Family Law Newsletter #4802.06.21
Issue #48 of Spire Barristers' Family Law Newsletter: edited by Chloe Lee and Philippa Pudney; news and Case Reviews by Francesca Massarella. Francesca is due to begin pupillage at Spire Barristers in September 2021.
Articles from around the web, Legislation updates and Case Updates from Care Proceedings and Financial Remedy matters. Subscribe to receive Family Law Newsletter notifications or email us to give us any feedback.
Resolution finds that toll of lockdown has caused one in four to contemplate leaving family lawRead More
Current provision of Domestic Abuse Perpetrator Programmes have stalled due to the pandemicRead More
Guidance / Updates
Government response to the Independent Inquiry into Child Sexual Abuse’s investigation report
D v E (Termination of Parental Responsibility)  EWFC 37
In the Family Court: The Honourable Mr Justice MacDonald
-A case concerning an application to terminate a father’s responsibility for the child pursuant to s.4(2A) of the Children Act 1989.
This case concerned G, aged 8. The mother made three applications to the court within this final hearing:
1. An application for a child arrangements order pursuant to s.8 Children Act 1989;
2. An application for a specific issue order to change G’s surname pursuant to s.8. Children Act 1989; and
3. An application by the mother to terminate the father’s parental responsibility for G pursuant to s.4(2A) Children Act 1989.
The Children’s Guardian made a further application under s.91(14) Children Act 1989 to prevent the father making any further applications to the court without permission.
The father did not attend the hearing and was not represented. He had persistently failed to engage with the proceedings. He failed to comply with the Court’s directions or make any contact with the Court prior to the final hearing.
The parents began their relationship in 2009 and separated in March 2014. G was born in 2012 and was 16 months old at the time of the parent’s separation. The father was named on her birth certificate. A final order was made in December 2014 to allow unsupervised contact between the father and G twice a week, following a report completed by Cafcass.
The father had a significant offending history, including harassment causing distress to the mother in 2014 and wounding with intent to do GBH using a vehicle in October 2015. He was also investigated for sexual offences against a child during 2015, which resulted in the mother stopping his contact with G from July 2015 onwards, which was supported by police and Children’s Services. The father was convicted of child sex offences in November 2016, resulting in a 2-year sentence of imprisonment and a 10-year Sexual Harm Prevention Order.
Upon his release from prison, he breached his licence conditions and was sent back to prison. The mother issued proceedings in September 2019 to remove the father’s parental responsibility for G. The Probation Service conducted a report and considered that the father presented a risk to intimate partners and children.
The Children’s Guardian recommended that there should be no contact between G and her father, that it was in G’s best interests for her surname to be changed and did not oppose the mother’s application to terminate the parental responsibility of the father. The CG also recommended that any applications the father wishes to make in future should require permission.
The mother contended that all of the applications she made would be in G’s best interests. Whilst the father was not before the Court, he had previously expressed his opposition to these applications.
The Court outlined the law to be applied to each of the four applications. In relation to the child arrangements order, the cases of Re C (Direct Contact: Suspension)  2 FLR 912, Re W (Direct Contact)  1 FLR 493 and Re J-M (A Child)  EWCA Civ 434 held that the following criteria should be applied:
i. The welfare of the child is paramount;
ii. There is a positive obligation on the State to take measures to promote contact before abandoning hope;
iii. However, the positive obligation is not absolute and the best interests of the child should also be considered;
iv. The Court should take a medium and long term view;
v. Contact should only be terminated in exceptional circumstances; and
vi. The key question is whether the Court has taken all necessary steps to facilitate contact as can reasonably be demanded.
It was also highlighted that the Court should consider any risk of harm, including domestic abuse, which the child might be subjected to.
The relevant legal test to be applied for an application to change a child’s name was set out at  and came from the case of Re W, Re A, Re B (Change of Name)  2 FLR 930. There were a number of key factors to consider, including the child’s welfare, the reasons for the initial name registration, factors which may arise in future, any change of circumstances of the child since the original registration, whether or not the parents were married, and the degree of commitment of the father to the child.
In respect of termination of parental responsibility, the case of Re D (Withdrawal of Parental Responsibility)  1 FLR 166 was cited at , where it was held that the child’s welfare ought to be the paramount consideration and whether making such an order would be better for the child than making no order at all.
Finally, the relevant legal test for an application under s.91(14) Children Act 1989 was set out at . The Court explained that there are multiple factors to consider for such an application, including the child’s welfare, the power should be used sparingly as a last resort and the degree of restriction should be proportionate to the harm it is intended to avoid.
At  Mr Justice MacDonald concluded that all four orders applied for should be made. At , he explained that ‘a particularly significant factor in this case…[was that] G has [had] no relationship with, or indeed any recollection of the father.’ Furthermore, in regard to the order under s.91(14), the Court held that in order to ensure that G could properly absorb the consequences of the making of the other orders, she needed to know that there was a guarantee that the father would not maintain any further consistent involvement in her life. Additionally, at , it was held that the father continued to ‘present an appreciable risk of serious harm to both G and to the mother.’ Consequentially, it was concluded that it was in G’s best interests to have no contact with her father.
All four applications were accordingly granted.
Full judgment is available at: https://www.bailii.org/ew/cases/EWFC/HCJ/2021/37.html
Potanina v Potanin (Rev 1)  EWCA Civ 702
In the Court of Appeal (Civil Division): Lady Justice King, Lord Justice Richards & Lord Justice Moylan
-An appeal against a decision not to grant leave to allow an application for financial relief to be made following an overseas divorce.
The husband and wife met as teenagers and married in Russia in 1983, where they remained for their entire married life. They had three adult children. The parties disagreed over when their relationship ended, with the husband arguing that they separated in 2007 and the wife contending that the separation was not until 2013, when the husband had formed another relationship and had another child. However, the Russian courts concluded that the year of separation was 2007.
The Russian courts approach divorce settlements by reference to an equal division of the parties’ assets, but the wife argued that this did not include division of assets held beneficially but not legally by a spouse. The wife was not entitled to any maintenance under Russian law.
The wife obtained a UK investor visa and bought a property in London in 2014, where she has lived since. She subsequently made the present application pursuant to s.15(1)(b) Matrimonial and Family Proceedings Act 1984 on the basis of her habitual residence in England, for leave to apply for further financial relief. The wife was initially granted ex parte leave to apply for financial relief. However, the husband then applied to set aside the grant of leave on the grounds that the judge had been misled in important respects as to facts, issues of Russian law and applicable principles of English law. The husband’s application was granted on the basis that the judge had been misled at the ex parte leave hearing.
At  it was held that the original application should have been heard inter partes, not ex parte. However, this in itself did not constitute the test for setting aside an earlier grant of leave. At  the Court outlined the approach to applications for leave, citing the case of Agbaje v Agbaje  UKSC 13. In that case it was held that the test for granting leave is that there must be a solid case to be tried, the power to set aside may only be granted where there is some compelling reason to do so and unless the applicant can deliver a “knock-out” blow then an application to set aside should be adjourned to be heard with the substantive application. The case of Traversa v Freddi  EWCA Civ 81 was also cited, where it was held that the focus of the test is to ensure that unmeritorious claims are filtered out.
Furthermore, following the case of Zimina v Zimin  EWCA Civ 1429, which was cited at , the Court ought to ensure that any hearing of an application for leave or setting aside is focussed purely on that issue and not on the substantive issues in the case. Accordingly, at  Lady Justice King concluded that ‘the judge was in error in embarking in a wholescale examination of the evidence in the way that he did’. He should have instead adjourned the matter to a full hearing to hear oral evidence from the parties as this could have avoided him being misled.
On making the decision to set aside the leave to apply, the previous judge pointed to three types of alleged misrepresentations:
1) It was alleged that the wife made three factual misrepresentations, including: providing the incorrect amount of child maintenance awarded, failing to inform the court that she had obtained legal advice in London prior to moving to the UK, and that the parties’ daughter was living with the mother at the time leave was granted;
2) It was also complained by the judge that he was given a ‘far from complete’ picture of the Russian litigation and was not shown the underlying documents, including Russian judgments; and
3) The judge argued he had not been referred to the appropriate paragraphs of the judgment in Agbaje, including where it was held that Part III Matrimonial and Family Proceedings Act 1984 should not be used as a tool to “top-up” provisions from a foreign court.
The present Court responded in the following way:
1) In relation to the factual misrepresentations, it was held that the legal advice the wife had sought was irrelevant as she could not be made to waive her legal privilege and disclose what advice was given. Further, at , Lady Justice King argued that whilst a judge might consider that ‘’had he known all he or she does now’ he would not have granted permission, but that does not mean that the judge had necessarily been ‘misled’ at that initial ex parte hearing’;
2) In relation to the Russian litigation representations, it was held that it could not be regarded as a material misrepresentation and would only have served to support the wife’s ‘needs’ argument; and
3) At  it was held that in relation to the alleged misrepresentations about English litigation, ‘there is [was] no basis for concluding that he did not properly consider the legislative purpose as identified in Agbaje.’
Lady Justice King held at  that ‘the judge’s analysis was tainted by the procedure adopted at the set aside hearing which…was too elaborate and lengthy, but…led to the making of serious adverse findings against the wife without the benefit of either oral evidence or any expert evidence as to Russian law.’ Therefore, the alleged deficits that the judge identified were not considered to have objectively misled him and therefore were concluded not to amount to a compelling reason to set aside the permission granted at the ex parte hearing.
The Court therefore concluded at  that the wife’s appeal should be allowed and the matter ought to progress to trial in order for the court to determine what, if any, order should be made for financial relief.
Full judgment is available at: https://www.bailii.org/ew/cases/EWCA/Civ/2021/702.html