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There have been two really interesting judgments in the last couple of days, just as I go off on holiday. Typical. Still, since I don't have time to provide in-depth analysis, the headlines are these:
Re S (A Child)  UKSC 10
The Supreme Court reversed the Court of Appeal and reinstated the first instance judgment of Charles J where he had declined to order a return of the child under the Hague Convention.
Having wrongfully removed the child from Australia to England, the mother had raised an Art 13(b) defence on the grounds that the father had subjected her to domestic abuse and had drug and alcohol addictions. The Court of Appeal took the view that the mother's anxieties were the result of her subjective perceptions and that these were not reasonably held. It was, they said, a paradigm case for a return order.
The Supreme Court said that the Court of Appeal had got it wrong and that they had misinterpreted the recent Supreme Court judgment in Re E (Children)  UKSC 27.
Firstly Charles J had found that the mother's allegations were not all disputed - the father had admitted some of them and in light of the evidence he could not realistically challenge others. Therefore there was no need to consider the mother's subjective perceptions - there was an objective basis. The judge was entitled to find that the protective measures proposed by the father would not alleviate the grave risk and to exercise his discretion not to return the child.
Further, in any event, subjective anxieties could found an Art 13(b) defence. The crucial question was not whether the mother's concerns were reasonably held, but what will happen if, with the mother, the child is returned? If on return the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, then the child should not be retuned.
The level of risk which was required by Art 13(b) fell to be determined by the trial judge and the Court of Appeal should not have overturned his judgment unless it had not been open to him to make it.
The Supreme Court went on to clarify that an in-depth examination is not required or appropriate in Hague Convention cases irrespective of the ECtHR's recent restatement of the Neulinger requirement in X v Latvia (Application No 27853/09).
A v B and C  EWCA Civ 285
A child had been born by known donor AI to a lesbian couple and the father (also gay) sought contact. The mother and father had married before the child was born (but had not lived together) with a view to appeasing the mother's religious family and as a result the father had parental responsibility. The first instance judge, HHJ Jenkins had ordered fortnightly contact to the father, but had stated in his judgment that the father was not a psychological parent and the situation was not in any way analogous to the ‘divorce model'. He characterised the father's relationship with the child as ‘limited' and said that the basis for changing the refusal of staying contact was unlikely to change much in the near future.
The father appealed these aspects of the judgment, although the terms of the order itself were unappealable (the father accepting that this contact was appropriate at that stage but seeking an increase and staying contact over time). The Court of Appeal allowed the appeal and remitted the case to a judge of the Family Division knowing that the case would come on in about a year's time and that this would allow for a period in which to review the situation. The mothers had been granted a joint residence order which it was hoped would give them the reassurance to allow contact to develop. There should be expert input which had not been available to the judge.
The only principle to be applied is that the child's welfare is paramount. These cases are fact specific and general principles cannot be drawn out. The pre-conception intentions and agreements of the adults were relevant in this case but they were not and should not be determinative. The primary purpose of contact is not to reflect the agreement and intentions of the adults, but to promote the welfare of the child.
The extent of the father's relationship with the child should be reviewed over time and adjusted in accordance with the circumstances and the interests of the child. The father should not be categorised as a secondary parent: Thorpe LJ declined to endorse the terminology of primary and secondary parents as employed by Hedley J in ML & AR v RW & SW  EWHC 2455 (Fam) and Re P & L (Minors)  EWHC 3431 since this has the danger of demeaning the known donor. Indeed, Black LJ suggested that the use of the term ‘donor' should be reconsidered as it could be misleading.
Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.
She works on the Family Law online major works providing updating notes on cases and other relevant developments as they happen for The Family Court Practice, Children Law and Practice and Matrimonial Property and Finance online.
Contact Hayley on Twitter: @HayleyTrim
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