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Jade Quirke
Family Solicitor
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Samantha Bangham’s Week in Cases 22 November 2013
Date:25 NOV 2013
Law Reporter

Samantha Bangham - Family Law Reporter Sadly, there doesn’t seem to be much call for my family law reporting services on the beaches of Antigua and, therefore, I am back at my desk, refreshed, recharged and with a bumper crop of cases for you. While I have been sipping on cocktails beneath a palm tree the family courts have remained extremely busy!

Topping the bill this week is a Court of Appeal decision on jurisdiction. Re B (Care Order: Jurisdiction) [2013] EWCA Civ 1434, [2013] FLR forthcoming, concerned care proceedings in relation to a 5-year-old child who was habitually resident in Sweden. On appeal it was held that the questions which had been asked of the European Judicial Network judge had been wholly inappropriate and potentially constituted a breach of Art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. The response from the Swedish judge, effectively declining jurisdiction, was not sufficient to grant jurisdiction to the English court under BIIR. Article 17 of BIIR required the English court to make a declaration of no jurisdiction.

Pausing here in the arena of BIIR, the final determination of whether to grant a return order in A v A [2013] EWHC 3298 (Fam), [2013] FLR forthcoming, has now been made following the Supreme Court decision, [2013] UKSC 60. Parker J decided that on the facts of the case, England was the most appropriate forum in which to determine the children’s future care arrangements. The older children had lived most of their lives here, the father was born here and if proceedings took place in Pakistan the mother would face a number of practical problems including opposition from the father’s family with little support from her own family. A return order was made in respect of all four children. The father’s application to vary a freezing order was denied. His evidence as to his resources had been unclear and while the order remained in place it offered security for the father’s compliance with the return order.

The Court of Appeal, in the case of Re W (Fact-Finding: Hearsay Evidence) [2013] EWCA Civ 1374, [2013] FLR forthcoming, was engaged in an appeal from a fact-finding hearing in care proceedings in relation to nine children which determined that the father had sexually abused the mother’s older child, now 28, on several occasions from when she was a child. The parents’ appeal was based on the judge’s approach to the evidence, primarily hearsay evidence gathered by the local authority. The principal source of evidence was what the eldest child had told social workers which they reported to the court. Despite the judge making orders for the filing of evidence, no statement was produced and the eldest child did not attend court to give evidence. Nevertheless the hearing proceeded without further discussion. The Court of Appeal, supported by a great deal of authority on the issue of hearsay evidence in children cases, found that the judge had erred in her treatment of the evidence. Those authorities emphasised the need for courts to consider measures that could be taken to assist witnesses in engaging with the court process.

Also in the Court of Appeal, the judgment of Duncan v Duncan [2013] EWCA Civ 1407, [2013] FLR forthcoming, was an appeal from financial remedy proceedings. On the day before the final hearing counsel for the wife realised that he had acted for the husband in financial proceedings in relation to his first wife. Both solicitors and the district judge were informed but the wife wished for counsel to continue to represent her, a course to which the husband also consented. The husband’s appeal was allowed on the basis that it was questionable whether he had given fully informed consent and that some of the matters upon which he had been cross-examined created an inescapable conflict of interest. While counsel had not deliberately misled any party the perception of fairness was at the heart of the appeal. The wife appealed. In taking into consideration the principle in Prince Jefri Bolkiah v KPMG [1999] 2 AC 222 and para 603D-F of the Bar Council Code of Conduct, the Court of Appeal found that the husband’s complaint was not that information from previous proceedings was used against him but that his cross examination took him by surprise and undermined his case. The fact that counsel had used skeleton arguments from the previous proceedings had no evidential weight and there had been no opportunity to use them in order to advance the case. The husband’s appeal was opportunistic. The wife’s appeal was allowed and the original order restored.

Meanwhile in the Family Division, His Honour Judge Clifford Bellamy, sitting as a High Court judge was once again engaged in the case of Re K (Wardship: Publicity) (No 2) [2013] FLR forthcoming. Readers will recall that this case concerned the breakdown of the adoptive placement of, the now, 16-year-old girl of which the parents wished to publicise and share their experiences. They now sought leave to publish a judgment regarding the provision of therapy for the girl, permission to identify themselves as MG and FG, the parents of K (the pseudonyms given in previous judgments) in their conversations with the media and a declaration that it would not be a contempt of court for them to publish, by discussing with the media specific information relating to their history and experience of parenting a child suffering from reactive attachment disorder, of working with the local authority and engaging with the Family Justice System.

In relation to the publication of the judgment concerning therapy in the interests of transparency the balance fell in favour of publication, subject to a minor redaction concerning the girl’s behaviour. The girl’s clear and longstanding need for therapy remained unmet. There was nothing preventing the adoptive parents from identifying themselves by reference to the pseudonyms providing they did not reveal their true names, which, was provided for in the rubric to the judgment. With regard to the request for a declaration, any relaxation of the restrictions imposed by s 12 of the Administration of Justice Act 1960 had to be clear and specific. Since the court did not know the exact words which would be used by the parents in conversations with the media it was difficult to define any clear terms. There was already sufficient factual material in the public domain to permit the parents to discuss the issues meaningfully and any further relaxation of the restrictions was not necessary.

Also, in the Family Division, Theis J was engaged in the case of London Borough of Ealing v Connors [2013] EWHC 3493 (Fam), [2013] FLR forthcoming. The two girls, aged 14 and 11, were made subject to emergency protection and recovery orders when they went missing. The local authority was already involved with the family due to concerns regarding domestic violence, attendance at school and medical appointments and allegations that the 14-year-old girl had been violently assaulted by her 16-year-old brother and father. The mother claimed to have been told that the girls were in Manchester with relatives but she failed to deliver them to the court or provide contact information. The mother was remanded in custody as she accepted she had had opportunities to produce the children but failed to do so as she feared they would be taken into local authority care.

It was now clear that the mother’s evidence had been inherently unreliable and inconsistent. In addition it was also clear that it had been within the mother’s power to produce the girls to the local authority but failed to do so. She was in breach of the collection order and her ongoing duty to provide information as to the whereabouts of the children. After considering the mitigating circumstances the judge commented that it was an extremely serious matter when the court was unable to trace the whereabouts of children, and it was particularly serious when the court was unable to do that because the person who could assist in that would not provide the help to locate the children. The very least sentence which could be imposed was one of 28 days’ imprisonment. In view of the fact that there had been no reliable co-operation with the court that sentence could not be suspended.

Finally in the case of A Local Authority v X and Another [2013] EWHC 3274 (Fam), Holman J considered the position of the 14-year-old girl, who had been born in England and travelled with her father and brother to Pakistan where she underwent a marriage ceremony to a 24-year-old man. The girl became pregnant and the baby was born in England where the local authority initiated care proceedings in respect of both the girl and the baby. During the proceedings, the local authority, supported by the guardian, sought a declaration of non-recognition of the marriage. The court, finding that the girl was domiciled in England at the time of the marriage and, therefore, that the Marriage Act 1949 applied, held that the marriage was void due to the girl being under 16 at the time. The judge held that should the girl choose to issue a petition the court would be able to pronounce a decree of nullity but having regard to s 58(5) of the Family Law Act 1986 the court could not declare a marriage void at its inception. The local authority application was refused.

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

That is about it for this week. But, fear not, I already have a good supply of cases for you next week!

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.