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Family Law

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06 MAR 2014

March Family Law Case Comments: Highlights

Samantha Bangham - Family Law Reporter As the President’s campaign for greater transparency in the family courts gains momentum the volume of cases being reported in FLR and Family Law is ever increasing, making both products a valuable resource for any family law professional.

This month’s Family Law case commentary includes judgments from a case which attracted great media interest (with associated, occasionally inaccurate reporting!). Mostyn J’s judgment in Re AA (Mental Capacity: Enforced Caesarean) [2012] EWHC 4378 (COP), [2014] FLR forthcoming, really does warrant a full read in order to fully understand the factual reality of the application presented by the NHS Trust for an enforced caesarean. Caroline Bridge’s case comment provides a comprehensive analysis of the decision and outlines the reasoning for the release of the judgment in order to dispel the myths that were circulated in the media.

Commentary is also provided on the follow-up judgment from His Honour Judge Newton in Re P (Care and Placement Order: Child Born Following Enforced Caesarean Section), [2014] FLR forthcoming, which sheds further light on the circumstances surrounding Mostyn J’s order and a little more background to the mother’s history. As the comment notes, there would be little interest in this judgment were it not for the media frenzy created by the case. Nevertheless, the judgment deals sensitively with the balance between the welfare of the child and the rights of the mother who had been unable to care for her older two children due to her mental health issues.

Pausing in the arena of care proceedings, readers are directed to the Court of Appeal judgment in Re E (Adoption Order: Proportionality of Outcome to Circumstances) [2013] EWCA Civ 1614, [2014] FLR forthcoming, for a good example of weighing the proportionality of making final care and placement orders. The case comment sets out the salient guidelines offered in the judgment for judges deciding at what point nothing else would do, short of adoption.

If you thought you had heard the last of the abduction case of Re A following the grant of return orders in relation to all four children subsequent to the Supreme Court judgment of Re A (Jurisdiction: Return of Child) [2013] UKSC 60, you would be wrong. In this latest judgment: A v A (Abducted Children: Interim Care Order) [2013] EWHC 3554 (Fam), [2014] FLR forthcoming, it would appear that the situation for the children had not improved despite the three oldest children being returned home, the fourth remained with extended family members in Pakistan, while the siblings were still being denied regular contact with the mother and were actively opposing it themselves leading to any contact visits being extremely fraught. In this judgment Parker J concluded that there was a high likelihood that if left in their father’s care the contact problems would be compounded and they were at risk of increased emotional pressure. The removal of the children from the father’s care was ordered and when the youngest child arrived in the jurisdiction he was to be returned to the care of the mother.

In another case which has attracted significant media attention, a final award was made in the case of Young v Young [2013] EWHC 3637 (Fam), [2014] FLR forthcoming, and this month’s Family Law provides a detailed breakdown of the award and the judge’s conclusions as to the level of the husband’s assets. On the balance of probabilities the husband was found to have assets of £45m following his alleged financial collapse and on both a needs and sharing basis an appropriate award was one of £20m taking into account a deduction of £5m for the husband’s indebtedness.

This month’s case commentary covers the field of medical treatment in two sensitive and complex cases. The first: An NHS Trust v R [2013] EWHC 2340 (Fam), [2014] FLR forthcoming, deals with a 14-month-old child with profound disabilities and a need for continuous artificial ventilation. In the face of medical evidence that ventilation and associated procedures were burdensome for the child in circumstances where his condition was progressive and ultimately fatal the court sanctioned the withdrawal of medical treatment and made interim orders. Unfortunately, the child died before a hearing to consider fresh evidence could be convened.

The second judgment on this topic: Re TM (Medical Treatment) [2013] EWHC 4103 (Fam), relates to a 7-year-old child being treated at Great Ormond Street. Relations between the parents and treating clinicians had broken down and the parents opposed the proposed procedure to remove the child’s current gastrostomy and the insertion of a gastrojejunal tube. During the proceedings a telephone conference took place and a level of agreement was reached. The court made declarations that it was in the child’s best interests to undergo the procedure as well as having further investigations. As the case comment highlights this was an immaculate example of achieving collaboration between the parents and medical staff to agree to a way forward.

In addition to these highlights, case comments in the March edition are also available on the subjects of: abduction; adoption; Brussels II Revised; Divorce; financial remedies; jurisdiction; marriage; special guardianship and supervision orders.

The March issue of Family Law should already be on your desks. If you don’t currently 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.

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.

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