Family Law

Family Law Newsletter #3906.10.20

Guidance / Updates

Update: Standard financial and enforcement orders issued by Mr Justice Mostyn

Government consultation response: Children’s Social Care including consideration of extending the Adoption and Children (Coronavirus) (Amendment) Regulations 2020

International Child Abduction and Contact Unit: Updated request for co-operation form

Case Summaries

K (A Child) (Stay of Return Order: Asylum Application) (Contact to a Parent in Self-Isolation) [2020] EWHC 2394 (Fam)

High Court: Mr Darren Howe QC (Sitting as a Deputy High Court Judge)

– A case which considers the effect of an asylum application on a return order and contact between a child and a parent who is subject to compulsory quarantine on arrival in the UK.

In a judgment dated six weeks prior to this hearing, Cobb J granted the mother’s application for the return to Russia of K, a 9 year old boy, under the Hague Convention 1980. Subsequently, the father made a “tactical” application seeking a stay of the return order, and through him an asylum application made by K, in an attempt to avoid the consequences of the return order. On behalf of the mother, it was argued that K’s application for asylum was a sham.

The first matter to be determined was whether the commencement of an asylum application by, or on behalf of, a child could prohibit the enforcement of a return order made under the Hague Convention 1980?

Counsel for father submitted that the existence of an undetermined application claiming asylum prohibits the state, in the guise of the court, from returning a child to the country of habitual residence. He relied on decisions of Mostyn K, Hayden J and Cohen J in E v E (Secretary of State for the Home Department intervening) [2017] EWHC 2165 and F v M [2018] EWHC 2106 (Fam) who came to similar conclusions on the matter. Counsel for the mother did not accept that any application for asylum, however genuine, acted as a bar to the enforcement of a return order and relied on Re S (Child Abduction: Asylum Appeal) [2002] EWCA Civ 843 in which the Court of Appeal determined that section 15 of the Immigration and Asylum Act 1999 applied only to the executive. He sought to distinguish earlier decisions on the basis that they did not involve an application made by a child.

The judge was not persuaded to interpret the law differently and concluded that there would need to be “a powerful reason” for not following the decisions of the High Court. In his judgment, the commencement of an asylum application by, or on behalf of, a child prohibited the enforcement of a return order made under the Hague Convention 1980.

The second issue to be determined was whether the abovementioned prohibition is removed if the court concludes that the asylum application was a “sham”.

Counsel for the mother submitted that if there were matters concerning harm to which K would be exposed in Russia that could found an application for asylum, those same facts should have been raised as an article 13(b) defence in the Hague proceedings before Cobb J. Further, he highlighted that K did not need the grant of refugee status to remain in the United Kingdom; he only needed that to avoid the consequences of the return order. In the absence of any evidence concerning the facts relied on in the claim for asylum, the judge was unable to determine whether or not the asylum claim was legitimate. Irrespective of such a determination, there was no exception provided to the general rule that a claimant for refugee status could not be returned until the claim itself had been refused and subsequent appeals had been exhausted. The judge did however agree with counsel for the mother that the issue of a dishonest and illegitimate asylum claim “drives a coach and horses” through the intentions of the Hague Convention.

The judge granted the stay of the return order.

The mother also made an application for contact. As the mother lived in Russia and K lived in the UK with his father, this raised the question of whether any order for contact should require contact between K and his mother during the period when she is required to self-isolate by reason of The Health Protection (Coronavirus, International Travel) (England) Regulations 2020 or whether the requirement prohibited the mother having contact with K. It was submitted on behalf of the mother that direct contact should take place during the 14-day period of self-isolation due to the provisions of Regulation 4.

Although the question of whether an order for contact should be made could not be considered at this hearing, the judge’s provisional view was that there was no automatic exemption from the self-isolation requirements of the regulations that permitted contact between a child and a parent who were not part of the same household. The usual approach should be that the child is protected from a risk of contracting the virus by visits not taking place during the quarantine period but there may be special cases where an exemption should apply.

Full judgment available at: https://www.bailii.org/ew/cases/EWHC/Fam/2020/2394.html

F v G [2020] EWHC 2396 (Fam)

High Court: The Honourable Mrs Justice Judd DBE

– An appeal in relation to an order made in private law proceedings restricting contact and the exercise of parental responsibility.

This case concerned 2 children born in 2011 and 2013 respectively. The family lived in the Far East and then in the United States of America before moving to the UK in the summer of 2018.

The parents separated in 2017, following which they became involved in court proceedings in the US when the mother applied to relocate to the UK. In May 2018, the court handed down judgment permitting the relocation on specified terms, including that the children should spend extensive holiday periods with the father. Thereafter, in June 2018, the father indicated that he intended to move the UK as well requiring the US court to reconsider the question of his contact arrangements. It ordered that the children should spend every other weekend with him, plus Wednesday to Friday in the intervening week. Jurisdiction was formally relinquished in February 2019.

In the early part of 2019, an incident occurred whereby the mother alleged the father had behaved in an overbearing and abusive manner, and that he had slammed a door into her when he was carrying the youngest child in his arms. In March 2019, the mother applied for a child arrangements order in the English court.

The mother applied for there to be a fact finding hearing at the FHDRA although, after some discussion surrounding the necessity of the same given the mother was content for the children to have a relationship with their father, she withdrew such application.

The first section 7 report was produced by the Cafcass officer in the case in September 2019. He came to the conclusion that the younger child’s “resistance to spending time with his father is justified” and said that he found his views to be based on his direct experience of his father and “are consistent with his previous disclosure that he had witnessed domestic abuse perpetrated by his father against his mother”. He came to the opinion that domestic abuse was likely to have occurred since the end of the relationship and that the mother was currently experiencing coercive and controlling behaviours.

The Cafcass officer recommended an expert assessment of the father and such was conducted by a Consultant Psychiatrist. The expert concluded that the father did not suffer from any mental illness, nor did he have a personality disorder and issues about the father’s behaviour should be determined by the court.

At the final hearing, the mother’s case was that the father’s direct contact with the children should cease, save for indirect contact via Skype. She also submitted that there should be a very significant restriction of the father’s parental responsibility, insofar as making decisions in respect of the children’s health and education.

The judge accepted the Cafcass officer’s recommendations and decided that direct contact should cease for the time being. The judge also restricted the father’s parental responsibility. Significantly, the judge also made a number of findings of fact. He determined the father had been physically violent to the mother and that the father refused to cooperate with educational and medical issues and caused the children harm as a result of that too. He found that the father’s allegations against the mother were a “diversionary tactic”, that the father was untruthful, and that he had sought to influence what the children said to the Cafcass officer.

The father appealed on a number of grounds:

  1. The judge was wrong to make findings in circumstances where the parties had agreed that there would not be a factfinding hearing;
  2. The judge had relied on the Cafcass recommendation when that was based on the officer’s own assessment of the facts;
  3. The judge applied insufficient weight to the extensive assessment that had been carried out in the US, which had led to several orders providing for joint parenting; and
  4. The judge was wrong to make the decision he did, terminating direct contact, without sufficient exploration of other types of contact, including supervised contact.

The appeal was allowed for the following reasons:

  1. The recommendation made by the Cafcass officer and accepted by the judge that there should be no direct contact was based upon the officer’s clear view that the father had engaged in controlling and abusive behaviour. At the FHDRA it was ordered that there should be no fact-finding hearing and this decision was not revisited at the DRA. The effect of there being a Cafcass recommendation based upon findings that were not formally being sought put the father at a disadvantage.
  2. The Cafcass officer advised, and the recorder found, that the children were suffering harm. This finding was very much depending upon the findings that the father was coercively controlling and abusive as the children appeared to be functioning pretty well on a day to day basis. Despite making such a significant recommendation, the Cafcass officer did not observe the children with their father, to get some direct evidence of the relationship they had. The most detailed assessment of the father’s relationship with the children had been in the US proceedings. The recorder was right to note that he was not bound by the US court decision but given the magnitude of the decision he was making, the recent, very different conclusion it had reached and the evidence underpinning it should have been given more weight.
  3. The recorder did not appear to weight in the balance the harm that could be caused to the children by the immediate loss of their relationship with the father, which had to be set against the risks to the children and the mother of contact continuing.

The appeal was allowed and the case was remitted for a rehearing.

The judge noted that the recorder found himself in an “extremely difficult position” on the basis that he was not responsible for the case management decisions nor did he have a transcript of the FHDRA to consult.

Full judgment available at: https://www.bailii.org/ew/cases/EWHC/Fam/2020/2396.html