- Everything (1370)
- Model letter (0)
- Practice note (17)
- Precedent (2)
- Uploads (0)
- Tools (0)
- Article (6)
- Case note (335)
- News (225)
- Polls (0)
- CPD course (0)
- CPD diploma (0)
- Training note (0)
- Webinar (48)
- Downloads (0)
- Form (47)
- Judgment (551)
- Practice direction (7)
- Rule (0)
- SI (0)
- Statute (0)
- International regs (0)
- A final child arrangements order had been made, and the child was to live with his mother. The father breached the order, abducting the child for seven days. He told the court that he had been planning the abduction ever since the order was made. He had borrowed a car and a flat from a friend in preparation. Arbuthnot J found the level of culpability to be high, and the level of harm to be medium. The child had found the abduction traumatic. Finding him had required much press involvement, and it was difficult to anticipate what the effect of those stories would be on the child's development. There were several aggravating factors. Arbuthnot J committed the father to prison for four months, to be released after two months, subject to recall and probation. Judgment, 13/10/2021, free
- An application was brought for return orders from Saudi Arabia under the inherent jurisdiction of the High Court. The central factual issue was the question of abandonment, and the alleged stranding of the mother and the children in Saudi Arabia. The mother's case was that she wished to return to the United Kingdom but was unable to, and that the father had engineered this situation. The father said that the mother had settled in Saudi Arabia. She also made allegations of domestic abuse, which HHJ Mark Rogers found to be credible. He also found that the husband's departure from Saudi Arabia, taking the family's passports, was a response to the family breakdown and his desire to isolate his wife and weaken her position. She was stranded in Saudi Arabia, against her will, in circumstances brought about in part, if not in whole, by the father. The children were not in full-time education, and had no access to proper healthcare, and the judge came to the conclusion that they were not habitually resident in Saudi Arabia. The children were British and he was satisfied they required the court's protection and that subsequent matters should be dealt with here. Orders would be required to secure the return of the children to the United Kingdom. Judgment, 22/09/2021, free
- Both parents lived in England. The mother had taken their three-year-old daughter to India in March 2019, and returned without her, leaving the child with the maternal grandparents. Though born in England, the daughter was not yet a British citizen. In April 2021, the father had applied under the inherent jurisdiction for a wardship order and a return order. This hearing was to determine whether the court had jurisdiction (including the question of habitual residence), and whether the father's delay in issuing proceedings was fatal to his application. Peel J concluded that the child had continued to be habitually resident in England and Wales and had been so at the date of the father's application. He noted that the mother had offered very little evidence about the child's situation in India. As to delay, that would be a factor in considering whether wardship and return orders should be made, but it did not entitle the court to strike out the claim unless the prospects of success had been so hopeless as to justify the exercise of case management powers in such a profoundly draconian way. Judgment, 18/09/2021, free
- The former wife appealed against an order consequent upon a financial remedies hearing which had occupied several days in November and December 2020, following which the judge had circulated a draft reserved judgment which itself generated a request for clarification, further email submissions and ultimately a slightly revised approved judgment. The three live grounds of appeal were that the judge had been wrong to make no provision for the wife’s liabilities, had failed to step back and cross-check his award to ensure fairness, and had wrongly imposed a s 28(1A) bar. The latter ground of appeal was dismissed: the actual order made was within the available discretionary outcomes, and justifiable on the evidence. However, in the view of HHJ Mark Rogers, the practical impact of the judge’s exclusion of the costs liability had been to reduce the capital available to the wife for housing by about 37%, contrary to his own assessment of her housing need. The judge’s approach to the calculation of the correct needs-based lump sum had been wrong in law. As to the cross-check, failure to carry one out was not strictly capable of being a ground of appeal, as it was the ultimate decision that was under review, but, in the view of HHJ Mark Rogers, the judge’s failure to do so was clear and illustrated his failure to engage with the true discretionary process. The appeal was allowed and the lump sum order of £475,000 was set aside. The matter was not remitted; HHJ Mark Rogers assessed the appropriate lump sum award at £600,000. He directed that the husband should pay the wife’s costs of the appeal, the quantum of which was determined in a summary assessment, at the joint request of the parties. Judgment, 31/08/2021, free
- Both parents were British citizens with Overseas Citizens of India status, and both had been living in India. One day before the first court hearing in child welfare proceedings brought by the father, the mother had flown their five-year-old son to England. The father now applied under the court's inherent jurisdiction for the summary return of their son to India, and asserted that this was a "hot pursuit" case. The application was opposed by the mother, who alleged domestic abuse and coercive behaviour. Cobb J reached the clear conclusion that it was in the boy's best interests to be returned to India forthwith, and for his future to be determined in the courts there. He was habitually resident in India, while his situation in England was at best transitory and fragile; for example, he was not attending school here. In Cobb J's judgement, the mother's clandestine and unilateral action in bringing the boy to England had been primarily prompted by her wish to avoid engaging in family court proceedings in India. The allegations of domestic abuse had been laid before the Indian court in the child welfare proceedings there. In his view, the risk of harm to the mother from the alleged abuse could be appropriately mitigated by the protective measures offered by the father, the fact that she could return to live with her parents, and the availability in India of civil law process (the equivalent of non-molestation proceedings). He was satisfied that the Indian court was appropriately seised of child welfare proceedings regarding the child. Judgment, 31/08/2021, free
- The mother appealed against an order dismissing her applications under the inherent jurisdiction in respect of her children who were residing with their father in Libya. She submitted that the judge had wrongly interpreted and applied the rules in relation to the setting aside of an order under the inherent jurisdiction and in particular had failed to consider whether the children's welfare required the non-return order to be set aside. She also submitted that the judge had given undue weight to the likelihood that an order would not be directly and reciprocally enforced in Libya. For the father it was submitted that the judge had correctly identified the applicable law and made correct findings, and that the judge's characterisation of the mother's litigation conduct as Henderson abuse was a good example of judicial vigilance against repeat applications. In Baker LJ's judgment, to import Henderson abuse into children's proceedings was neither necessary nor appropriate: for example, where a child's welfare was in issue, a second application to the court would rarely be capable of being simply dismissed as a collateral attack on the first decision. He also disagreed as to the relevance of whether the order would be enforceable in Libya: the court was required to assess the welfare of the children, not the enforceability of its order. He also disagreed with the judge's two primary reasons for dismissing the mother's application. He concluded that the judge's approach to the set aside application had been flawed and that the mother's appeal against his decision to dismiss the application had to be allowed. Stuart-Smith LJ and Moylan LJ agreed. Judgment, 24/08/2021, free
- The former husband appealed against an order committing him to prison for six weeks unless he paid the sum of £50,000 to his former wife, as previously ordered by Mostyn J, by way of maintenance. The order was made under s 5 of the Debtors Act 1869 and the judgment summons procedure in Order 28 of the County Court Rules 1984. Underhill LJ noted that a judgment debtor can only be committed if the creditor proves to the criminal standard that the debtor had the means to pay the sum in question at the relevant date, but had refused or neglected to do so. The former husband appealed on the ground that the judge could not have been satisfied beyond all reasonable doubt that he had the sum in question. Underhill LJ did not accept that submission. There was no rule that the only way in which the judge could be sure of that point was by explicit evidence given at the time of the committal hearing. What was required would depend on all the circumstances of the case, including such inferences as it was proper for the judge to draw from the evidence that he did hear, which might include an inference that unless there were some reason to believe to the contrary the original default was continuing. In the circumstances of the present case, the judge had been fully entitled to conclude to the criminal standard that the money was still outstanding. Nugee LJ agreed. The appeal had been lodged seven days out of time; the extension was allowed, and the appeal dismissed on the merits. Judgment, 23/08/2021, free
- The father sought the summary return of his two sons, aged 6 and 4, to the Republic of Zambia, invoking the court's inherent jurisdiction. The children had lived with their mother in England since August 2020. The mother resisted the application, submitting that the children had acquired a new habitual residence in this jurisdiction, and that the court thus had jurisdiction to conduct a full welfare enquiry under the Children Act 1986. Roberts J decided that the children were habitually resident in England, and had been at the time of the father's application. It was of particular significance that the home in which they now lived had been specifically purchased as a family home, with the specific consent of the father, before his change of heart about moving. There was no reasonable basis on which to conclude that a return to Zambia was in the children's best interests, given, for example, the father's precarious financial position, and the mother's previous unhappiness there. The cumulative effect of a return in the circumstances was likely to be wholly inimical to the interests of the children, who were now settled in their homes and schools in this jurisdiction. Roberts J thus refused the father's application for summary return. Judgment, 23/08/2021, free
- The mother applied for a costs order following the dismissal of the father's applications for return orders under the Hague Convention 1980 or the inherent jurisdiction in respect of their two daughters, aged 11 and 12. Poole J concluded that, although the father's conduct could not, in general, be characterised as unreasonable or reprehensible, he had been guilty of unreasonable conduct in making a wholly unnecessary application for a location order, and doing so without notice. Still, the costs order should be reasonable and proportionate, and the direct costs to the mother of that application would have been a relatively small part of her total costs, which came to £27,316.10 inclusive of VAT. Poole J ordered the father to pay her costs in the summarily assessed sum of £4,000 plus VAT of £800, a total of £4,800. This was a reasonable sum having regard to all the circumstances including the financial circumstances of the parties and their conduct in relation to the dispute. Judgment, 10/08/2021, free
- Both parents were British citizens, the mother living in London, the father in Switzerland. The mother applied for an Hadkinson order, for the father's two conjoined appeals to be dismissed unless he paid outstanding costs orders and other amounts previously ordered by the court. The father frankly admitted the non-payment of the amounts ordered, had not sought a stay or variation, and had not undertaken to pay. He was clearly in contempt, and had sufficient income to make payment. In determining whether to make a Hadkinson order, Poole J bore in mind that it was a case management order of the last resort, and that it had to be proportionate to the problem identified. He ordered that the father should make a payment of £88,796.37 previously ordered to be paid, together with another sum of £8,767.80 previously ordered to be paid, the total payable by a given date to the mother's current solicitors, to be held on account pending the resolution of an appeal. In default of payment, the father's two appeals would be dismissed. Judgment, 09/08/2021, free