Family Law

Family Law Newsletter #0311.10.17

Case Updates

Case updates and summaries

CH v WH [2017] EWHC 2379

High Court: Mostyn J

The High Court was asked to approve a consent order following the refusal of two district judges of the Southampton Family Court to do so. The consent order addressed, among other things, a jointly owned property which was to be transferred to the wife and another such property which was to be transferred to the husband. It provided that each party had to (a) use his or her best endeavours to procure the release of the other party from the mortgage, and (b) indemnify the other party against liability thereunder. Two district judges refused to approve the order, finding that there was no power under the Matrimonial Causes Act 1973 to order the spouses to take the steps provided for.

Mostyn J approved the consent order. In his judgment he stated that as far as the court was aware, orders of this kind had been made routinely over the last three years. The basic mistake made by the district judges in Southampton was to assume that their powers were confined to the ‘four corners’ of the 1973 Act. The Family Court had all the powers of the High Court. The High Court unquestionably had the power, as part of its equitable jurisdiction, to order an indemnity. If awarded, it represented a legal right in favour of the person indemnified. The court could award an injunction in support of a legal right.

To order someone who had been ordered to indemnify the other party in respect of a mortgage to use his or her best endeavours to keep up the payments on that mortgage was of the nature of an injunction in support of a legal right. The provisions in the consent order were squarely within the power of the High Court to order and they therefore could be ordered by the Family Court.

Consent order approved.


Re E-R (Child Arrangements)(No.2) [2017] EWHC 2382 (Fam)

High Court: Cobb J

This concerned a child (T) who is eight years old and was five when her mother passed in 2015. T’s full-time carers, Mr and Mrs H, were family friends of the child’s deceased mother. Cobb J had settled arrangements for T’s upbringing following a contested hearing in 2016. These arrangements were quickly ignored and breached by the father. Mrs H felt compelled to issue a fresh application seeking the court’s further directions.

The father sought to become T’s main carer. Alternatively, he made an application for an order attaching a warning notice to the original Child Arrangements Order so that he could enforce contact as against the carer. The father alleged that Mr and Mrs H had been emotionally, sexually or physically abusing T.

Cobb J rejected the father’s allegations including that Mr and Mrs H were motivated by financial gain. The judge found that T was at risk of psychological harm from a second attachment disruption and by exposure to conflict – either between the H’s and the father, or within the father’s home. Having addressed the checklist in section 1(3) of the Children Act 1989 Cobb J reached the conclusion that T’s interests would be best served by remaining in the care of Mr and Mrs H.