Family Law

Family Law Newsletter #2324.04.19

Updates & Guidance

Sir Andrew McFarlane speech “interesting times”

Family Court Quarterly statistics: New cases in family courts rose 3% in 2018

Briefing paper considering surrogacy and parental orders

Family law disputes involving EU after Brexit: Guidance for legal professionals

Case Summaries

Ipekci v McConnell [2019] EWFC 19

Judgment on husband’s financial remedy claim. No weight given to prenuptial agreement.

Concerned an application by the husband for financial remedy. The husband works as Head Concierge for a London Hotel, earning £35,000 p/a. The only capital the husband had was a 50% interest in his mother’s home worth £50,000. He had debts of just over £100,000. The wife is an American heiress and beneficiary of trusts valued at $65million. The family home had a value of £1.675 million.

A prenuptial agreement was signed by the husband in November 2005. It provided that any proceedings relating to the marriage would be determined in accordance with New York laws. The prenup that was signed was that the Husband would get nothing.  It was held that it would be wholly unfair to hold the husband to the agreement for the following reasons:

  1. The agreement suffered from a fatal defect under New York law, meaning that in New York it would have minimal weight;
  2. The husband didn’t have full appreciation of the implications of the prenup. The only advice he received was from a lawyer who previously acted for the wife so there is a clear risk of bias; and
  3. The agreement did not meet any needs of the husband.
  4. The court assessed the needs of the husband and awarded him a lump sum of £1.3million.

Transcript: https://www.bailii.org/ew/cases/EWFC/HCJ/2019/19.html

B (Children) [2019] EWCA Civ 575

Care proceedings. Appeal raising question of principle about the proper approach to the identification of a perpetrator in circumstances where children had suffered significant harm as a result of alleged ill-treatment.

Proceedings concerned four children aged 12, 10, 8 and 5. On 17 May 2018 the father took one of girls to the doctor after the mother found discharge in her underwear. The tests were positive for gonorrhea. The GP made a referral to social services. The mother said it must have been caught from an unclean toilet seat. Three of the children were tested positive and one negative. The mother and father both tested negative and there was no record of previous infections or treatment.

In June 2018 the four children were placed in foster care. Both parents arrested on suspicion of sexual assault and neglect. Two days later the local authority obtained emergency protection order and shortly after an interim care order was made.

The appeal came from the father from a conclusion reached in care proceedings in October 2018. The father appeals on the basis that the Judge:

  1. Applied the wrong test for identification of possible perpetrators;
  2. Drew improper inferences from the evidence and effectively reversed the burden of proof;
  3. Attached too much weight to the father’s opportunity to infect the children;
  4. Was wrong to single out the father when the pool of perpetrators is not finite; and
  5. Inconsistently found that gonorrhea was transmitted sexually to the children but also that only one or two of them may have been infected in this way.

The Court of Appeal held that the Judge wrongly started from a presumption that the father was in the pool of perpetrators and put the burden on him to show there was no real possibility he had abused his children and he was effectively placed in a pool of one as the evidence against other possible perpetrators was not explored or tested. They concluded that there had not been a thorough enough investigation and the Judge’s analysis fell short. The Court of Appeal allowed the appeal and remitted the matter for a rehearing.

Transcript: https://www.bailii.org/ew/cases/EWCA/Civ/2019/575.html

PR v JES v TER (Appeal: Sexual Abuse, Fact Finding) [2019] EWHC 791 (Fam)

This was an appeal against findings made within private law proceedings

The case concerns an appeal against a finding that the father had sexually abused his daughter (T). In December 2015 the mother alleged T returned from her father’s care with a swollen genital area. A GP examination found no visible signs of abuse. A social worker spoke with the child and she did not make any allegations. She did say her father sometimes washed her after toileting. An assessment in March 2016 concluded there was no evidence of sexual abuse.

The mother then said she directly asked T if her father touched her and she nodded. T was spoken to twice and on neither occasion made any allegations. A review by the police in May 2016 concluded the mother had convinced herself T had been abused.

In August 2016 the mother’s solicitors wrote to the court stating T had made further disclosures to the mother. T made no allegations when spoken to by the police and a social worker. In January 2017 the first judgment was handed down, finding that on the balance of probabilities sexual abuse had not been established.

In March 2017 the mother responded badly to the suggestion of unsupervised contact between T and her father. A contact centre worker asked T how she would feel about contact at her father’s home and she said she didn’t like it when he washed her bottom. T then wrote down at a second meeting that her father had digitally penetrated her. The matter was referred to the police and children’s services.

A re-hearing took place and made findings that on at least two occasions the father touched T and had on one or more occasions digitally penetrated T’s bottom or genital area. The Judge initially refused to grant the father permission to appeal. The father made a new renewed application to appeal in August 2018 and was granted permission. The appeal has been adjourned to 14-15 May 2019.

The father’s appeal was allowed on his first two grounds of appeal that:

  1. The Judge failed to properly apply relevant legal principles to the second fact-finding exercise and as a result adopted an approach that was improper and flawed; and
  2. The judge failed to analyse the allegations made following the first judgment in the light of the totality of the evidence and had placed improper weight on the allegations made by the child in May 2017.

Transcript: https://www.bailii.org/ew/cases/EWHC/Fam/2019/791.html