offender failed to acknowledge guilt and/or sought to minimise his behaviour, such actions were to be generally regarded as indicative of continuing risk. The mother made allegations of coercive and controlling behaviour against him, but appeared to have a very poor grasp of the risk that he could present to her children. Hayden J was comfortably satisfied that the evidence established a grave risk of serious harm to a child. In Australia, her isolation, vulnerability, challenges with communication and incomplete understanding of the risk the father represented would all leave her exposed to the manipulative and abusive behaviour of which he was accused. The defence provided by Article 13(b) was established and the application was dismissed. Judgment, 26/05/2021, free
- HHJ Kloss had to decide whether the Covid-19 pandemic and its impact upon the value of a key asset was a sufficient ground to set aside a financial remedy consent order. The husband had not paid the first lump sum of £750,000, and had at first applied to stay the lump sum provision for one year with a review in nine months, due to the impact of Covid-19 upon his ability to raise the lump sums. He had then applied to have it set aside entirely. HHJ Kloss set aside the stay application as having been superseded. He then dismissed the husband’s application to set aside the order. In principle, the pandemic was a potential Barder event, opening the door to set aside, but the risk of the event had been reasonably foreseeable to the husband when the agreement had been made in March 2020, and an overall assessment of the impact of the pandemic and more general factors led the court to exercise its discretion against the husband. The Barder threshold was deliberately set very high, and this change was not fundamental enough to meet it. Among other reasons, the company remained viable, and was projected to bounce back significantly. The husband had chosen for himself the path of greatest personal risk, which was projected to lead to the greatest personal reward. Although he would not have made the same deal had he known what lay ahead, sympathy and fairness did not form part of the test to be applied. The case would be listed for further applications and directions to be considered. Judgment, 26/05/2021, free
- 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
- The question for the court was under what circumstances a long-term nominal spousal maintenance order should be converted into a substantive order, and whether this could happen as a consequence of the financial difficulties arising from the lockdown. Such orders had been made most often in London and the south-east, where the children lived primarily with a parent who was able to support himself or herself, as in this case, but where the children were still young and things could change dramatically during their minority. The youngest child in this case was now 14. The former wife had applied for the court to convert a nominal order made in 2012 into a substantive order, as a short-term measure until she was once again self-sufficient. She argued that this should be treated as an ordinary variation application. After discussing the potential incompatibility of such nominal orders with clean break legislative changes, DDJ David Hodson decided that it was not appropriate to convert the nominal order into a substantive order, and dismissed the application. A nominal order was only to be converted if there had been a significant change in circumstances. Losing a job due to the pandemic could not, he said, be ascribed to relationship generated disadvantage. Asked to dismiss the spousal maintenance order altogether, he declined to do so but said he would be surprised if circumstances ever justified bringing it back to court. Judgment, 14/05/2021, 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
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