- Everything (134)
- Model letter (0)
- Practice note (1)
- Precedent (0)
- Uploads (0)
- Tools (0)
- Article (1)
- Case note (22)
- News (28)
- Polls (0)
- CPD course (0)
- CPD diploma (0)
- Training note (0)
- Webinar (2)
- Downloads (0)
- Form (2)
- Judgment (76)
- Practice direction (1)
- Rule (0)
- SI (0)
- Statute (0)
- International regs (0)
- 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
- 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 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
- 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 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 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 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
- 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
- A fact-finding exercise within an application for a child arrangements order with regard to the younger of two half-brothers. The only evidence had been from the parents. The mother had accused the father of grabbing her by the threat, punching her, and emotionally abusive and controlling behaviour. In HHJ Robin Tolson QC's view, "the individual allegations of domestic violence in the Schedule advanced by the mother against the father were insignificant in themselves", and unlikely to affect child arrangements. It was also, he said, "necessary to factor in the effects of a system which encourages allegations of domestic abuse", as well as the mother's mental health issues. On the morning of the trial, the mother had added an allegation of rape. HHJ Robin Tolson QC found that everything turned on the credibility of the witnesses, and none of the allegations were proven beyond limited admissions made by the father. Those admissions did mean, however, that the mother was "a victim of domestic abuse". He decided that a guardian should be appointed for the child, and a direction was made for the relevant local authority to undertake an investigation of both children to determine whether public law proceedings should be issued. By consent, he directed a psychiatric assessment of the mother. He also made an order for the child to spend time with his father, supervised by an independent social worker, once the international quarantine rules permitted it. Judgment, 12/04/2021, free
- The issue to determine was how much the four-year-old daughter should see of her father. The mother had alleged domestic abuse and rape. HHJ Tolson QC said it might be thought that the allegations "could have been safely consigned to the past", given that "at the time of the first allegation the mother was not even pregnant with [the daughter]" but in "the era in which we now operate … such allegations are invariably taken very seriously". He invited "both parents and everyone involved in the case to recall that all we are about is establishing, if possible, a good relationship between a little girl and her father" and the allegations of rape, which he described as "limited non-consensual sex", "would have, in my judgment, almost no implications at this stage for the future development of the relationship between the father and [the daughter]". He found that the mother's allegations of the first incident were "deeply unconvincing stuff", which meant that in his view he was "faced with a dishonest witness and it is a very long step indeed to my accepting the accuracy of her version of events" as to the second alleged incident. He reached the conclusion that the events did not happen, while the alleged "financial abuse and emotional abuse and harassment, have not been investigated during this trial" and had "no implications for the future child arrangements in the context of this case". His conclusion was that "there are no relevant findings which amount to any risk to the child or indeed any risk to the mother herself", and so the way was now clear "to develop the father's relationship with [the daughter] into one where there is a normal relationship between a separated father and his daughter". He provided for a further hearing, should agreement between the parties prove impossible. A later note stated that the parties had reached agreement and an order by consent had been made. Judgment, 06/04/2021, free