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Samantha Bangham’s Week in Cases 10 May 2013

Date:9 MAY 2013
Law Reporter

Samantha Bangham - Family Law Reporter A welcome quieter week of family cases to ease us all back into the swing of things after the bank holiday. A mid-week offering from the Court of Appeal in the judgment of Vince v Wyatt offered some variety in what has otherwise been a care-heavy week.

The Court of Appeal in the financial remedies judgment of Vince v Wyatt [2013] EWCA Civ 495, [2013] FLR forthcoming, considered the case of a husband and wife who were married in 1981 for just 3 years with a divorce following in 1992. Neither had any assets or income. Nineteen years after the divorce the wife made an application for financial remedy in circumstances where both parties had formed new relationships and had further children. The husband, with the assistance of his new partner, had formed a highly successful wind turbine company. The husband’s application to strike out the claim pursuant to r 4.4(1) of the Family Procedure Rules 2010 was refused and the wife was granted an A v A order of £125,000 to finance her claim. On appeal the judge was found to have fallen into error in his interpretation of r 4.4(1). Regard had to be paid to all relevant considerations and the judge had to exercise his case management powers not just to protect against the greater prejudice but also to husband the resources of the court. The reality that had to be faced was that the husband at trial might well defeat the application and find the prospect of recovering not only his costs but also those of an unsuccessful applicant fraught with difficulty. On the exceptional facts, the A v A order should not have been made. The rules of striking out contained in the FPR 2010 were markedly similar to those in the CPR 1998 but a significant difference between FPR 4.4(1)(b) and CPR 3.4(2)(b) was that there was no limitation period in family cases although long delay may constitute a ground for dismissing cases. While there was no statutory bar to bringing claims 10, 20 or 30 years after divorce the court should not allow parties to be harassed by claims which were issued many years after divorce and had no real prospect of success. It was an abuse of process to bring such proceedings and the present case was a classic example of that. The court warned that an application to strike out a claim under FPR 4.4(1)(b) would only succeed in rare and exceptional cases. The court would take a very dim view of parties who applied to strike out merely on the grounds that the other side's case was weak or unlikely to succeed and could order the applicant to pay costs on an indemnity basis.

The case of Re CB (Adoption Proceedings: Lack of Care Order) [2013] EWCA Civ 476, [2013] FLR forthcoming, raised an important procedural point as to whether it was legally permissible for the local authority to present the case to the adoption panel and issue an application for a placement for adoption order where the child was not subject to an interim care order but was placed by virtue of s 20 of the Children Act 1989. The case involved the now 4-year-old child who was accommodated pursuant to s 20 of the Children Act 1989 after she was found aged 21 months at home alone and in a neglected condition. The local authority was granted a final care order and the plan for adoption was approved but permission to appeal was granted to determine the procedural point. There was no authority for the proposition that a child who was accommodated but not subject to an interim or final care order was to be excluded from the placement order decision-making process. The local authority was obliged to obtain a decision from the adoption agency decision maker and that required a recommendation by the adoption panel. There could be no criticism of the local authority that they asked the panel for a recommendation which led to a decision and application for a placement order. The appeal was dismissed. The local authority referral to the adoption panel was lawful, the procedural requirements had been complied with and, therefore, the court had jurisdiction to consider the placement applications.

In another care case, the Court of Appeal in Re L (Interim Care Order: Prison Mother and Baby Unit Placement) [2013] EWCA Civ 489 was concerned with a mother who, while pregnant, received a 3-year prison sentence for burglary. Her two older children had been removed from her care and following the birth the mother was refused the opportunity of caring for the baby at the prison mother and baby unit. The judge found that in the light of the lack of evidence of the mother’s ability to change, it would not be in the child’s best interests to place him in her care. An interim care order was granted. The mother’s appeal was allowed. The judge had been incorrect in his approach. The interim care regime was designed to ensure the child was kept safe in the period prior to the court’s full consideration of the local authority care application. The focus of the interim care hearing was upon what may happen to the child during the interim period if he or she continued to live with a parent. The purpose was not to evaluate the longer term future. In the short term there was no danger to the child’s safety and there was little doubt that if the mother was to have the best chance of caring for him she needed the opportunity to get to know him. The interim care order was substituted for an interim supervision order. The baby would now move from the foster placement to the mother and baby unit at the prison where the mother was currently incarcerated.

As is always the case, I was thrilled that we had a case this week where family law and criminal law overlapped. The judgment in R v AR [2013] EWCA Crim 591 involved a father, who had a history of paranoid schizophrenia and suffered a deterioration of his mental health which caused him to stab his 7-month-old child in the chest. The father was charged with attempted murder, wounding with intent and unlawful wounding but was found not guilty by reason of insanity. Extensive medical reports were obtained but formed no consensus of opinion as to the father’s exact diagnosis and as to further treatment. The father was sentenced to a supervision order for 2 years under s 5 of the Criminal Procedure (Insanity) Act 1964 and made subject to a restraining order under s 5A of the Protection From Harassment Act 1997 for a period of 5 years. The father’s appeal in relation to the restraining order was allowed. For the purposes of s 5A of the 1997 Act the special verdict found in this case equated to an acquittal and the events failed to satisfy the test of s 7 of the Act. While not underestimating the severity of the father’s actions, they were committed while he was suffering from extreme ill-health and it could not be said that the relationship between the father and child should be cut off indefinitely without regard to the possibilities of supervised or indirect contact. The 5-year duration of the order, given the child’s age, would preclude any sensible resumption of the relationship.

In other ‘news’, I have been glued to the Sky series It’s Love, Actually. While not family law related in any way it does delve into the world of relationships by capturing the responses given by couples on a number of potentially argument-fuelling subjects such as money, in-laws and housework. The couples come from a wide range of backgrounds and socio-economic groups and unsurprisingly the time-old stereotypes are raised such as, the men don’t do enough house work and the women spend too much money. While this is a light-hearted, humorous look at relationships, I can’t help but watch thinking that in a few years, these funny little quirks, will prompt a trip to the divorce solicitors and before they know it they will be arguing over lawn mowers, mops and brass dolphins (to name a few of the memorable items our PSL’s have highlighted in their own experiences in practice!). I think I may be becoming jaded….!

Samantha Bangham is the Law Reporter for Family Law Reports. Judgments can be submitted for considerastion 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.