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Family Law

The leading authority on all aspects of family law

01 NOV 2013

Samantha Bangham’s Week in Cases 1 November 2013

Samantha Bangham - Family Law Reporter Another week has just flown by (or is it just because I am getting started on drafting this at the beginning of the week?)! Yet more family cases to feast your eyes on.

To begin, I have a financial remedies decision from the Court of Appeal - Matthews v Matthews [2013] 2 FLR forthcoming in which the wife appealed a determination not to award her a nominal spousal maintenance award. The husband and wife were only married for a short period but had two young children. In financial proceedings the wife was awarded three of the four matrimonial properties and a small lump sum payment, in addition the husband was required to pay child maintenance. The wife further submitted that in the event that she would not be able to increase her earning capacity to the level prior to her redundancy, she should be awarded nominal spousal support so that it remained open to her to seek an increase. The Court of Appeal comprised of Richards, Tomlinson and Lewison LJJ, dismissed the appeal. The decision not to make a nominal spousal maintenance award could only be overturned if it had been plainly wrong. The judge had taken into consideration the wife’s employment issues and her past and current earnings. On that basis the judge had not failed to take any relevant matters into account.

On 18 October 2013 the Court of Appeal gave judgment in Re K (Contact Order: Posed Risk by Father) [2013] 2 FLR forthcoming, in a case concerning a father’s application for a residence order. The child had been removed from his home following the parents’ separation and placed in the care of the mother. At a fact-finding hearing the judge found that the father had received a self-inflicted stab wound and that he had started a fire at his own home and that he presented a risk to the child. The father refused to accept the findings but his application for a residence order was dismissed and supervised contact was ordered twice a year. Further, a s 91(14) order was made for 10 years’ duration. The father appealed. The Court of Appeal dismissed the appeal. In light of the findings made against the father the contact order had been appropriate. In addition the duration of the s 91(14) order could not be interfered with once the judge had determined that it was appropriate to grant an order, it was for him to determine the duration.

An interesting judgment, heard in the Principal Registry of the Family Division has been released this week in the case of X Local Authority v Trimega Laboratories [2013] EWCC 6 (Fam), [2013] 2 FLR forthcoming. Her Honour Judge Williams was engaged with an application for wasted costs made against Trimega Laboratories due to an error in a report following blood alcohol testing of the mother of a one-year-old child. The central issue was the mother’s alcohol use. Tests revealed she had not been drinking for some months. Upon that basis the care plan was for the child to return to her care. A subsequent report showed an increase which caused the local authority to reassess its care plan. Trimega later reported that they had made a mistake in the reported blood alcohol levels which had actually indicated the mother had remained abstinent. The child was returned to the care of her mother under a supervision order. Trimega agreed to pay costs of £17,167 but objected to a publication of the judgment which was sought by the other parties. The error made by Trimega did not amount to a flagrant reckless disregard of its duties to the court but was a case of human error. A new procedure had now been implemented involving a further safety check. Trimega accepted that the direct consequences were considerable upset and distress for the parents in this case, additional costs and not least a delay of 4 weeks for the child in being placed in her mother's care. It was in the public interest to publish the judgment. The family courts should be as open and transparent as possible to improve public confidence and understanding. In this case expert evidence was relied upon and if the mistake had remained undiscovered it was probable, given the history in this case, that it would have led to the adoption of the child instead of rehabilitation to care of her parent. Close scrutiny of expert evidence was needed and all the surrounding circumstances had to be considered in a situation such as this where the interpretation of test results was so important and influential.

Appeals from placement orders remain as popular as ever this week. In Re R (Appeal From Placement Order: Change of Circumstances) [2013] EWCA Civ 1240, [2013] 2 FLR forthcoming, the mother appealed placement for adoption orders in relation to her children, aged 11 and 5. Initially the main priority was to find a sibling placement so that they could remain together but in the 12 months since the final hearing the local authority had been unable to identify either an adoptive or long-term fostering placement. While the children had been placed in a short-term foster home it became apparent that as their personalities had developed it was not necessarily in their best interests to be placed together and it would be difficult to parent them in the same home. The plan was now for an adoptive placement to be found for the younger child but for the older child to be placed in long-term foster care and for the placement order to be revoked. During the course of proceedings the local authority conceded that the appropriate way forward was for the younger child’s placement order to be revoked also and for the matter to be considered afresh in the light of the circumstances that had now arisen. McFarlane LJ agreed that this was a pragmatic and child-focused approach.

In the Family Division, Holman J tackled an application for a transfer of proceedings pursuant to Art 15 of BIIR in the case of Walsall Metropolitan Borough Council v K [2013] EWHC 3192 (Fam), [2013] 2 FLR forthcoming. The three children of Slovakian parents were removed from their care due to concerns for their ability to parent. The local authority submitted that the parents were not capable either separately or together to parent the children and, therefore, the threshold had been crossed. Consideration was given to whether the children could be placed with family in Slovakia where their three older siblings lived. However, it became clear that due to issues with accommodation the paternal grandmother could not offer the children a home and there was no other family member who would be able to do so either. During proceedings the International Legal Protection of Children and Youth Centre in Slovakia applied to the English court for a transfer of proceedings pursuant to Art 15 of BIIR. In considering whether Slovakia was a better forum to determine the issues, the parents had lived in the UK since 2007 and all of the evidence existed in England. The current foster carers had indicated that if an adoptive placement was not found for the children then they would seek to care for them long term. That was the local authority’s current care plan. The Art 15 application was refused. If it had been determined that the parents could not care for the children and if they had no alternative placement then very active consideration would have been given to transferring the proceedings to Slovakia. But that was not the case here. The children would either be returned to the parents or remain living with foster carers with whom they had been living with for the last 18 months. It was not in their best interests to allow the application.

Finally, in Pakhomova v Russia (Application no 22935/11) [2013] 2 FLR forthcoming, a judgment from the European Court of Human Rights, the mother claimed a violation of Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 due to a failure by the Russian authorities to enforce the custody judgment in relation to the now 12-year-old son. During custody proceedings the father picked the child up from school and he had now not been seen by the mother since 2009. The mother was awarded custody based on the warm and trusting relationship she had with the child whereas the father’s relationship was thought to be ambiguous. The police conducted a local and federal search for the child, the media were alerted and a photograph of the child was issued. After attempting to coerce the father into complying with the custody order voluntarily, the mother applied for enforcement through the court. The Bailiff’s Service refused to open enforcement proceedings but was forced to do so on appeal. The father was given 5-days’ notice to comply with the order. When it became clear that the father no longer lived at his stated address the enforcement proceedings were stayed. The mother attempted to bring criminal proceedings against the father but was unsuccessful. In the district court the father was found to have abused his parental rights and they were, therefore, terminated. In total it had taken the Russian authorities 4 years to bring criminal proceedings and to terminate the father’s parental rights when it had been clear at an early stage that the father would not comply with the court order. The 4-year delay in enforcing the custody judgment would have serious consequences for the child’s physical and mental well-being. The court concluded that the Russian authorities had failed to take, without undue delay, all the measures that they could reasonably have been expected to take to enforce the custody judgment. That constituted a breach of Art 8.

There will be a suspension of service next week as I shall be celebrating/commiserating my 30th birthday. Normal, and perhaps, older and wiser, service will resume the week after.

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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