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19 APR 2013

Samantha Bangham’s Week in Cases 19 April 2013

Samantha Bangham - Family Law Reporter The end of financial year mania seems to be quietening down for the staff here at Jordans, aside from my colleague, Jonathan Cailes, who is wading his way through an enormous proof of The Family Court Practice 2013 – please place your orders here to provide him with some much needed inspiration!

It has been a much more exciting week this week with six judgments approved for publication in Family Law Reports. One case of particular interest, of a more draconian nature, was CW v SG [2013] EWHC 854 (Fam), [2013] FLR forthcoming, which involved a father’s application for contact with his child after he was convicted of serious sexual offences against his two step-children. The mother opposed contact and sought an order terminating the father’s parental responsibility. Interestingly, the consultant clinical psychologist report was found by the judge to be worthless and that the evidence provided ran contrary to all understanding about paedophiles. The mother’s application was granted and the father’s dismissed taking into account the child’s emotional needs, and the harm he had suffered. In this instance the rights of the father and child under Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 to have a family life together were outweighed by the child’s overriding need to security within his family.

In judicial review proceedings, ET, BT and CT v Islington London Borough Council [2013] EWCA Civ 323, [2013] FLR forthcoming, the maternal grandmother, acting on the behalf of her three grandchildren, challenged the local authority’s actions in failing to carry out assessments in respect of the mother’s partner, who had a history of sexual offending against children. The local authority had consulted with the police and other organisations prior to producing their original risk assessment and the police indicated in their assessment that the man posed a very high risk and provided details of his offending. However, that view altered prior to the completion of the assessment and the later view was that these children were at no more risk than other children in the local community. The children challenged the lawfulness of the local authority assessment based on that view. The court failed to find the assessment was unlawful and the children appealed. The appeal was allowed on the ground that the local authority’s assessment had been unreasonable in the Wednesbury sense in that it had been based on police evidence which had changed substantially. The local authority had failed to make a critical evaluation of the police evidence.

A slightly older case from 2010 by Singer J was submitted to me this week, T v T [2010] EWHC 3928 (Fam), [2013] FLR forthcoming, involving Art 15 of Brussels II Revised. The mother sought to transfer divorce proceedings, including matters relating to the children and financial proceedings flowing from the divorce, from the court in Hungary to England and Wales. Singer J held that Art 15 of BIIR applied only to matters of parental responsibility and, therefore, financial matters ancillary to divorce were not to be made subject to the transfer procedure. The Art 15 request insofar as it related to anything other than parental responsibility would not fall within BIIR and the courts of England and Wales could not accept jurisdiction.

Two cases have not been selected for publication in FLR but are worth mentioning as they may be of interest to some of our readership. Elliott v Ratcliffe [2013] EWHC 806 (Fam), concerned an application for a declaration of parentage of the child, now 24 years old, for whom he had paid thousands of pounds in child support over the years after being pursued by the Child Support Agency. The man believed that at the time he had sexual relations with the mother she was already pregnant and that he was not the father. He sought to recoup the child support he had paid. A DNA test was performed but due to the process required by the lab, the judge held that there was not sufficient information upon which to make a declaration of parentage due to the lack of proof of the chain of the individuals and the samples taken. The DNA testing company was ordered to provide further information.

In a decision from the Principal Registry of the Family Division, A London Borough v M, heard shortly after Theis J gave judgment in London Borough of Islington v Al Alas and Wray [2012] EWHC 865 (Fam), [2012] 2 FLR 1239, a 5-month-old child was admitted to hospital with 17 fractures including to the skull, ribs and limbs and was found to be suffering from vitamin D deficiency and rickets but the issue arose whether that diagnosis alone could account for the extensive fractures sustained by the child. Taking all of the factors into account including, the divergent views of the medical experts and the very positive evidence of the parents’ care of the child it was not possible for the judge to make findings as to how the child sustained the injuries. In light of that, the local authority had failed to discharge the burden of prove and the threshold criteria had not been met. The judge highlighted the fact that there were cases where there was simply no known aetiology and that served as recognition that there were limits to the state of current knowledge. The view of Theis J in Al Alas was reinforced that further research was needed in such a very important area.

For a full summary of all of this week’s cases - please click here.

In other news, the gossip tabloids inform me that Scot Young has been released from Pentonville prison following the completion of his sentence for failing to make full disclosure in financial remedy proceedings. He was quoted as saying it was ridiculous that he was locked up with murderers and rapists for 22 hours per day over a matrimonial matter. It remains to be seen whether the experience has prompted him to re-think his litigation strategy. Proceedings will resume later in the year and we will provide you with full coverage.

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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