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The Family Law editorial board have shown no signs of slowing down for the Christmas break and provide you with another bumper issue of Family Law including all of the latest news, cases and legislation.
In the case reports, of particular importance is the commentary on the hotly-awaited Supreme Court decision in Re A (Jurisdiction: Return of Child)  UKSC 60,  FLR forthcoming. Readers will recall that this case concerned an application for a return order in respect of four children held by their father in Pakistan. The main issue was in relation to the youngest child who had been born in Pakistan and had never stepped foot in England, while the three older siblings had all lived in England prior to their retention in Pakistan. In the High Court the application was granted but it was overturned by the Court of Appeal on the issue of the youngest child’s return due to the fact he had never been physically present in England. The Supreme Court allowed the appeal and remitted the matter to the High Court for consideration. The prohibition in s 2 of the Family Law Act 1986 did not apply to this case and, therefore, the common law rules as to the inherent jurisdiction continued to apply. The jurisdiction could be applied if the child was a British national and the High Court judge would determine whether a return order should be granted as a matter of discretion when the case was remitted. A number of factors were relevant to that decision including the father now being estopped from denying the three older children’s habitual residence here and the circumstances surrounding their retention in Pakistan. Lord Hughes provided a dissenting opinion, in contrast to the majority of the justices, that presence was a necessary precursor to habitual residence
Family law finance practitioners will be particularly interested in this months’ case comment on the case of M v M and Others  EWHC 2534 (Fam),  FLR forthcoming, which concerned a wife’s application for financial provision following divorce in Russia under Part III of the Matrimonial and Family Proceedings Act 1984. The main issue was the beneficial ownership of a number of English properties which the husband claimed were legally held by corporate entities but the wife submitted that the husband retained the beneficial interest of four properties including his London home and she sought an order transferring to her all of the properties in this jurisdiction plus a lump sum order which she could attempt to enforce in other jurisdictions. In applying the reasoning in Petrodel v Prest  UKSC 34,  2 FLR 732, the circumstances in which the properties were bought raised the presumption of a resulting trust. In light of the husband’s failure to attend court or give evidence and repeated contempt the court was capable of drawing adverse inferences against him. The court had no difficulty in concluding that the inherent probabilities were that the husband and his companies had attempted to defeat the wife’s claims and sought to disguise the fact that he retained the beneficial ownership of the UK properties. Adverse inferences could also be drawn against the companies in their failure to file evidence, attend court and to proceed with a case of a tax mitigation scheme which did not exist. The judge was satisfied that the husband had at all times retained the beneficial interest of the properties and the presumption did not arise. On the facts, the court could infer a common intention constructive trust. In total the wife was awarded £53m representing a half share of the ascertainable assets in addition to child maintenance.
In Bedfordshire Police Constabulary v RU and Another  EWHC 2350 (Fam),  FLR forthcoming Holman J dealt with a forced marriage protection order in relation to a 16-year-old girl of Muslim Pakistani origin. Despite the order being in place the girl took part in a marriage ceremony and police arrested the mother and paternal aunt for breach of the FMPO. The police later issued formal applications for committal of the mother and paternal aunt for contempt of court. The main issue before the judge was whether the police force could apply for a person to be committed to prison for contempt for a breach of an FMPO when the police themselves were not the applicants to the order. Holman J drew attention to the statutory loophole which meant the police had no basis to take committal proceedings in these circumstances. This was a grave weakness in the existing forced marriage protection order machinery as enacted in Part 4A of the Family Law Act 1996. It was essential that FMPOs had real teeth and that people bound by them, or having notice of them, appreciated that they were capable of being enforced and will be enforced even though the applicant young person may not seek enforcement himself or herself.
The President’s judgment in Re B-S (Adoption: Application of s 47(5))  EWCA Civ 1146 is essential reading for public law children practitioners as it provides an exhaustive analysis of the law following Re B (Care Proceedings: Appeal)  UKSC 33,  2 FLR 1075. Caroline Bridge’s case comment provides an extremely useful breakdown of the key points which I will not attempt to summarise here but instead urge a full reading of the comprehensive Family Law commentary.
The case comment on Re K (Wardship: Publicity)  FLR forthcoming is also well worth a read as it highlights the progressive trend towards greater transparency within the Family Justice System. This case involved the breakdown of an adoptive placement of a 16-year-old girl. After the grant of a final care order the parents now wished to be able to discuss the case in the media and applied to the court for permission to do so. The local authority opposed the application and reported that when the girl found out about newspaper articles which had been written about the circumstances of her case, her behaviour deteriorated significantly but the parents pointed to other factors which might have caused the deterioration. The judge proceeded on the basis that the publicity was at least a contributory factor. As the girl was a ward of court the only statutory prohibition on publication was s 12 of the Administration of Justice Act 1960. The application engaged the girl’s Art 8 rights under the European Convention as well as the parents’ Art 10 rights. His Honour Judge Bellamy held that the welfare of the girl was not the paramount consideration but it was one of the issues to be taken into account. The case raised wider issues including delays in the adoption process and the shortage of prospective adopters as well as the need to provide adopters with sufficient information about the child’s background. These issues were issues of genuine public interest. The balance fell in favour of permitting the parents to discuss the case with the media but the order prohibiting publication would remain in place until the girl reached 18 in January 2014 and nothing should be reported which would lead to revealing the identity of the girl and her parents.
In addition to these highlights, this month’s Family Law also provides commentary on: DL v EL (Abduction: Effect of Reversal of Return Order on Appeal) (No 2)  EWCA Civ 865,  FLR forthcoming, Re M (Abduction: Paternity: DNA Testing)  EWCA Civ 1131,  FLR forthcoming, Re X (Adoption: Gateway Requirements)  EWHC 689 (Fam),  FLR forthcoming, Re A (Intractable Contact Dispute; Human Rights Violations)  EWCA Civ 1104,  FLR forthcoming, The Solicitor General v J-M J (Contempt)  EWHC 2579 (Fam),  FLR forthcoming, Sekhri v Ray  EWHC 2290 (Fam),  FLR forthcoming, NN v ZZ and Others (Fact-Finding: Stranded Spouse)  EWHC 2261 (Fam), N v K (Jurisdiction: International Liaison)  EWHC 2774 (Fam), Re PC, YC and KM (BIIR: Jurisdiction Within the UK)  EWHC 2336 (Fam),  FLR forthcoming, Re A (Prohibited Steps Order)  EWCA Civ 1115,  FLR forthcoming, Re C (Parental Order)  EWHC 2408 (Fam),  FLR forthcoming.
December’s issue of Family Law should already be on your desks. 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. 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.
The content of this article should not be considered as legal advice.
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