- A judgment on the trial of a claim under CPR Part 8 for declaratory relief as to the beneficial interests in a large country house in Oxfordshire. The couple, in their 50s and unmarried at the time, had caused the Property to be conveyed into their joint names with no declaration of trust. The male partner (and claimant) had paid the whole of the purchase price. The couple had split up soon afterwards, but the female partner had continued to use the property from 2009 until 2018. Deputy Master Hansen concluded that some of the male partner's evidence was unreliable, certain discussions having been misremembered. Nothing he had done or said at the material time could or would have caused his partner to think that he intended anything other than that they would own the property jointly at law and in equity, intending that, on the death of one of them, the surviving joint tenant would become the sole owner by right of survivorship. The parties' post-acquisition conduct was not such as to warrant any inference or imputation varying the beneficial interests. However, Deputy Master Hansen considered it just for the female partner to pay an occupation rent of £59,958 to the claimant, due to the times at which she had excluded him and his new partner from the property for her exclusive use. The claimant was ordered to pay 90% of the defendant's costs of the action, to be subject to detailed assessment if not agreed. Judgment, 18/03/2021, free
- The father applied for the summary return of his children (aged 3 and 1) to Australia, pursuant to the 1980 Hague Convention. The father was a professional sportsman, born in Australia. The mother was born in England. Both children were born in Australia and had dual British and Australian citizenship. The mother brought them to England in February 2020, with the father's agreement, but did not return. The primary defence of the mother was that there was no relevant wrongful act of retention, because the original due date of return was frustrated by the Covid-19 pandemic, and no alternative due date ever substituted. Mostyn J described this as a novel argument, but "with some hesitation" decided that it should succeed. A wrongful act of retention, whether before or after the due date for return, required there to be a clearly agreed due date of return. By August 2020, when the father made it clear to the mother that he wanted the children to return to Australia, the children were habitually resident in England, and thus the Hague Convention could not be invoked. Even if there had been an operative retention by the mother, the husband's messages were all consistent with his acquiescing with her decision, and thus Mostyn J would have declined to order the return of the children to Australia. The father's application was dismissed. Judgment, 06/03/2021, 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
- The father appealed against a decision to set aside a return order and to dismiss his application for summary return. The father was an Italian national, the mother a British national, and shortly after their son was born in England they moved to Italy. In 2019, when the child was 10, the mother brought him to England and they did not return. The judge had found that the evidence of the child's wishes and feelings amounted to "a fundamental change of circumstances" and "a fundamental change to the basis on which the previous order was made". In Hayden J's view, although the judge had clearly identified a significant and sustained degree of pressure placed on the child by his mother, he did not seem to have considered how this would have compromised the authenticity of the child's expressed views. The test as to whether there had been a 'fundamental change of circumstances' had to be set high. The mother's application was a clear example of an attempt to reargue a case which had already been comprehensively determined. Asplin and Moylan LJJ agreed. The appeal would be allowed and an order made for the child's return to Italy. The child would not be added as a party to proceedings; to do so would only serve to heighten the conflict that he had struggled to avoid. Judgment, 04/03/2021, free
- An application by the father for the summary return of his son to Italy, pursuant to the Hague Convention 1980 and, to the extent that it remained part of UK domestic law, Brussels IIa. The parents were Italian nationals who were born, married and lived in South Africa. Following a move to Italy, the couple separated and in October 2019 the mother brought the child to England, where he now lived with her at an undisclosed location. The father had reported the abduction to the Italian police. Mr David Lock QC, sitting as a deputy High Court judge, came to the conclusion that there was a strong possibility that the Mother had set out in a deliberate and calculated way to mislead the court, as to the father's consent to her bringing the child to England, and as to her ability to speak Italian. He declined to exercise the discretion to suspend the return order, thinking it better for the mother to engage with the Italian authorities investigating the abduction sooner rather than later. He made an order to require the return of the child forthwith to Italy. Judgment, 04/03/2021, free
- The husband appealed from the final financial remedy order. The issue at the heart of the appeal was whether the judge's determination of the £3.4m award he made in favour of the wife was flawed because it was based in part on a flawed figure for the parties' capital resources advanced on behalf of the wife. Moylan LJ came to the conclusion that the judge's decision was indeed flawed for that reason and had to be set aside. The figures that each side had put forward for the judge had been similarly flawed in their approach. He considered whether the Court of Appeal was able to substitute its own decision but he concluded that it could not. Popplewell and Phillips LJJ agreed, and the case was remitted to the same judge for rehearing. Judgment, 03/03/2021, free
- The mother contended that her three children, aged 14, 10 and 8, had been wrongfully retained in England. She applied, pursuant to the Hague Convention 1980, for their summary return to Poland and, pursuant to Brussels IIa, for the recognition and enforcement of an order made by the Polish District Court. The father opposed the return. The parents were Polish nationals, and the children had been born in the USA, before moving to Poland. The parents had separated after the father moved to England. During a holiday in England the children had complained of poor treatment by the mother, and the father had not returned them. Mr A. Verdan QC (sitting as a deputy High Court judge) found that the children's habitual residence had remained in Poland, but that the exception under Article 13(b) had been made out, the children being at risk of physical ill-treatment and unacceptable chastisement by the mother. He would not exercise his discretion to return the children to Poland pursuant to the Hague application. Considering the second application, he noted that he had not been made aware of any authority suggesting that the court, having refused a return via the Hague Convention, should at the same hearing enforce a return via Brussels IIa, and he declined to do so. He encouraged the parties to engage in mediation. Judgment, 03/03/2021, free
- The wife appealed from an order that had reduced the lump sum awarded to the husband from £814,000 to £733,650 (£630,000 and £550,000 net after payment of capital gains tax) and reduced the husband's pension share from 48.6% to 34%. The wife had retained 73% of the non-pension assets plus the balance of her pensions. Both the district judge and the judge had considered that a significant departure from an equal sharing of the matrimonial assets was justified. Following receipt of the judge's judgment both the husband and the wife had sent what were said to be requests for clarification. The judge concluded that these requests were in fact an impermissible "critique of the judgment and an attempt at further argument". In Moylan LJ's view, the judge had clearly decided that it was too late for further evidence to be adduced, and this decision was one which had been open to him and it had not been shown to be wrong. Parties should not expect a judge to permit further evidence to be adduced at such a late stage of the proceedings, particularly following an appeal. Lewison and Nugee LJ agreed, and the wife's appeal was dismissed. Judgment, 01/02/2021, free
- The mother had unilaterally taken the children from Rome in July 2020. The children had not seen their father since. One child was born in England, the other in Italy after the family moved there in 2011. If not for the abduction, the children would have been interviewed by Italian social services in October 2020, ahead of the father's appeal regarding child arrangements being heard in November 2020. The Appeal Court of Rome granted custody to the father, describing the abduction of the children as "seriously harmful to their balanced emotional and physical development". The father had also commenced proceedings here under the 1980 Hague Convention in September 2020. It was not disputed that the children had been habitually resident in Italy at the time of removal. Mostyn J asked himself how the Appeal Court of Rome's interim custody order should be treated when considering the discretion not to return under article 13. He judged that "unless it could be shown that the order was made on a false basis (whether by virtue of fraud, mistake or a major unexpected change of circumstances), or that it was obtained by procedurally unfair means, then the exercise of discretion should almost invariably lead to the responsive order being given effect". The mother had not demonstrated that the children faced a grave risk so as to provide a defence under article 13(b), and although the children strongly objected to being returned to their father, in Mostyn J's view they had been subjected to indoctrination and manipulation, and thus he did not place much weight on their objections. The discretion against return would not be exercised, and the children had to be returned to Italy no later than Sunday, 14 February 2021. Judgment, 25/01/2021, free
- The judge had allowed the husband's appeal from a maintenance pending suit order, principally on the basis that the the deputy district judge had "failed to apply the law appropriately" and had not undertaken any "critical analysis of the wife's needs". The wife now appealed against that decision. In Moylan LJ's view, the deputy district judge had undertaken a sufficient analysis of the relevant factors to support her decision, including the wife's listed needs and likely income, and the husband's budget. She had been entitled to include the amount sought for school fees, and had reached a fair decision as to what level of maintenance would be reasonable. In those circumstances, there was no basis on which the judge could properly interfere with the decision. Asplin and Macur LJJ agreed. The appeal would be allowed, with the judge's order being set aside, including the costs order. The maintenance pending suit order made by the deputy district judge would be restored, save for a paragraph dealing with the mortgage. Judgment, 22/01/2021, free
Family Law Hub