Family

Imerman v Imerman Fam Div 13.01.2010

Wed, 24 Feb 2010 22:31:46 GMT

A further judgment in the big money AR matter (previous judgment given on 11.12.2009) dealing with drafting of the order and the outstanding issues of privilege, costs and permission to appeal. The wife was ordered to pay the Husband’s costs on an indemnity basis due to her conduct in irregularly obtaining the Husband’s financial information and to discourage others from following her example. The parties’ applications for permission to appeal were rejected and the Husband’s application for a stay of the order was rejected.

Dr A & Ors v Ward & Anor Fam Div 08.01.2010

Wed, 24 Feb 2010 22:30:00 GMT

Munby J (as he then was) gave guidance on the balance to be struck regarding the disclosure of names and details of experts and professionals in Care Proceedings Allowed the application of parents whose child had not been removed as a result of Care Proceedings to “disapply” sections of s.12 (1) (a) Administration of Justice Act 1960. The court also disallowed the applications of the treating physicians and expert witnesses and social workers in the matter for anonymity. The parents had however signed an agreement with the Healthcare trust regarding the treating physicians not to publish information which the court held to be valid.

Re S (a child) Fam Div 04.01.2010

Wed, 24 Feb 2010 22:22:52 GMT

The court made an order for a child’s residence to be transferred from the Mother to the Father. Following the breakdown of direct contact between the Father and child in 2006 the court had ‘left no stone unturned’ to reinstate direct contact but had not succeeded. Notably the child’s guardian was against the transfer however the court found her to be basing this on her own assessment of the Mother rather than accepting the court’s assessment in previous judgments.

Re M-W (A Child) CA 21.01.2010

Wed, 24 Feb 2010 22:21:24 GMT

The CA allowed gave permission to appeal and allowed the appeal of a LA against a finding that the Threshold Criteria had not been met. The CA held that the Judge had failed to give reasons for implicitly rejecting the evidence of two experts in relation to the Mother's mental health. The matter was remitted for re-hearing before a different Judge.

S-C v H-C & Anors CA 28.01.2010

Wed, 24 Feb 2010 22:19:37 GMT

The CA allowed an appeal against a committal order. There was no penal notice on the order which was said to have been breached. The CA observed that the formalities of committal proceedings should be strictly observed, particularly so in a case where the order itself was unusual and the parties were not English and one was in person. The CA also commented on the undesirability of making orders which would prevent a Turkish court from having all the information available to the English court.

De L v H Fam Div (03 December 2009)

Thu, 04 Feb 2010 15:36:14 GMT

The court in Hague Convention proceedings declined to order the return of a 13 year old child to Portugal despite a finding of wrongful retention on the grounds of the child's objections to return.

Imerman v Imerman Fam Div (11 December 2009)

Thu, 04 Feb 2010 15:34:48 GMT

In the opening round of a 'big money' ancillary relief case the court in a lengthy judgment considered the case law in relation to Hildebrand documents. It was ordered that the Wife's solicitors deliver up to the husband's solicitors seven files of documents obtained by the Wife's brother from the Husband's computer for them to identify and remove those pages said to contain privileged material. The Husband solicitors were to preserve and hold any privileged material pending the determination of the Wife's ancillary relief application and to return the remainder of the files to the Wife's solicitors.

A Local Authority v M & M & Ors Fam Div (07 December 2009)

Thu, 04 Feb 2010 15:27:07 GMT

The Court allowed the application of a Mother within Care proceedings that a Father (who had been kept unaware of care proceedings due to the high risk he posed to the Mother and children) be discharged from the proceedings and have no involvement or knowledge of them. Submissions were heard from an advocate to the court provided via the Attorney General. The court considered the competing rights of the Mother, Father and children and concluded that on the facts of the case the exclusion of the Father from proceedings was justified, although this was to be kept under review.

W v W Fam Div (10 December 2009)

Thu, 04 Feb 2010 15:25:38 GMT

The court allowed the application of an older sibling ('C') to be joined to Hague Convention proceedings involving her younger brother. There were issues of domestic violence within the case and C's case was that her Mother had been unable to protect herself and her brother from the father's behaviour. It was held that she should be joined under FPR Rule 6.5(e) "any other person who appears to the court to have a sufficient interest in the welfare of the child".

Smith v Smith CA (2 December 2009)

Thu, 04 Feb 2010 15:21:08 GMT

The CA dismissed a Wife's appeal against an order under TOLATA that the FMH be sold notwithstanding that decree nisi had yet not been pronounced and the divorce was contested. That CA noted that that when confronted with an application under TOLATA between separated spouses, the court should embark upon the discretionary exercise by asking itself whether the issue raised by the application can reasonably be left to be resolved within an application for ancillary relief following divorce. However, it was the wife's own actions in defending the divorce which were delaying the resolution of matters to the extent that granting the Husband's TOLATA application was not inappropriate.

O M (Children) V Local Authority & Ors CA (21 December 2009)

Thu, 04 Feb 2010 15:19:29 GMT

The CA dismissed a Mother's appeal from a trial judge's refusal to allow her to instruct further experts in care proceedings. In the unusual factual matrix of the case the CA upheld the Judge's decision that a significant amount of medical evidence had been gathered by the treating physician in an investigative capacity prior to the involvement of the local authority and a wide variety of doctors of all relevant specialties had been involved. The CA held it was not enough for the mother to assert the absence of so called external, non-clinical expert opinion. She would need to show that such an opinion was properly called for and could make a contribution to the judge's task.

I (A Child) [2009] UKSC 10

Tue, 02 Feb 2010 22:55:22 GMT

Supreme Court Press Summary

BACKGROUND TO THE APPEAL
This appeal concerns whether an English court has jurisdiction to determine the future level of contact between a child and his mother where the child does not habitually reside in an EU Member State. Under article 12.3 of Council Regulation (EC) No 2201/2003 (“Brussels II Revised”) parties are able to opt in to the jurisdiction of an EU court which would not otherwise have jurisdiction to determine a child’s future. This applies where:
(a) the child has a substantial connection with that Member State; and
(b) the jurisdiction of the courts “has been expressly accepted or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised”, and the exercise of jurisdiction is in the best interests of the child.

In this case the child had been resident in Pakistan since 2004, although both he and his divorced parents are British citizens and his parents live here. Both the High Court and the Court of Appeal held that an English court had no jurisdiction. The mother appealed. The Supreme Court had two issues to decide: firstly, whether article 12 extended to cases where a child lived in a non-EU member state; and secondly, if it did, whether the parties in this case had accepted jurisdiction in accordancewith the criteria set out in article 12.3(b).

JUDGMENT
The Supreme Court unanimously allows the appeal and declares that the courts of England and Wales have jurisdiction in this case. The Supreme Court holds that article 12 of Brussels II Revised applies to a child who is lawfully resident outside the European Union. In this case it was clear that the criteria of article 12.3 were satisfied and therefore that the parties had opted in to this jurisdiction. Lady Hale gave the leading judgment. There was a difference of opinion between the Justices on the precise meaning of article 12.3(b) but it was not necessary to decide this issue in order to decide the case.(Paragraphs [17], [35], [45])

REASONS FOR THE JUDGMENT

(1) On the first issue, if parents opt in to the jurisdiction of an EU court under article 12.3, that court can exercise jurisdiction even if the child does not lawfully reside within the territory of a an EU Member State. Lady Hale reached this conclusion using ordinary principles of construction, concluding that nothing in article 12 limits jurisdiction to children who reside in an EU Member State. This was confirmed by the conclusion that the term “third State” in other parts of the Regulation (notably articles 12.4 and 61) means a state outside the EU. This is supported by the Practice Guide to the Regulation, as well as other sources emanating from the EU. [17]-[20] The Pakistan Protocol (referred to by the Court of Appeal), in which the judiciaries of Pakistan and England agreed it will generally be best for jurisdiction to be exercised in the country of the child’s habitual residence, was not directly applicable. In any event such an agreement between judges could not affect the proper interpretation of Brussels II Revised. [41]-[44]

(2) On the second issue, the criteria under article 12.3 were clearly satisfied in this case. Firstly, under 12.3(a), the substantial connection was satisfied by the fact the child’s parents are habitually resident in the UK and they and the child are British citizens. [21] Secondly, jurisdiction had been expressly and unequivocally accepted by the parties under 12.3(b), both before and after proceedings commenced. In particular, the father had accepted jurisdiction by undertaking to bring the child back here if required to do so by the Court. [33]-[34] Finally, the exercise of jurisdiction was in the best interests of the child given the presumption in article 12.4 that where a child is resident in certain non-EU States it will be in his best interests for jurisdiction to be exercised under this article. It was also relevant that the child’s guardian in the High Court considered that the child’s future was best decided in this country. [37]-[38]

(3) The Justices expressed different views on the meaning of the words in article 12.3(b) requiring express or unequivocal acceptance by all of the parties to the proceedings “at the time the court is seised”. Did this mean before, when or after the relevant proceedings were begun? It was also unclear whether these words describe the time at which parties have accepted jurisdiction or, as argued on behalf of the interveners Reunite, describe the parties whose acceptance is required. The Justices do not express a concluded view as it was not necessary to do so in order to decide this appeal. In this case all the parties had given unequivocal acceptance both before and after the proceedings had begun. The diversity of views indicates that the interpretation is not acte clair and if a case arises where the issue has to be decided it may have to be the subject of a reference to the European Court of Justice under articles 68 and 234 of the EC Treaty. (Lady Hale at paragraphs [23]-[32]; Lord Collins at [51]-[64]; Lord Kerr at [66]-[74]; Lord Clarke at [75]-[92])