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Family Law

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21 JUN 2013

Samantha Bangham’s Week in Cases 21 June 2013

Samantha Bangham - Family Law Reporter The pre-summer recess rush appears to be in full swing with judges disposing of their cases before jetting off to a Southern France vineyard for some R&R. That is how I imagine them spending the summer recess anyway, for all I know some may like to take in the delights of Butlins at Minehead, but I do doubt it.

As promised I have now caught up with the key expert evidence judgment provided by the President, McFarlane and Treacy LJJ: Re H-L [2013] EWCA Civ 655, [2013] FLR forthcoming, and a jolly useful judgment it is too. In this instance the mother sought to instruct three experts, namely, a geneticist; a haematologist; and, a paediatrician in care proceedings in relation to the 2-year-old child who was born with a rare genetic disorder, spondylocostal dysostosis. Care proceedings were initiated after nursery staff raised concerns that the child had sustained a number of bruises. The nature and range of bruising and the absence of any explanation for it led to a working diagnosis of non-accidental injury. She had since remained in foster care. During care proceedings only evidence from treating clinicians had been submitted, no outside expert had been instructed and the mother was refused permission to instruct the additional medical evidence on the basis that the factual parameters of the case did not reach the test of necessity of FPR 25.1. The mother appealed, seeking to further explore the child’s condition and the issue of whether she may have an increased a propensity to bruise.

Sir James Munby, the President of the Family Division, most helpfully offered a meaning of the ‘neccessity’ test as being that described in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, somewhere between ‘indispensable’ on the one hand and ‘useful’, ‘reasonable’ or ‘desirable’ on the other hand having ‘the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable’. The President also took the opportunity to reiterate procedural principles including that appellate courts would be slow to interfere with case management decisions; that when disclosure of medical records was being sought from a third party, an appropriate order of the court directed to the third party should be obtained at the earliest opportunity; more thought needed to be given to an appropriately focused application for disclosure, identifying the particular class or classes of documents whose disclosure was really needed; and, finally, the imperative need for everyone, the Court of Appeal included, to deal with appeals from interlocutory case management decisions in family cases with the utmost despatch. The appeal was allowed on a limited basis insofar as it related to the instruction of the geneticist, restricted to a targeted paper exercise, that being proportionate to the need to provide some authoritative clarity and necessary within the meaning of FPR 25.1.

In another care case: Re R (Inherent Probability of Mother Harming Baby), the Court of Appeal, comprised of Thorpe, Tomlinson, and Briggs LJJ was faced with determining whether the mother could have been found on the balance of probabilities to have caused serious scolding injuries to the 14-month-old baby. The mother’s case was that she had left the child in an empty bath for a short while and upon her return he was sat in 18cm of hot water. At a fact-finding hearing the judge found in favour of the expert evidence which contradicted that of the mother and found her responsible for the injuries. The mother appealed. The appeal was allowed, with Thorpe LJ dissenting. The majority view was that before finding the mother responsible the judge ought to have considered whether it was inherently probable that the mother would have acted in such a way. The mother’s past good care of the child had to be taken into account and the judge was required to ask whether a caring mother would have caused the child’s injuries in the way she so found before accepting the scientific and expert evidence.

In the field of financial remedies the Court of Appeal, gave the latest judgment from the case of Wyatt v Vince. Following the husband’s success in overturning the A v A order, he now sought repayment of sums paid to the wife in respect of past legal fees. The court held that the husband was entitled to an order for the return of the sums paid under the A v A order from the date upon which it had been apparent that the security provided by that order had been vulnerable to appeal, namely, when the husband had filed his application to the Court of Appeal for permission to appeal. The case was distinguishable from the authorities upon which the wife had relied. The wife had not failed at trial on the substantive issues but in respect of the A v A order itself. It was clear that if the husband’s challenge of the order had been successful sooner then the two instalments in question would not have been paid. The wife’s solicitors had been aware of the husband’s appeal proceedings and, therefore, that there was an element of risk in their future conduct of the litigation.

The Family Division has similarly been clearing the decks, this week, firstly, T v M [2013] EWHC 1585 (Fam), concerned a husband’s attempt to vary a financial remedy order made only 4 months previously. The wife’s application to strike out the claim was successful and the husband appealed. Coleridge J held in dismissing the appeal that it was impossible for the husband to succeed in establishing that the judge was plainly wrong in finding that no useful purpose would be served by re-opening the matter. The judge was perfectly entitled, having looked at the matter carefully, to come to the conclusion that to allow an application to vary, to go ahead, issued only 4 months after the original order, was one which was fraught with difficulties so far as the husband was concerned and, as it were, almost in his own interests, and certainly in the parties’ interests, it should not be allowed to proceed.

My last case is a novel one, involving the inherent jurisdiction of the High Court and the Human Tissue Act 2004: CM v Executor of the Estate of EJ (Deceased) and Her Majesty’s Coroner for the Southern District of London [2013] EWHC 1680 (Fam). The applicant, a medical consultant and professor, sought declarations of lawfulness in relation to carrying out blood testing on the deceased for blood-borne diseases. She had attended the deceased who had fallen from a building and offered first aid, discovering later on that she had abrasions to her hands which had come into contact with the deceased’s blood. She undertook a course of prophylactic antiretroviral medication but experienced significant, unpleasant short-term side effects. The Coroner concluded that he had no objections to testing being carried out although he had no free-standing power to permit testing. During the police investigation it was established that the deceased was a foreign national with only one relative living in the UK who was her mother’s cousin. When contacted she informed the police that the parents had not yet been informed but that she would offer her consent to testing on their behalf. The doctor sought a declaration under the inherent jurisdiction of the High Court that the taking of samples and testing would be lawful. Cobb J found that it was not reasonably practicable to seek the consent of the parents of the deceased within the time available. The parents were currently unaware of their daughter’s death and there were no other relatives who would be considered as qualifying persons within the terms of the Human Tissue Act 2004. While consideration was given to the high importance to be placed on respecting the integrity of the deceased’s body, so too was the doctor’s act of great humanity in administering first aid and the relative’s sincere appreciation of that act. If testing were not carried out the doctor would live for the foreseeable future in a state of profound anxious uncertainty as to whether she had contracted a serious, life-threatening illness. Declarations as to the lawfulness of removing samples and carrying out testing were granted.

Tomorrow a few of the staff at Jordans will be taking a break from the world of legal publishing to spend the day volunteering at Holly Hedge Animal Sanctuary near Bristol as part of our 150th Anniversary celebrations. We are very much looking forward to a hectic day of kitten cuddling and dog walking. If you would like to learn more about our anniversary celebrations or donate and help us reach the ambitious target of £150,000 then please have a look at our website: http://www.jordans150.com

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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