Family Law

Family Law Newsletter #2719.09.19

Updates and Guidance

Nuffield Family Justice Observatory: Special Guardianship review [pdf].

New law to aid in the management of affairs for people who are missing.

Civil Justice council: Consultation paper [pdf] on vulnerable witnesses and parties in civil proceedings.

Association of Lawyers for Children: Response to MOJ call for evidence in assessing risk of harm to children and parents in private law children cases

Case Summaries

Re X (Female Genital Mutilation Protection Order. No.2) [2019] EWHC 1990 (Fam)

This case concerned a 3 year old girl (X) residing in the UK with her mother. X’s father at the time of the hearing lived in Egypt and was unlikely to obtain a visa in the near future. The proceedings began in 2017 when the local authority under Section 5A and Schedule 2 of the Female Genital Mutilation Act 2003 made an application for a female genital mutilation protection order (FGMPO) after concerns arose that female genital mutilation (FGM) may take place in Egypt when ‘X’ visited her father. An FGMPO and worldwide travel ban was made by Russell J which was subsequently appealed by the parents of ‘X’. The imposition of the FGMPO and the worldwide travel ban was not disputed. The issue for Cobb J in the present case was whether the travel ban could be ‘relaxed’ to allow ‘X’ to visit her father in Egypt.

In the high court there was a separation of contextual (macro) factors and individual (micro) factors, both of which had to be considered when dealing with applications for travel prohibition in cases involving potential FGM. On a macro level, the judge considered the prevalence of FGM in Egypt and on a micro level he considered the parents’ attitudes towards FGM. Cobb J subsequently concluded that the worldwide ban in this case was still justifiable in light of certain risk factors including the dynamism of risk in FGM cases involving younger children and the impact on the child if the risk came to fruition. The need to secure the “health safety and wellbeing” of the child concerned was also a matter of importance, the word ‘secure’ was read in this instance as involving a reasonable and proportionate management of risk. In light of these factors relevant safeguards could be imposed to allow for a short trip to Egypt as requested. Cobb J made the order of an FGMPO which made the trip to Egypt conditional upon the maternal grandfather complying with previous undertakings to supervise the visit.

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E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447

In 2018 final care orders were made in a case involving three children now aged 9, 4 and 2. The children were removed from the care of their mother after the youngest child (then aged 10 months) was found to have 3 burns of her arm. Following a report, it was found that the burns were likely to be non-accidental and caused by a cigarette. Parallel to this investigation was a criminal trial, the report used in such trial from a forensic burns consultant proposed that the mothers explanation regarding the accidental causes of the burns could be plausible. The mother wished to use this evidence to challenge the findings made against her at trial; the issue was that her appeal was out of time.

This case therefore concerned how further evidence in family proceedings should be dealt with. This was a pressing matter for the judge who found that this is an issue which arises often where family cases are shorter and the parallel criminal case brings to light further evidence. The judge stated that the law was unclear about what should happen in cases where there is a free-standing application to the trial court after proceedings have ended and where there are no other proceedings on foot. Jackson LJ reinforced that s.31(6) of the Matrimonial and Family Proceedings Act 1984 gives the family court the statutory power to review its findings of fact in such circumstances.

Jackson LJ then referred to the case of Ladd v Marshall [1954] 1 WRL 1489 which indicated that a challenge to findings after sealed order could be conducted in the appellate court. The judge then departed from this provisional view and dismissed the appeal in the present case. It was held that it would be more appropriate for an application to be made to the trial court where the judge is better placed to assess the significance of further evidence. Jackson LJ said the court’s decision on such matters would be case specific and in certain circumstances an appeal would be more suitable, for example where the judge had fell into error regardless of further evidence.

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Moher v Moher [2019] EWCA Civ 1482

Financial remedies case reviewing the law on non-disclosure and adverse inferences

At trial, the judge made an award to Mrs Moher of 1.4 million and stated that until the lump sum had been paid and the husband had granted the wife her Get, periodical payments to the wife must be made. Mr Moher appealed on five grounds, he claimed that the judges failure to quantify the scale of his undisclosed assets was an err in law, additionally he claimed that the judge was wrong to award interest on the lump sum and was wrong to order periodical payments until the granting of a Get.

The Court of Appeal in the present case noted that the absence of a structured s.25 analysis had provided scope for the appeal; the 1.4 million figure was not reached clearly. Moylan LJ conducted a detailed review of how the courts deal with non-disclosure. He concluded that it may not always be necessary to quantify undisclosed resources, specifically in this case it was permissible to infer that the resources were sufficient where the assets were uncertain.

In relation to the lump sum carrying interest prior to the date of its first payment, the Court of Appeal held that this was within the court’s jurisdiction. Moreover, the periodical payments were allowed to continue until decree absolute was granted (the grant of a Get), the court has jurisdiction to do this under s.10A of the Matrimonial causes Act 1973.

The appeal was dismissed on all five grounds however Moylan LJ set out guidance in relation to judgments in financial remedy cases. Every financial remedy judgment must set out the ultimate conclusions in respect to the provisions of s.25, this aids the parties in understanding the conclusion and follows a process. There must always be a clear judgment setting out how the award has been calculated by reference to needs or sharing.

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