Family Law

Family Law Newsletter #2529.05.19

Updates & Guidance

President Guidance: Draft Guidance on reporting in the family courts.

Latest view from the President’s Chambers

“Family President to issue guidance to courts on secure accommodation placements and statutory regime by the end of July”

New programme to be delivered to tackle child exploitation”

Case Summaries

R (A Child) [2019] EWCA Civ 895

Summary from Ashley Lord on the decision in R (A Child) [2019] EWCA Civ 895

A Local Authority v A Mother & Ors [2019] EWCA Civ 799

Appeal by a local authority against a finding in care proceedings regarding injuries suffered by a baby.

A was born in April 2018. In June 2018 at a hospital examination, A was found to have four healing rib fractures, a bruise on her left cheek, a petechial rash on her lower lip, a torn upper frenulum, and a bruise on the outside of her right knee. A police protection order was obtained and the parents were arrested on suspicion of GBH. The mother confirmed she had been co-sleeping with the baby. A was placed with a foster carer but later moved to live with her paternal uncle and his partner.

The trial judge found that the fractures were caused by accident whilst the mother had been co-sleeping with A. The father gave evidence in the witness box for the first time that he had caused the tear to A’s frenulum during a feeding and the trial judge accepted this account. The Judge found that the other injuries were accidental too.

The local authority appealed against the decision on the following grounds:

  1. The finding that the rib fractures were caused by overlaying and not by the mother or the father squeezing or compressing the chest was against the weight of the evidence.
  2. The judge gave insufficient weight to (a) the text messages between parents (b) the evidence of Dr Croft that overlaying was not a probable cause of rib fractures, and (c) the fact the mother had not put forward overlaying while co-sleeping as a positive case
  3. The judge gave too great weight to the opinion of Dr Johnson that overlaying was a possible cause of rib fractures.
  4. The judge failed to consider each part of the evidence in the context of the other parts of the evidence.
  5. The judge failed to consider whether the father may have caused the rib fractures.

The Court of Appeal held there was failure to consider the totality of the evidence and the trial judge was overly influenced by the favourable impression he formed of the mother. The judgment was set aside entirely and remitted for a rehearing.

Transcript

Gloucester County Council v JD & Others [2019] EWCH 1101 (Fam)

Judgment of Williams J in care proceedings relating to two children where a Child Arrangements (“live with”) Order was made in favour of the father and his partner who live in Portugal.

Case concerns two children, P aged 3 and B aged 2. The children have the same mother. The father is registered on the birth certificate of P but is not in fact her biological father. He is the biological father of B.

The proceedings started when findings were made that the mother had caused injuries to B and emotional harm to P. Further findings were made that B suffered serious injuries when he was a small baby, including brain trauma, fractures of her ribs, laceration to her liver and spleen, and various soft tissue injuries. The mother was found to be a possible perpetrator along with the landlady of the house.  The father was exonerated of any responsibility for the injuries B had sustained.

Following the findings there was a direction for the father and his new partner to be subject to social work assessments to determine whether they would be able to care for P and B. The assessment was detailed and included 28 hours of observation. The conclusion of the report was positive noting that both the father and his partner were kind and fair to both children and able to meet their needs.

The Local authorities approach to the future of the case was to place the children with their father and his partner in Portugal. The father, mother and Guardian supported the plan. The Court was satisfied on the evidence that it was in P and B’s welfare that they should live with the father and his partner under the proposed arrangements. The Judge confirmed that the ‘live with’ orders, which conferred Parental Responsibility, would have effect in Portugal pursuant to Article 16(3) of the 1996 Hague Convention.

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Crowther v Crowther [2017] EWCA Civ 2698

Appeal brought by the husband in matrimonial proceedings relating to the future of the former matrimonial home.

It is accepted by both parties that the home was bought entirely from the inheritance that the wife had received following the death of her parents. It was mortgage-free and valued at £200,000. The wife’s case was that the home should not be sold and the husband should have no part of the value of it. The husband’s case was that the house needed to be sold to liberate the capital in the property that should be split equally between the parties, providing that £100,000 each was sufficient for them to rehouse themselves. He would move out of his parent’s home into a one-bedroom property and live their own his own.

Both parties were vulnerable in terms of their psychological and mental health. The wife had been acting in person throughout the proceedings and at a number of early directions hearings her presentation caused concern as to whether she had capacity to conduct the litigation herself. The husband is physically disabled. Since the separation he has been living in his parent’s home. He is confined to a wheelchair and limited in his ability to look after himself.

The trial itself was conducted with the wife as a litigant in person but with the husband represented by a solicitor and an experienced specialist family law junior barrister. The judge concluded that the wife needed to remain in the property and did not award the husband any of the capital. The judge was of the view the money would not meet the husbands needs as he lacked the capacity to live independently anyway.

The husband appealed due to the questions that the judge asked. The questioning runs 26 pages long and related to his lifestyle, with the last 5 pages focusing on whether he could realistically live independently as he sought to do. The Court of Appeal held that the husband is right to assert that the question of independent living only arose for the first time when the judge began cross examining him and did not form part of the wife’s case beforehand. The judge went beyond simply assisting the litigant in person to present her case and the appeal was allowed and the matter sent for a rehearing. The Court of Appeal directed that the wife needs to be legally represented and this particular case ought to justify exceptional funding by the Legal Aid Agency.

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