Family Law

Family Law Newsletter #1212.04.18

Statute Updates

The Family Procedure (Amendment) Rules 2018 – Amendments to Rules 4 & 9 with effect from 4 June 2018

Case Updates

B (Children) [2018] EWCA Civ 614

Court of Appeal (CIVIL DIVISION): McFarlane, David Richard and Peter Jackson LJJs

Appeal from His Honour Judge Gareth Jones’ order dismissing an application by a mother seeking a summary return of her three children to Spain under the Hague Convention on the Civil Aspects of International Child Abduction 1980. The children had been wrongfully retained in England by their father at the end of a short, agreed holiday. The judge found two of the convention defences had been made out: the grave risk of harm under Art.13(b) and the child’s objections under Art.13.

The grounds of appeal were that: the judge wrongly concluded in relation to the Art.13(b) defence; the judge wrongly found that child A objected and the judge wrongly exercised discretion.

Peter Jackson LJ found the judge was wrong to find that the father had established a defence under Art.13(b) and that the evidence fell a ‘considerable way short.’ Jackson LJ found no substantial evidence on which it could be concluded that A objected to returning to Spain. Further, the judge’s exercise of his discretion was incorrect, as it did not touch upon, [45] a discretionary return after a finding of grave risk of harm was inconceivable. Finally, the judge gave greater weight to the evidence of the Cafcass officer as opposed to the evidence of the children.

The Court of Appeal ordered the immediate return of the children in Spain and allowed the appeal.

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EA v NA [2018] EWHC 583 (Fam)

High Court: Keehan J

Mrs EA sought a declaration under the Presumption of Death 2013 in relation to Mr NA, her husband. She claimed that Mr A had either died or, alternatively, had not been known to be alive for a period of at least seven years.

Mrs A had placed an appropriate advertisement in the local newspaper covering the area where Mr A was last known to reside. She received no contact from any individual.

Keehan J found that the identity of the individual was not known and little detail was given of the circumstances in which or when Mr A died. However, he was not satisfied that Mr A had died. Notwithstanding this, the judge was satisfied that Mr A had not been known to be alive for a period of at least seven years. Therefore he presumed that Mr A had died at the end of the period of seven years.

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Re T (A Child) [2018] EWCA Civ 650

Court of Appeal: McFarlane, Peter Jackson & Newey LJJs

Appeal concerning the powers and duties of local authorities and the family court when considering an application for a placement order. Where the court decides that a child could live with a family member, but only if there is support and monitoring from the local authority, and the local authority declines to provide that support and monitoring, how should the court respond?

The court at first instance had found that the risks in the case could be met by placement with the grandmother with a care order, but only a care order would meet those risks. The case was adjourned for the local authority permanence panel to reconsider the matter in the light of the judgment. However the panel again resolved not to approve the grandmother as a connected person foster carer. In those circumstances, the court had made a placement order.

The Court of Appeal held that the Judge had accepted the local authority’s position too readily, and effectively acceded her decision making powers to the panel. Even if she had accepted that the care order could not be made with a plan to remain in the grandmother’s care, there were other legal orders which should have been explored. The options for the Family Court had not been exhausted and should have been taken further.

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See also for commentary – Judge versus Fostering Panel – suesspiciousminds