Family Law

Family Law Newsletter #2020.02.19

Updates and Guidance

Legal Support Action Plan [PDF] (See also Resolution report).

No-deal Brexit guidance: Practical recommendations for family law.

FGM resource pack

Post-Implementation Review of Part 1 of LASPO

Research

Study finds [pdf] children’s wellbeing is not negatively affected by living in single parent households.

Inquiry begins into children whose mothers are in prison with its first public session.

Judicial Approaches in Settlement Conference Pilots in Children Cases [PDF].

Case Summaries

G (Children: Fair Hearing), Re [2019] EWCA Civ 126 (07 February 2019)

Appeal by mother from interim care orders made in respect of two young children. Appeal allowed, on the basis that the judge subjected her to improper pressure, as a result of which she did not freely consent to the ICO.

A mother appealed an interim care order that was made in respect of two young children on the grounds that she was subject to improper judicial pressure that led to the order being made without her opposition. The hearing was before HHJ Carr QC. The order records that neither parent opposed the making of the interim care order.

This was a procedural appeal, concerned with a party’s right to put their case and to have it fairly judged, it was not about the outcome. The initial hearing was an urgent application which the judge rightly appreciated had to be decided that day. Before the judge was even told by the mother’s advisor that their instructions were to contest the order, she stated she will “certainly make findings that your client will be stuck with”. The conclusion was drawn by the mother and her advisers that the judge had made up her mind and was sure to make adverse findings that would be damaging to her in the long run. When the mother’s adviser attempted to put a small part of the mother’s factual case, he was met with “oh, nonsense”, “preposterous proposition you’re putting to me”.  HHJ Carr finally made the statement that she shall probably send her finding to the police and require it goes to the CPS and see what happens. The Court of Appeal say whether or not that was an empty threat is beside the point and it was inappropriate.

The Court of Appeal held that the mother’s consent or non-opposition to the interim care order was not freely given, but secured by oppressive behaviour on the part of the judge n the form of inappropriate warnings and inducements. The mother did not get a fair hearing, regardless of the fact she was legally represented and the appeal was allowed. The interim care order will be set aside and replaced by a short-term interim care order, to last until an early contested hearing before another judge.

Transcript: https://www.bailii.org/ew/cases/EWCA/Civ/2019/126.html

A (Children) Re [2019] EWCA Civ 74

Appeal by mother from a fact finding judgment given in the course of private law proceedings concerning four children. Appeal allowed.

The purpose of the judgment had been to provide an evidential platform for the court’s subsequent determination of what child arrangements orders would be in the best interests of the children.

The mother and father were born in Pakistan. By the date of their marriage in 2001, the father had been living in the UK for some time and was a UK national. The mother came to the UK in 2002 on a spousal visa. In 2003 the mother was given indefinite leave to remain in the UK. The couple had four children during their marriage. Between May 2012 – February 2016, the parties lived in Pakistan where they separated and reconciled a number of times. In February 2016 the father returned to the UK with the children, the mother stayed in Pakistan.

The mother issued proceedings in 2016 whilst in Pakistan, she returned to the UK in 2017 where the case progressed. She made allegations against the father of domestic abuse and that he had alienated the children against her. The fathers case was that the mother had abandoned the children in 2012 and mistreated them, which accounted towards their ill feelings to her. The first instance judge rejected the mother’s allegations and found that she had mistreated the children. He also found that the father had not actively alienated the children and refused to make a finding that they had been wrongfully removed from their mother in Pakistan.

The mother appealed on a number of grounds. The Court of Appeal held the judge’s conclusion that the mother was not stranded was not supported by his analysis. They were of the view that the issue of stranding was fundamental and as such the court allowed the appeal and the judgment was set aside to be reheard.

Transcript: https://www.bailii.org/ew/cases/EWCA/Civ/2019/74.html

M (A Child) [2017] EWCA Civ 2679 (14 December 2017)

Appeal by mother against interim care order in relation to 8-week old child. Appeal dismissed

The interim care order resulted in the immediate separation of the mother and her child, B. the issue raised by the appeal was whether the judge’s decision that the circumstances required the immediate separate of the child was wrong. The guardian supported the mother’s appeal, the local authority opposed it.

The mother is 34, she has three older children. She first became known to the social services in 2010 due to incidents of domestic abuse between her and her partner. A care order was made for the eldest two children and the youngest child has since been adopted. The local authority became aware the mother was pregnant with B following a referral from an ante-natal unit. The mother had told the unit all three of her children were living with her and she found this stressful. The unit checked and found this was not true. The mother also presented as hostile, uncooperative and at times aggressive and threatening.

Following the child’s birth an emergency protection order was made. The court later ordered that B should be placed with the mother in a residential unit. An application for an urgent hearing was issued by the local authority because the residential unit had given notice of its intention to terminate the placement because they felt unable to work with the mother. The mother sought the placement of B with her at home, this was opposed by the local authority which sought B’s immediate placement with foster parents. The judge made an interim care order on the basis that B would be placed in foster care.

The mother appealed the finding. The question raised is whether the judge was wrong to determine that the substantive threshold, for the making of an interim care order involving immediate separation had been passed. The court of appeal held the judge was entitled to decide there was an immediate risk to B’s safety if he was placed in the mother’s are and the appeal was dismissed.

Transcript: https://www.bailii.org/ew/cases/EWCA/Civ/2018/2679.html