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- The proceedings concerned a father's application for contact with children aged two and five. The mother opposed contact on the basis that the father had subjected her to domestic and sexual abuse. She now appealed from a case management decision to exclude evidence of coercive and controlling behaviour by the father towards a subsequent partner. Peter Jackson LJ, after considering the approach to be taken to similar fact evidence in civil and family proceedings, and the standard of proof involved, stated that the judge's decision could not stand. The necessary analysis concerning whether the disputed evidence should be admitted had not been carried out, and the judge had been mistaken (as had the district judge) about the stance that had been taken by the court previously. Hickinbottom LJ and David Richards LJ agreed. The appeal was allowed, the evidence reinstated, and the judge's order set aside. The case was reallocated to High Court level with case management and fact-finding hearings to follow. Judgment, 25/08/2020, free
- The mother appealed against the judge's refusal to set aside a return order under the 1980 Hague Convention. The mother lived in England and had dual British/Bosnian nationality. The father was a Bosnian national and had always lived in Bosnia. She had returned with the child to England in circumstances which had involved a restraining order being made against the father by the Municipal Court in Sarajevo. The judge had found that the son was habitually resident in Bosnia immediately before his removal, that there had been no consent or acquiescence to his removal, and that the Article 13(b) threshold of grave risk of harm or intolerability had not been crossed. This appeal regarded the latter finding. Moylan LJ found that the Article 13(b) risk was clearly established. The judge had been wrong to discount the effect of the father's breaches of his previous undertakings, and the judge's approach to the mother's mental health had been flawed in a number of respects. It was clear that there would be a grave risk of the son being placed in an intolerable situation if they were to return to Bosnia and be separated. Peter Jackson LJ and Carr LJ agreed. The appeal was allowed and the father's Hague Convention application was dismissed. Judgment, 11/08/2020, free
- Four applications were before the court: to commit the wife for breach of a non-molestation order; to commit her for breach of an order made on 5 October 2017; for an order for sale of the wife's house; and (from the wife) to discharge the previous orders made against her. Lieven J reached the conclusion that the wife's allegations against the husband were without foundation and that she had been pursuing a "cruel and destructive" campaign against him. However, committing her once again to prison would not achieve anything. Lieven J did make the order for sale sought. A representative of the Press Association raised a concern regarding section 1 of the Sexual Offences Amendment Act 1992. Lieven J decided that where an alleged victim's identity was already in the public domain, the prohibition in section 1 could only take effect to the degree that it had any operative effect. She anonymised the judgment to the extent of calling the parties' children J and B. Judgment, 08/08/2020, free
- The father applied under the inherent jurisdiction of the High Court for an order for the summary return of four children, aged 1, 9, 13 and 14, to the jurisdiction of Pakistan. The mother opposed the application. Both parents and all four children were Pakistani nationals, but the three oldest children had UK passports. The mother alleged domestic abuse, as did the three oldest children. The father alleged a scheme to marry the children off for immigration purposes. MacDonald J found that the father had at times been an arrogant witness, pre-occupied with the impact of the case on his reputation, and dishonest in his evidence. He found that the mother had also been "economical with the truth". The children had been habitually resident in Pakistan at the time of their removal, but a welfare case against their summary return was made out. Returning them, against their wishes, would not be in their best interests. The father's application was dismissed, and a stay on the mother's Children Act 1989 proceedings was lifted. Judgment, 24/07/2020, free
- Both parents and the daughter were Brazilian nationals. The mother applied under the Child Abduction and Custody Act 1985 for a summary return order pursuant to the provisions of the 1980 Hague Convention. The child had been habitually resident in Brazil and had been wrongfully retained in England following a holiday. The father resisted the application on Article 13(b) grounds, and on the ground that the child objected to returning for the purposes of Article 13. The maternal grandparents and a maternal aunt had alleged violent conduct towards the child on the part of the mother, and this had been confirmed by the child in conversation with the the Cafcass Officer. MacDonald J was satisfied that there was a grave risk that returning the daughter to Brazil would expose her to harm or an intolerable situation for the purposes of Article 13(b). It was clear that the daughter had settled well in England and was having her physical and emotional needs met here. He declined to make a summary return order and dismissed the mother's application. He emphasised that his decision was reached upon the very unusual facts of this case, i.e. that the holiday had provided the opportunity for the child to alert her other parent and the authorities to the risks she faced in Brazil. This was not a paradigm case of wrongful retention following a holiday. Judgment, 21/07/2020, free
- This was an appeal against a judge's refusal to discharge a non-molestation order from 2016 granted under section 42 of the Family Law Act 1996, and her substitution of an order which would have continued indefinitely, having stated, "I cannot see that it is going to inconvenience the husband in any way for it to continue. It serves as protection to the wife." Cobb J took the view that it was manifestly wrong for the judge to dispose of the application in this way. She had "failed to embark on anything approaching an adequate analysis of whether this case did justify the making of an open-ended order", and, if she had, the proper outcome would have been the discharge of the order. However, given that the wife spoke of ongoing intimidation in her oral submissions at the appeal, Cobb J directed the wife to file evidence of such, and the husband to file evidence in reply. To justify the continuation of the order, the wife would need to satisfy the court that judicial intervention was required to control the behaviour about which she complained. Cobb J therefore remitted the husband's application for discharge of the non-molestation order for re-hearing before a circuit judge. In the meantime, he substituted the judge's order with one which provided for the continuation of the non-molestation order until further order. Judgment, 12/07/2020, free
- The father applied under the Child Abduction and Custody Act 1985 for a summary return order pursuant to the provisions of the 1980 Hague Convention, in respect of two children, aged seven and four. The children were born in Belgium and had always lived there until being taken by both parents to Spain for six weeks, and then to England by the mother, in the company of a new acquaintance with multiple convictions. The move to Spain, it was suggested, had been to prevent the Belgian social care authorities from undertaking safeguarding interventions. However, the Belgian authorities informed the court that they would not be taking any active steps towards the return of the children to Belgium, and that in their view the children should be with the mother. The local authority had completed a parenting assessment of the mother which concluded that she was unable to care safely for the children. The father had been accused of domestic abuse, and though in England at the time had failed to attend assessment sessions due to drug use. The children were now in foster care, and in regular contact with the mother. MacDonald J found that the exception under Article 13(b) of the 1980 Convention was made out. There was no evidence before the court to confirm who would take custody of the children upon arrival in Belgium, what arrangements would be made for their care, or how contact with their mother would be facilitated. Ordering their return to Belgium would place them in an intolerable situation for the purposes of Article 13(b). The father's application was dismissed. Judgment, 14/06/2020, free
- The father sought a child arrangements order while the mother opposed any direct contact. The mother alleged that she was the victim of the father's domestic violence and abuse. The case had engaged special measures, with a screen being used for the mother and the father being required to provide Willans J with his questions for her in advance, though Willans J expressed "grave reservations as to the resulting quality of evidence received". The allegations of rape and abduction were not found to be proven, while both mother and father were found to have sent inappropriate communications of a harassing nature to each other. Though the mother was found to have demonstrated implacable hostility, Willans J was not persuaded that the effects of this amounted to parental alienation. Consideration would now have to be given to whether contact could be re-established. The case needed to progress, and a Children's Guardian would be appointed prior to fixing a directions appointment. Judgment, 25/05/2020, free
- Private law family proceedings between the mother and father were ongoing, regarding the welfare of their eight-year-old son. This hearing concerned the disclosure and inspection of documentation from the mother's successful asylum claim, in which she had alleged domestic and sexual abuse on the part of the father. MacDonald J ordered that several of those documents should be disclosed, with some redaction, as being relevant to its fact-finding process. The father had the right to a fair trial under Article 6 of the European Convention of Human Rights, and his Article 8 rights were also engaged. The same was true of the child's Article 6 and 8 rights. It was plainly in the child's best interests for decisions as to his welfare to be taken on a fully informed basis. This required that the court had before it all of the evidence relevant to determining that issue. However, MacDonald J stressed that this decision did not signal any change in the general approach to disclosure into family proceedings of asylum documentation. Rather, this was the application of settled legal principles to the very particular facts of this case. Judgment, 11/05/2020, free
- The father had applied for a child arrangements order that the children live with him, and a prohibited steps order preventing the mother from removing the children from the jurisdiction. It had previously been found as a fact that that the father had raped the mother, had physically assaulted her in front of the children, and had caused direct harm to one of the children. An expert witness concluded that there was no reasonable prospect of the father engaging successfully in therapy so that the risks he presented could be ameliorated. The guardian's view was that risks remained to the children, given the father's history of manipulative behaviours, and so even indirect contact was not recommended. The father claimed that this was a case of parental alienation, where the mother had sought to paint a false picture of him to the children and to the court. HHJ Vincent found there was no evidence of this. All of the mother's allegations had been found to be true. HHJ Vincent was not satisfied that the physical and emotional safety of the children and their mother could be secured before, during and after contact. They remained at risk of further domestic abuse by the father, even if contact were to be supervised. The father's applications were refused. Judgment, 28/04/2020, free