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November Family Law Case Reports: Highlights

Date:1 NOV 2013
Law Reporter

Samantha Bangham - Family Law ReporterThis new column aims to draw readers' attention to the particularly significant cases reported in the Family Law Case Reports in order to ensure you don't miss out on any important developments and to direct you to those reports which merit full consideration and include the commentary of our resident family law experts.

The Family Law Case Reports provide an invaluable and comprehensive analysis of all the important cases in the field of family law and this month is certainly no exception. There appears to be a current trend of care and children proceedings which is reflected in this month's case selection alongside a handful of divorce and international cases.

There are a couple of children cases which have attracted much media attention although for very different reasons. The first judgment - Re J (Reporting Restriction: Internet Video) [2013] EWHC 2694 (Fam), [2013] Fam Law 1389, from the President attracted widespread publicity and is a must -read for practitioners engaged in cases of this nature. It involved the father posting video footage on the internet of social workers, assisted by the police, executing an emergency protection order upon the newborn child. The father, already in breach of reporting restrictions imposed on an older child no longer in the parents' care, had also posted abusive commentary about the professionals involved. The local authority application for a contra mundum injunction to run until the child's 18th birthday was successful, however, the President refused to restrict identification of the local authority or other professionals and of the video footage of the child's removal. In his judgment the President highlighted the considerable challenge posed by the internet to courts in protecting the privacy of children engaged in care proceedings. He also demonstrated his robust approach to transparency in the family courts and the importance of the ‘disinfectant' of publicity as an invaluable protective factor.

Continuing the theme of publicity, the judgments in Al-Hilli [2013] EWHC 2190 (Fam), [2013] Fam Law 1364 and [2013] EWHC 2299 (Fam), [2013] Fam Law 1366, concerned the two child survivors of a gun attack upon their family during a holiday in France. Their parents and grandmother were all killed in the attack and an ongoing police investigation had identified the paternal uncle as a possible perpetrator. The children had been placed with foster carers due to the initial uncertain safety of a family placement but the maternal aunt and uncle now sought the placement of the children with them. The first judgment deals with the publicity of the substantive judgment of the case and the competing rights of the children under Arts 2 and 8 and those of the media under Art 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. This too is an important judgment on this highly topical subject. The second judgment provides a brief summary of the outcome of the proceedings in relation to the placement of the children with maternal family members.

Pauffley J's decision in Re A (Vulnerable Witness: Fact Finding) [2013] EWHC 2124 (Fam), [2013] Fam Law 1372 follows the Supreme Court ruling in the same case - Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, March [2013] Fam Law 269 in which the Supreme Court justices upheld disclosure orders in respect of sexual abuse allegations made by a vulnerable 17-year-old girl. At the hearing the girl was assisted by an experienced intermediary in giving evidence and despite her apparent considerable distress was able to prove that her allegations were fundamentally true. The judge reminds readers of the enormous challenge of achieving the best evidence from vulnerable witnesses and the duty upon the judge to manage the process of evidence giving.

The Court of Appeal decision in London Borough of Tower Hamlets v R (X) [2013] EWCA Civ 904, [2013] Fam Law 1382, deals with the contentious subject of family foster carer allowances. The profound situation the applicant found herself in was caring for her two nephews and niece, all of whom suffered from significant physical and emotional difficulties and had been neglected by their parents. Previous foster placements had broken down due to the foster carers being unable to cope but recent reports showed the children were extremely well cared for by their aunt. The applicant challenged the local authority policy of paying kinship carers at a lower rate than unrelated foster carers, in particular in respect of children with disabilities. Unrelated foster carers were entitled to an uplift, 50% of which was to be used towards the child's support and 50% constituted a reward or fee element. Family foster carers were not entitled to the latter. The claim was upheld at first instance and the Court of Appeal rejected the local authority appeal. The judgment reiterates the approach that differentials in foster carer allowances could not be justified on the basis of a family tie. The local authority was given time to adjust its policies in order to reflect that principle.

In the divorce arena a notable judgment reported in this month's Family Law is UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] EWCA Civ 771, [2013] Fam Law 1378. Mostyn J provides comprehensive guidance to applications for freezing orders and provides examples of freezing and search orders. In the judgment Mostyn J stresses that without notice or short notice applications should not be the norm and could only be justified in exceptional circumstances in accordance with stringent safeguards. This is a very useful judgment drawing together all of the threads of established principle.

In the Family Division the divorce and associated proceedings in Tchenquiz-Imerman v Imerman [2012] EWHC 4277 (Fam), [2013] Fam Law 1375 continues to gain momentum. This judgment from Moylan J deals with an application for joinder by the husband's adult children who were beneficiaries under a number of family trusts which the wife sought a variation of in order to satisfy her claim for financial remedy. The beneficiaries had previously supported the trustees in declining party status in overseas proceedings but now sought to participate in the English proceedings themselves. While it would have been beneficial for the trustees to have been joined, the next best course was for the beneficiaries to be involved and assist the court in the investigation and resolution of issues in the case.

On an international note, the judgment of Re K (Brussels II Revised: Art 15) [2013] EWCA Civ 895, [2013] Fam Law 1379 concerned Slovakian parents who fled their home country to evade the Slovakian social authorities. During care proceedings the issue of whether welfare decisions in relation to the child should be determined in Slovakia arose. In the Family Division Mostyn J directed a transfer of the proceedings to Slovakia and jurisdiction was accepted. The children's guardian's appeal was unsuccessful. It was found that the judge misdirected himself on the interpretation of Art 15 of BIIR in importing a domestic law approach of Wilson J in M v M (Stay of Proceedings: Return of Children) [2005] EWHC 1159 (Fam), [2006] 1 FLR 138. However, that error had no bearing on the appropriate result which was to transfer proceedings to the Slovakian court. The appeal was dismissed.

November's issue of Family Law will be arriving with subscribers from 28th October. In addition to the case reports, Family Law also covers the latest news of legislative change, invaluable articles and news items written and compiled by experts for the practising family law professional. If you don't already subscribe you can do so here, for either the print or online version, or alternatively sign up for a free online trial.

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.