Monday, 28 October 2013

Family Law ~ a torrent of recent cases

There has been a torrent of recent family law cases.  Here is a compilation of some of the recent judgments. It is not a comprehensive list.  Even for the family law specialist, this is a formidable amount of reading.  There is also the View from the President's Chambers (Issue No. 7) and the new Family Court Guide.

Supreme Court:

J (Children) [2013] UKSC 9 -  The Children Act section 31(2) threshold is an important measure to protect a family from unwarranted intrusion while at the same time protecting children from harm. The wording of Section 31(2) has been the subject of six appeals to the House of Lords and Supreme Court. Those cases have consistently held that a prediction of future harm has to be founded on proven facts: suspicions or possibilities are not enough. Such facts have to be proved on the simple balance of probabilities.  See Family Law Week.

B (A Child) [2013] UKSC 33. - a challenge to a care order made with a view to adoption.  Very important with regard to application of Article 8 of the European Convention on Human Rights and the role of appellate courts when an order is challenged on the basis of proportionality.   The making of an order which removed a child from its natural family was a measure of last resort, only to be adopted where it is "necessary" and when "nothing else will do".   Analysis of the case via Family Law Week.

A (Children) [2013] UKSC 60 - whether the High Court has jurisdiction to order the "return" to this country of a small child who has never lived or even been here, on the basis either that he is habitually resident here or that he has British nationality.   Analysis of the case via Family Law Week.

Court of Appeal (Civil Division):

Re B-S [2013] EWCA Civ 813- care plans for adoption - analysis of pros and cons required

Re P [2013] EWCA Civ 963

G (A Child) [2013] EWCA Civ 965- the impact of the UK Supreme Court decision in B (A Child) on the appeal process in care proceedings

W (A Child) and H (Children) [2013] EWCA Civ 1177 - application of Re B-S

S (A child) [2013] EWCA Civ 1254 - appeal against a finding of sexual assault

C (A Child) [2013] EWCA Civ1257

F (A Child) [2013] EWCA Civ 1277 - a second appeal against the making of a placement order in relation to L (aged 4)

High Court (Family Division):

ML (Use of Skype Technology) [2013] EWHC 2091 (Fam) - Peter Jackson J - use of Skype to receive evidence from remote parts of the world

Re Al-Hilli (Children) [2013[ EWHC 2190 (Fam) - Baker J - media presence in proceedings

NN and ZZ [2013] EWHC 2261 (Fam) - Peter Jackson J - process for gathering evidence from non-English speaking witnesses

IA (A Child) [2013] EWHC 2499 (Fam) [2013] EWHC 2499 (Fam) - Pauffley J - experts to answer specific questions - over-inclusive reports not acceptable

DF And GF (Children - Placement Order Or Special Guardianship Order), Re [2013] EWHC 2607 (Fam) (22 August 2013) - Pauffley J - whether a placement order or a special guardianship order should be made and level of contact between the youngest child, her mother and older sister.  

J (A Child), Re [2013] EWHC 2694 (Fam) (05 September 2013) - Sir James Munby - questions about the extent to which the public should be able to read and see what disgruntled parents say when they speak out about what they see as deficiencies in the family justice system, particularly when, as here, their complaints are about the care system. The case also raises important questions about how the court should adapt its practice to the realities of the internet, and in particular social media.

MM (A Child : Long Term Fostering / Placement With Family Members : Wishes and Feelings), Re [2013] EWHC 2697 (Fam) (22 August 2013)

AW (A Child: Application to Revoke Placement Order: Leave to Oppose Adoption) [2013] EWHC 2967 (Fam) (16 August 2013) 

Lancashire County Council v R[2013] EWHC 3064 (Fam) - Mostyn J - fact finding judgment relating to injuries sustained by baby N - held to be accidental. 

Re AK and MK (Fact finding)(Physical Injuries) [2013] EWHC 3158 (Fam)
- Pauffley J - fact finding hearing relating to injuries to baby girl 

G (A Child: Intractable Contact) [2013] EWHC B16 (Fam) (25 September 2013)

My notes:

Here are some notes on some of the above from my own notebook ...

NN and ZZ - Peter Jackson J considered how evidence should be taken from non English speaking witnesses. ML (Skype) the same judge allowed use of Skype to gather evidence from a witness in Colombia - the witness gave evidence for an hour at cost £150 whereas a full ISD link would have cost £1200.

Practitioners must note - Pauffley J in IA a case concerning reports relating to injuries sustained by child. Critical remarks about over-inclusive and expensive reports. (I hope this judgment will not deter an expert from drawing attention to something noticed but not asked about).

Also note Re B-S where Court of Appeal expressed frustration at the lack of analysis of the pros and cons of an adoptive placement. 

Re AK and MK (Pauffley J) see paras 19-23 re burden and standard of proof in care proceedings where non accidental injury is alleged.  (A neat summary).  Judge made a 'global finding' that the injuries were inflicted and not accidental.

Lancashire County Council v R (Mostyn J) - para 8 for summary of legal principles applicable for a case NOT involving a pool of possible perpetrators of injury. Interesting comments from judge re expert opinion changing over time especially re 'subdural bleeding' - miscarriages of justice perpetrated in reliance on now discredited orthodoxy that presence of subdural bleeding in a recently born baby was strongly indicative of abuse (unless birth had been particularly traumatic).

The Re B (A child) UKSC case will need separate analysis + Court of Appeal decisions which have already considered and applied Re B.


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  2. I can only imagine how much more difficult a divorce must be when there are children involved. I hope I will never find myself in that situation. It's great that there is such a thought-out, organized law system to help with these cases though. I'm sure it helps keep things a bit more civil than they otherwise would be.