Family Law

Family Law Newsletter #5204.10.21

Legal 500

Members of Spire’s Family Team have been ranked in the Legal 500 2021 for Family and Children Law with chambers ranking as a Tier 2 set. See the full rankings here

Guidance / Updates

Digital Divorce Platform to become mandatory

Call for evidence on dispute resolution in England and Wales extended to 31 October 2021

Case Summaries

A and B (Recission of Order Change of Circumstances) [2021] EWFC 76

– In the Family Court: The Honourable Mr Justice Cobb

– A case concerning applications made by two young people to rescind or vary an order made for their immediate return to the UK from Spain.

A, aged 17 years 7 months and her brother, B, aged 12 years 4 months made applications in the High Court under Part 18 Family Procedure Rules 2010 where they sought disclosure of documents and party status in existing proceedings between their parents. In the present hearing, applications were made for the following substantive relief:

i) To rescind or vary an order made at the Central Family Court which ordered their immediate return to the UK from Spain, pursuant to 31F(6) Matrimonial and Family Proceedings Act 1984 (“the 1984 Act”);

ii) In the event that the order was rescinded or varied so as to remove the requirement for the children’s return, for the transfer of proceedings issued in this jurisdiction to Spain under Article 15 of the Council Regulation 2201/2003 (“BIIR”); and

iii) In the event that the order was rescinded or varied, but transfer refused, a welfare-based determination that the children may remain living in Spain with their father.

The Applicants are the two children of the Respondent parents. The father is Belgian, the mother is Spanish. Both A and B were born in Spain and are Spanish citizens. The family lived in Spain until 2010 when they all moved to live in London. The parents separated in 2015 and the father returned to Spain, whilst the mother remained living in London. Divorce proceedings in England followed, as did contested proceedings under the Children Act 1989 (“CA 1989”). In 2017, final orders were made which provided for the children to live with their mother and spend time with their father “on such occasions as are agreed”.

The children subsequently visited their father in Spain for a summer holiday in 2017 but did not return to the mother as planned, so the mother issued proceedings under the 1980 Hague Convention in Spain and an order for their return was made in March 2018. The children returned to England in September 2018. In 2019, the children again visited Spain, accompanied initially by their mother, visiting the maternal grandmother (“MGM”). During this visit, A and the mother had a serious argument and A went to her father’s home. Upon her return to her mother, further arguments followed and A complained to the police about her mother, alleging mistreatment. A was removed from her mother’s care and placed in institutional care in Spain for 3 months.

A was placed in the temporary care of her father in November 2019, pursuant to an order of the Valencia Court, where she remained. In April 2020, B and his mother visited the MGM and B later telephoned his father, alleging that his mother had assaulted him. The police became involved and moved him into his father’s care, where he also remained. In December 2020, the mother issued a further application for the return of A and B from Spain to this jurisdiction, which was granted.

At [26] the relevant law was set out. Section 31F(6) provides that the family court has the power to vary, suspend, rescind or revive any order made by it. The case of Sharland v Sharland [2015] UKSC 60 was referred to, where it was held that whilst 31F(6) does not suggest there is a limit to how the court’s power may be exercised, it should be subject to “principled curtailment”. N v J [2018] 1 FLR 1409 was also cited as MacDonald J summarised the basis for intervention as being that an applicant must be able to present a relevant change of circumstances or material non-disclosure welfare to justify setting aside an order.

At [39], the court set out the relevant principles by which the court ought to determine whether to exercise the power to rescind an earlier order as follows:

i) Litigants should not be permitted to have “two bites at the cherry” by applying to the same court in relation to the same matter;

ii) It is important for the court not to ‘subvert the role of the Court of Appeal’;

iii) The first point of reference should be whether one of the traditional grounds for proposed review has been established: fraud, mistake, innocent misstatement of facts or material non-disclosure; a new event or material change of circumstances which invalidates the fundamental assumption the order was made on; if the order contains undertakings; or if the terms of the order remain executory;

iv) Where an application is made in relation to an order concerning children’s welfare the court could approach the assessment of the traditional grounds for review and make its determination with ‘appropriate flexibility and with consideration to what is likely to be in the best interests of the child.’;

v) Section 1(1)(a) of CA 1989 is not engaged; and

vi) Where Section 31F(6) is deployed in order to re-open a previous fact-finding exercise, the three-fold test set out by Peter Jackson in Re E, should be followed.

It was submitted on behalf of the Applicants that there had been a material change of circumstances since the order was made, specifically that:

i) Whilst it was known that the children were resistant to returning to England, these views had ‘hardened since December 2020’, which amounted in itself to a ‘material change of circumstances’; and

ii) Given A’s age (17 years 7 months), it would have been unconscionable to uphold the order for her return to this country, giving rise to a real possibility of a separation of the siblings, which was not a factor which appeared to be relevant, or taken into consideration when the order was made.

Both children were very clear in their wishes that they did not want to return to England and wanted to remain living with their father in Spain. Several cases were referred to in support, including Re P (Abduction: Minor’s Views) [1998] 2 FLR 825, which demonstrated that the courts have previously been prepared to give proper weight to the strongly held views of competent children.

At [46] the court held that the hardening of the views of the subject children post-hearing did represent a change of circumstances such as to justify the deployment of section 31F(6), particularly where their recent expressed views not only materially challenged the earlier ordered outcome but also put into question the Family Court’s jurisdiction to make the order at all.

In relation to the issue of sibling separation, the court cited the case of Re K (Children) [2014 EWCA Civ 1195, where it was held that the separation of siblings with an existing bond ‘can be one of the most traumatic elements of their experience.’ It was held that the previous judge had failed to consider the issue of sibling separation at all.

The mother’s position was that the children’s views were strongly influenced by the father and had been materially affected by the fact that they had not seen her for several months. She also challenged the assertion that the children had a close sibling bond.

The father supported the applications of the children.

The court accordingly held that the previous order ought to be rescinded on the basis that the circumstances had changed since December 2020 and that it was right to request a court in Spain to assume jurisdiction and for the case to be transferred to a court there.

Full judgment is available at: https://www.bailii.org/ew/cases/EWFC/HCJ/2021/76.html

C (A Child) (Abduction: Article 13(b)) [2021] EWCA Civ 1354

– In the Court of Appeal (Civil Division): Sir Andrew McFarlane, Lord Justice Moylan & Lord Justice Newey

– An appeal concerning the dismissal of an application for summary return of a child to Poland.

The parents and C, aged 8, were all Polish nationals and had always lived in Poland. They were all living together in Poland prior to C’s, admitted, wrongful removal in September 2020. The parents were married in 2009. The mother issued a petition for divorce in Poland in 2019 and it was later agreed that the father could have contact with C every other weekend. The mother and C secretly left Poland on 17 September 2021 and the father commenced proceedings under the 1980 Convention on 29 October 2020.

The previous judge heard that the mother had fled Poland due to physical, verbal, and sexual abuse perpetrated by the father to the mother. However, the judge referred to the fact that she had not heard oral evidence from the parties tested by cross-examination, so could not make findings in respect of the disputed evidence. The Cafcass officer found in respect of C that her maturity was consistent with her age and that her views should have been taken into account, which were that she did not want to return to Poland and wished to remain in England with her mother.

Despite the judge not making any findings, she did comment later about an incident relied upon by the mother that ‘the father felt no restraint about attacking the mother in front of others’, and in relation to another incident that it ‘showed the father’s lack of control.’ In relation to C’s objections, the judge decided that C did object to returning to Poland and noted that this gave rise to a discretion as to whether to make a return order. The judge also stated that there would be harm caused to C if the mother was abused by the father on their return. The ultimate conclusion was that a return order should not have been made because there were grave risks to C if she were to be returned.

In the present hearing, on behalf of the father, it was submitted that:

I) The judge wrongly made findings of fact; did not look at the future; and did not evaluate the nature or gravity of the risk to C arising from a return to Poland. Therefore, he submitted that the Judge failed to consider the “specific risk or situation which was said to establish the Article 13(b) defence”;

II) The judge failed to apply the established principle that the court should accept that the authorities of the requesting State are ‘equally adept at protecting children’; and

III) The judge’s failure to analyse the nature and degree of the alleged risk meant that she did not explain why the protective measures available would not be effective to protect against any such risk.

On behalf of the mother, it was submitted that the judgment ought to have been upheld, submitting that the Judge sufficiently set out the relevant legal principles and reached a decision which was open to her. It was argued that the judge had made clear she was not making any findings of fact and that the protective measures suggested were not sufficient on the evidence of the Polish law and the father’s actions and attitude.

At [49] the court held that ‘Article 13(b) is forward looking’ and citing the case of Re S (A Child) (Abduction: Rights of Custody) [2012] 2 AC 257, found that the critical question is what would happen if the child was returned. Further, it was highlighted that the risk arising from the child’s return must be grave and an analysis of the nature and degree of the risks needed to be undertaken to determine whether the required grave risk had been established.

It was held that the previous judge had done neither of these things. Further, it was highlighted that unless the court had properly analysed the nature and severity of a potential risk, it could not properly assess whether the available protective measures sufficiently address or ameliorate that risk. It was also considered that whilst the judge had not made findings formally, on a number of occasions it appeared that she had done because of terminology she used, such as referring to a “mass of evidence…that the father was abusive.’

The appeal was accordingly allowed and remitted for a rehearing. A new determination of the application could not be made because the court felt it had not heard full submissions or been taken through the evidence sufficiently.

Full judgment is available at: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1354.html

Seminars

Our barristers host regular online seminars aimed at Children and Adult Social Care professionals throughout the calendar year, covering a range of topics including the latest legislation and practical guidance. We also host training seminars and webinars in Education Law. All seminars are held live via Zoom Webinars.

Find our latest programme of seminars and training here.