Family

V v V [2011] EWHC 3230 (Fam) (21 December 2011)

Thu, 02 Feb 2012 20:13:33 GMT

The court allowed a Husband's appeal against an ancillary relief order in which he received no Mesher charge over the Wife's property. The court considered the effect of a marriage settlement entered into by the parties prior to their marriage, the impact of Granatino and the source of the parties' assets before ordering a charge of 33% (increased to 35% to include the Husband's costs of appeal).

P & L (minors) Re, [2011] EWHC 3431 (Fam) (20 December 2011)

Thu, 02 Feb 2012 20:12:44 GMT

The court considered a non-traditional family set up where 2 siblings lived with their biological mother and her female partner and their biological Father who had PR lived with his male partner. The court had previously found the elder child in particular to be suffering harm as a result of the lack of agreement between the parties as to the role the men should play in the lives of the children. The court ordered monthly staying contact between the men and the younger child and ordered the matter to be reviewed in 12 months.

SH v MM & Anor [2011] EWHC 3314 (Fam) (13 December 2011)

Thu, 02 Feb 2012 20:11:21 GMT

The court held that a Mother's arrangement of the removal of a child to Italy in breach of a PSO which had been served on her constituted a wrongful removal and that therefore the child remained habitually resident in the UK for the purposes of Brussells II Revised. A man claiming to be the child's father had obtained the PSO notwithstanding his lack of parental responsibility or leave to apply for s.8 orders.

A v L [2011] EWHC 3150 (Fam) (7 December 2011)

Thu, 02 Feb 2012 20:10:14 GMT

Moor J allowed in part a Husband's appeal from an ancillary relief judgment in a small money case. He discharged the orders for periodical payments and for the sale of the FMH to be deferred for two years but maintained the split of 70/30 in the wife's favour of the proceeds of sale of the FMH. He described the case as one in which he sought to ' balance the unfairness'.

Q (A child) [2011] EWCA Civ 1610 (21 December 2011)

Thu, 02 Feb 2012 20:09:13 GMT

The CA upheld a judgment that a child Q's needs and welfare required adoption notwithstanding the availability of her Father to care for her in circumstances where Q, the Mother and other family members would be a significant risk of 'honour-based' violence if Q's birth became known to the maternal grandfather. Q had been placed with adopters by the time the Father came forward and there were concerns in respect of his delay and lack of understanding of Q's needs.

A and L (Children) [2011] EWCA Civ 1611 (21 December 2011)

Thu, 02 Feb 2012 20:08:26 GMT

The CA upheld a judgment following a complex fact finding hearing at the conclusion of which a Judge found that a mother had been complicit in the sexual abuse of her children. The Mother had sought to appeal based on the Judge's lack of reasoning however the CA found that his judgment was sufficiently reasoned.

H v S [2011] EWHC B23 (Fam) (18 November 2011)

Thu, 22 Dec 2011 16:47:43 GMT

The Court determined the question of whether for the purposes of English divorcer and connected proceedings a Talaq pronounced by the respondent Husband in Jeddah in Saudi Arabia and placed by Deed of confirmation before the Sharia Court is entitled to be afforded recognition in this jurisdiction. The court answered the question in the affirmative.

AJ v JJ & Ors [2011] EWCA Civ 1448 (02 December 2011)

Thu, 22 Dec 2011 16:46:57 GMT

The CA allowed the appeal of three children in respect of a order for their return under the provisions of the Hague Convention to Poland. The matter was remitted for re-hearing for the Judge in the light of the children's objections to return to exercise discretion as to whether this should nevertheless be ordered.

S v C [2011] EWCA Civ 1385 (02 December 2011)

Thu, 22 Dec 2011 16:45:34 GMT

The CA allowed a Father's appeal against the refusal the court below to order summary return of his child to Australia. The CA held that the court below had not directed itself correctly as to the impact of the Supreme COurt judgment in Re E.The CA criticised utilisation of paragraph 36 of Re E as directions in Hague Convention cases.

SA, R (on the application of) v Kent County Council [2011] EWCA Civ 1303 (10 November 2011)

Thu, 22 Dec 2011 16:44:35 GMT

In an important case in respect of family placements during the course of LA involvement the CA upheld the judgment of Black J that a child placed with her grandmother but with no public law order was a 'looked after child' and that therefore the grandmother was entitled to a fostering allowance from the relevant LA.

Lukanda v Birungi [2011] EWCA Civ 1520 (17 November 2011)

Thu, 22 Dec 2011 16:42:10 GMT

The CA allowed an appeal in respect of nullity proceedings. A significant disputed element in the hearing below was a certificate which puported to be a Ugandan marriage certificate. The CA held that given that this was on the face of it authenticated by various Ugandan authorities it should have been presumed to be valid and the burden fall on the party seeking to show it was not valid. The matter was remitted for re-hearing as these issues had not been considered below.

G v M [2011] EWHC 2651 (Fam) 17.10.2011

Thu, 01 Dec 2011 23:00:00 GMT

The Court granted permission for an Applicant to issue a Petition for Nullity without having to file a marriage certificate in the context of an Islamic marriage. No evidence was heard and the issue of whether the parties believed a valid marriage under English law had taken place was not decided.

BJ v MJ (Financial Remedy: Overseas Trusts) [2011] EWHC 2708 (Fam) (27.10.2011)

Thu, 01 Dec 2011 22:58:55 GMT

The court gave a summary of case law in respect of overseas trust assets before awarding a W the equivalent of £2,957,269 made up of a Housing settlement, pension, Lump sum, her own assets and a new settlement in respect of a charge on the FMH. The Court deviated from the clean break principle stating "Fairness is not to be sacrificed on the altar of finality". The court warned the Trustees and H that there were sufficient non trust assets to produce the same results by other means and the order was not be be perfected until their stance had been ascertained.

SA, R(on the application of) v Kent County Council [2011] EWCA Civ 1303 (10 November 2011)

Thu, 01 Dec 2011 22:51:11 GMT

The CA upheld a judgment of Black J where she found on the facts that a child was accomodated with her grandmother pursuant to a placement under s.23 (2) CA 1989 rather than s.23(6). This was relevant to the financial support to which she was entitled. A caution is expressed by the Court however that the case was decided under the law at the time and these provisions have subsequently been amended by CYPA 2008.

Jones v Kernott [2011] UKSC 53

Thu, 01 Dec 2011 22:49:00 GMT

The Supreme Court considered the correct approach to calculating beneficial interests in a property where the legal title is held in joint names. The Supreme Court agreed with the original county court judgment holding that Mr Kernott's share in the property had crystallised in 1995. The decision which was unanimous but with Lord Kerr and Lord Wilson reaching the same result as Lady Hale and Lord Walker (who gave the lead judgment) and Lord Collins but by a different route.

KM v Lambeth Borough Council [2011] EWCA Civ 1125 12.10.2011

Thu, 03 Nov 2011 09:09:44 GMT

The CA allowed a Father's appeal against an order made in the High Court limiting the disclosure to be made to him within Care Proceedings. The Mother had applied to adduce a psychiatric report but had sought to disclose this only to the court and other parties. Limited disclosure of certain passages only had been ordered in the High Court. The CA ordered the whole report to be disclosed.

H-K (Children) [2011] EWCA Civ 1100 10.10.2011

Thu, 03 Nov 2011 09:08:31 GMT

The CA allowed a Mother's appeal against an order under the Hague Convention that 2 children be summarily returned to Australia. Notwithstanding the Mother's effective admission that she had 'strung' the father along and caused him to believe that she would return with the children the CA held that the Judge had misdirected themselves in respect of the children's habitual residence.

Doncaster Metropolitan Borough Council v Watson [2011] EWHC 2376 (Fam) 01.09.2011 & Doncaster Metropolitan Borough Council v Watson [2011] EWHC 2498 (Fam) 01.09.2011

Thu, 03 Nov 2011 09:02:22 GMT

Elizabeth Watson having taken legal advice in respect of the above judgments applied to purge her contempt and her sentence of nine months was suspended (on terms of no further breach) for a period of two years allowing her to be immediately released. The judgment in Harris v Harris was then drawn to the Court's attention which is authority for the proposition that the court had no power to impose a suspended sentence on an application to purge contempt. Ms Watson was therefore freed without conditions but with a stern warning as to the consequences of any future breach.

Doncaster Metropolitan Borough Council v Watson [2011] EWHC B15 (Fam) 22.08.2011

Thu, 03 Nov 2011 09:01:11 GMT

In relation to the same events as in the above case the President found Elizabeth Watson to be in contempt of court for breaching the reporting restrictions order imposed by Baker J and sentenced her to 9 months imprisonment.

Doncaster Metropolitan Council v Haigh [2011] EWHC B16 (Fam) 22.08.2011

Thu, 03 Nov 2011 08:59:33 GMT

The Court gave judgment in open court attaching an 'information document' in order to allow a Local Authority, Father and Guardian to disclose information relating to proceedings to set the record straight in a situation where the Mother with the assistance of Elizabeth Watson had disseminated deliberately misleading and incorrect information as to the reasons that her daughter was now in the long term care of her Father with no contact to herself. The Mother alleged that the Father was a pedophile who had sexually abused his daughter. This had been found to be untrue and a fabrication of the Mother in previous judgments which had not been appealed. A s.91(14) order against the Mother was also made to protect the Father and child from further litigation.

SMBC v WMP & Ors [2011] EWHC B13 (COP) (14 June 2011)

Wed, 07 Sep 2011 12:24:35 GMT

The Court of Protection considered issues of borderline capacity within the context of Forced Marriage Protection Orders.

A & Anor v P & Ors [2011] EWHC 1738 (Fam) (08 July 2011)

Wed, 07 Sep 2011 12:22:24 GMT

The court considered Art. 8 and applied a purposive construction to statute in an application for a parental order pursuant to s.54 Human Fertilisation and Embryology Act 2008 in a situation where a surrogacy arrangement had been entered into by a husband and wife and the husband has died after the application for a s.54 order but before the hearing. The child had been joined as a party and parental orders were made.

Iqbal v Ahmed [2011] EWCA Civ 900 (29 July 2011)

Wed, 07 Sep 2011 12:20:15 GMT

This case is interesting for its use of the dicta in Miller in an Inheritance Act context. The CA upheld a first instance judgment conferring on a widow the right to occupy the home for life and half the proceeds of sale (the other half being held by her step son), the whole of the residuary estate and the agreement of the step son to pay half the insurance and the structural repairs of the property in substitution for the sum of Â£8,000 and the right to occupy the former matrimonial home left to her by her husband.

S (A Child), Re [2011] EWCA Civ 812 (15 July 2011)

Wed, 07 Sep 2011 12:11:06 GMT

The CA dismissed a mother's appeal against the refusal of a residential assessment under s.38(6). The CA considered recent case law in respect of the fairness of proceedings and the Public Law Outline in coming to the decision that the Judge's decision had been well within her discretion.

Brighton and Hove City Council v PM & Ors [2011] EWCA Civ 795 (12 July 2011)

Wed, 07 Sep 2011 12:07:47 GMT

The CA struck out a paragraph within a preamble providing that no fact finding hearing in relation to the maternity of a 15 year old child subject to care proceedings as she refused a DNA test. The CA struck out the paragraph as the issue needed to be addressed but made it clear that it would not require a fact finding hearing for a clear inference to be drawn. The CA further noted that the county court would not be bound by the findings of the Immigration Tribunal in respect of maternity.

MK v CK [2011] EWCA Civ 793 (07 July 2011)

Wed, 07 Sep 2011 12:05:37 GMT

The CA allowed a father's appeal against an order allowing a mother to relocate to Canada with the couple's two children. Although all three judges allowed the appeal two of the three judges considered that Payne should not be applied to cases involving shared residence orders while Black LJ took the view that all the facts of each individual case needed to be considered.

GD v EK & Richard Mill, Curator ad litem to M, Sheriff William Holligan, Edinburgh Sheriff Court, 4 May 2011

Thu, 18 Aug 2011 22:35:00 GMT

The pursuer and defender were respectively the father and mother of the child M (born 17 September 2006). Both parties had parental rights and responsibilities in respect of the child. The pursuer sought a residence order, failing which he sought a contact order in his favour. The defender, who had previously abducted M and taken her to New Zealand for some 6 months in 2009, sought a residence order in her favour and a specific issue order to allow her to move to New Zealand. Following M’s abduction, the pursuer had commenced proceedings in New Zealand pursuant to the Hague Convention. A reserved judgment was issued by the New Zealand family court ordering the defender’s return to the UK with M. Since their return, M continued to reside with the defender and interim interdict and contact orders were in place.

It was submitted for the defender that the English Court of Appeal decision in Payne v Payne [2001] Fam 473 was good law in Scotland. In particular, reference was made to the court’s discussion of ‘reasonable proposals’ of a relocating parent and certain factors set out by the Court of Appeal to be considered in relocation cases.

For the pursuer, it was submitted that Payne was not the law of Scotland and whereas the factors may have some value, they could not detract from the welfare test. Further , it was submitted that the court should be very cautious as to trusting the defender to go to New Zealand given the history of the case.

The curator did not support the defender's crave for a specific issue order. He was in favour of a residence order in the defender’s favour and a contact in the pursuer’s favour. He did not consider that contact should be materially increased nor that, as the pursuer wished, M should have an equal amount of time with both parents.

Having heard evidence and submissions, the Sheriff noted that the key tests to be applied were those set out in section 11(7) of the Children (Scotland) Act 1995. These were firstly, the welfare test, secondly, the no order principle and thirdly, that the views of the child were to be considered. As M was too young to express a view, a curator had been appointed. The Sheriff also noted that most of the authorities on relocation referred to by the parties were not binding upon him. He was not inclined to decide the case by reference to Payne, nor to afford a special status to the relocating parent’s wishes.

The Sheriff concluded that the pursuer’s motion for a residence order should be refused. He also refused the specific issue order sought by the defender, but made a residence order in her favour, considering it better that such an order be made in order to provide stability. In respect of contact with the pursuer, parties appeared willing to adjust contact terms and this would be preferable to a court order. On the question of the defender and M travelling to New Zealand, the pursuer’s anxieties as to whether the defender would return were not without foundation, although a permanent ban on travel to New Zealand would also be unreasonable. The Sheriff did not deal with the issue at the present time and continued the interdict in that regard.

The Sheriff reserved all questions of expenses and assigned a hearing to deal with them as well as any requirement to vary existing orders for contact.