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Edward Bennett
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Samantha Bangham’s Week in Cases 29 November 2013
Date:29 NOV 2013
Law Reporter

Samantha Bangham - Family Law Reporter Aside from the family law cases, it has been a terribly exciting week at the Jordan’s office here in Bristol due to the Christmas decorations making an appearance. A Twitter photo may be on offer for those looking for ideas for their own offices of how (or not) to decorate at this festive time! In addition there have been many, many new cases of which I provide a few highlights.

My personal favourite this week is the judgment in Young v Young [2013] EWHC 3637 (Fam), [2014] FLR forthcoming, which is definitely starting to get a soap opera feel about it. Despite a ‘final’ judgment being given I have a suspicion this won’t be the last we hear from the Youngs. The essential determination was that while the husband was not penniless as he had claimed, he certainly didn’t have access to the sort of wealth the wife was asserting. Moor J found that rather than the husband having many millions of pounds hidden away, he had assets of £40m following his apparent financial collapse. On a sharing basis the wife was entitled to £20m which, neatly, also equated to her reasonable needs. The husband was, understandably, criticised for his failure to make full disclosure for which he had received a prison sentence but the wife was also criticised for the number of applications she had made during the 7 years of litigation. The wife had amassed litigation costs of £6.4m which had undoubtedly been exacerbated by the complexity of the case and the husband’s litigation conduct but had also been at the limits of what was appropriate in even this exceptional case.

In the Court of Appeal, Sullivan, Ryder and Macur LJJ, were engaged with the case of Re C (Due Process) [2013] EWCA Civ 1412, [2014] FLR forthcoming, in which the parents of the 4-year-old child were in dispute over contact arrangements between the father and child. The mother sought a residence order and a prohibited steps order preventing the father from removing the child from her care or from nursery due to allegations that the father would remove the child, concerns for his mental health, domestic violence and his lack of accommodation. At the hearing the mother did not give evidence to substantiate her allegations and was not questioned by anyone. There was, therefore, no evidence from mother for the father to meet and he was afforded no opportunity to test the direct evidence of domestic violence. The only evidence came from the family court advisor who was the complainant in criminal proceedings against the father. The mother was granted the orders and the father was permitted only indirect contact.

The father’s appeal was allowed. There had been an extensive catalogue of errors and repeated breaches of the FPR 2010 and other statutory codes. The allegations had been treated as fact but no fact-finding hearing had taken place and the welfare evaluation was, therefore, based on a false premise. The father had been denied natural justice at almost every stage of the proceedings.

In the widely-publicised case of Surrey County Council v Al-Hilli and Others [2013] EWHC 3404 (Fam), [2013] FLR forthcoming, the legal position was confirmed of the two young survivors of a gun attack in France in which their parents, maternal grandmother and a passing cyclist were killed. The children were initially placed with foster carers due to the nature of the ongoing police investigation but were subsequently moved to the home of their aunt and uncle and the judgment on that issue was published due to the public interest in the welfare of the girls. All parties were now in favour of a special guardianship order but in line with the authority of Re B-S, all options were considered in conjunction with the welfare checklist and the judge concluded that a special guardianship order was, in fact, the right outcome in view of the fact that the girls needed to retain their family links and identity while also having a degree of permanence and security.

In a further judgment, A v A [2013] EWHC 3554 (Fam), [2013] FLR forthcoming, following the Supreme Court decision of Re A (Jurisdiction: Return of Child) [2013] UKSC 60, [2014] FLR forthcoming, the father failed to comply with a return order in respect of the four children, aged 12, 11, 8 and 3 to return the children to the UK from Pakistan. He claimed there were problems with obtaining a passport for the youngest child but the judge ordered either for him to send the older three children back and for him to return later with the youngest child or for them to all travel together. Instead, the father and three older children returned while the youngest child remained in the care of the paternal grandparents. The older children had had some contact with the mother since their return but they remained fearful of her and their engagement with her was limited. The judge determined that the threshold had been crossed under s 31 of the Children Act 1989 due to the father’s removal of the children and she rejected the father’s claim that the mother had abandoned them but found that the father had sought to exclude the mother from their lives.

In considering an interim care order the judge concluded that the children had been used as pawns without regard to their emotional welfare by the father. He had only complied with the court order under the threat of a financial penalty. Daily contact would not be an improvement and would be distressing for the children. An interim care order was granted with provision for the children to be removed as nothing else would do. The youngest child would be placed in the mother’s care upon his return to the UK.

The judgment in Wiltshire County Council v F and Others [2013] EWHC 2747 (Fam), [2014] FLR forthcoming, is an interesting read involving the deception of a man and woman who claimed the young boy living with them was their child. DNA testing revealed he was not but that he did have some biological connection. The woman accepted she was not the mother but claimed she had given birth to a child in Ghana who had died and she was encouraged by her husband’s mother to take care of his younger sibling and take him back to the UK. The father claimed he was not informed. A forensic odontologist placed the child’s age at 15–16, much older than asserted by the man and woman, while a paediatric endocrinologist concluded he was approximately 14. On the facts his entry to the UK was illegal and he was liable to be removed. The local authority, abandoning its case for a care order, now sought a declaration as to the child’s age. The guardian invited the court to hear evidence and decide if an order should be made. After hearing the evidence the local authority conceded that a supervision order should be put in place. T

he judge found that the child was 14 years old and that the husband and wife’s evidence on all aspects of the child’s age, identity and background had been concocted. He did not accept that the husband knew nothing about it. Their deception had caused the child significant emotional harm although their physical care of him had been very good. It was more likely than not that to some extent they had involved the child in the deceit causing further psychological damage. The recommendation of the professionals was accepted that it was in the child’s best interests to remain in the care of the husband and wife under a residence order and 12-month supervision order.

For full coverage of this week’s cases please click here.

Samantha Bangham is the Law Reporter for Family Law Reports. Judgments can be submitted for consideration via: editor@familylaw.co.uk.

She can be contacted on Twitter: @ladybangham, or connect with her on LinkedIn.

The content of this article should not be considered as legal advice.