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24 MAY 2013

Samantha Bangham’s Week in Cases 24 May 2013

Samantha Bangham - Family Law Reporter To commence proceedings I will firstly deal with the most disturbing judgment on offer this week before moving on to the more palatable types of cases involving financial remedies and judicial review. Warning: if you have a young baby or are otherwise feeling particularly sensitive, avoid the first summary!

The facts surrounding Re MR (A Child) (Fact-Finding Hearing: Physical Injuries) (Nos 1 and 2) [2012] EWHC 4258 (Fam), [2013] EWHC 1156 (Fam), are those which would startle the most hardened of children lawyers amongst you. The month-old baby was taken to hospital by his parents with severe and life-threatening injuries, discovered while the father was caring for him during the night. He suffered cardiac arrest while in hospital but, fortunately, survived, although the long-term consequences would not be known for some years. His injuries included 26 rib fractures, fractures of both clavicles as well as a humerus fracture, left-sided haemothorax (blood in the fluid filled space surrounding the lungs), right-sided pneumothorax (air within the pleural cavity), surgical emphysema (air within the soft tissues beneath the skin), and a pneumomediastinum (air within the part of the chest containing the heart, major blood vessels, trachea and oesophagus). The parents were found to have been dishonest in their accounts and the father, in particular, had told a number of obvious, flagrant and highly significant lies in the interests of self preservation. The court heard how the parents stopped before attending hospital with their seriously ill baby to change his nappy and even possibly to feed the cat! (I had to read that part a few times to be certain I hadn’t imagined it.) The father was found on the balance of probabilities to have caused the injuries during a sudden and violent loss of control.

The second instalment of this case concerned the welfare considerations and detailed the child’s ‘extraordinary distress’ at contact with the parents. Naturally, the parents were ruled out as long-term carers but they both initially continued to have contact with the child until the father was sentenced to 10 years’ imprisonment for grievous bodily harm in respect of his abuse of the baby. The local authority sought to stop all contact, claiming that the child was not coping well despite implementing a number of strategies to improve its quality. When the matter returned and video footage of contact was provided, the judge was said to be appalled at the child’s reaction to the presence of his parents and immediately directed the cessation of contact. Her comment that she was personally filled with regret at not having taken such course 3 months previously when it was initially recommended was particularly telling of the impact the footage had upon her. The mother was denied the opportunity of a further assessment and the judge found that there was not the slightest sign that, within an acceptable timetable for the child, the mother would be able to confront and acknowledge the scale of her responsibility for the events leading up to the child’s hospital admission. It was not possible to reintroduce the child to the mother without him suffering renewed trauma. The mother, however, had no regard for the effect her presence had on her son. The child’s overwhelming need was now to be placed in an adoptive home where he was able to feel secure, settled and free from harm.

Re J (A Child) (Learning Disabled Parent) offers a more uplifting note to this piece. In care proceedings in relation to a 5-month-old child the mother, who suffered from learning difficulties, attended a mother and baby assessment centre. Although she made progress during the placement she was found to have an inability to show a basic understanding of her child’s developmental needs and was unable to grasp the fact that the father, who had a history of violence, could present a risk to the child’s physical safety or emotional security. District Judge Cushing however, found that while the threshold for making a care order had been passed on a limited basis, there was insufficient evidence available about the child’s chances of being successfully brought up by his mother and, therefore, a further assessment was directed with the purpose of identifying the extent to which the mother could build upon the improvements she had already made and effect a transition from supported accommodation into independent living. Happily, the second placement enabled the mother to demonstrate that she was capable of meeting the child’s needs so long as she had access to the support and advice that she accepted she required. She was able to recognise her own limitations due to her learning disabilities and worked effectively with professionals. The local authority now conceded that a supervision order would be sufficient to enable professionals to advise and support the mother. It was noted to be of great benefit that the child’s main carer would not be changing and he had been observed to be very contended in her care.

In an international adoption case, Re IH (A Child) (Permission to Apply for Adoption) [2013] EWHC 1235 (Fam), Pauffley J considered a 13-year-old child who had been brought to the UK by his parents and left in the care of the paternal aunt and uncle who sought leave for him to remain in order for them to adopt him. They claimed that permission should be granted outside of the bounds of the immigration rules on compassionate grounds due to the mental health difficulties of the parents impacting on their ability to care for him. When the Home Office refused the request the aunt and uncle permission to begin the adoption process. The Secretary of State for the Home Department, intervening, submitted that the 3-year requirement of s 42(5) of the Adoption and Children Act 2002 existed for good reason and should not be waived in the circumstances of this case. It was impossible to conclude that an adoption order was in the child’s best interests, even setting aside the many matters which cast doubt upon the faith and integrity of the aunt and uncle. There was no sense that they had a true desire for their own reasons to adopt the child. They had five children already and their motivation was to help the parents by providing the child with the chance of a better life in the UK. While the guardian concluded that the child was being well cared for by the uncle and aunt, the emotional impact and circumstances in which the child was left in the UK were troubling.

Continuing on an international note, the Queen’s Bench Division in R (C) v Chief Constable of Lincolnshire Police [2013] EWHC 1174 (Admin), was engaged in a mother’s application for judicial review of the police decision not to charge the father with child abduction following his removal of the three children to Tunisia. When they returned home pursuant to a return order, the father was arrested at Heathrow airport but during questioning he denied the offence and was released on conditional bail. In family proceedings the High Court judge declared that the children had been unlawfully removed without the mother’s consent from the UK which was their place of habitual residence. In the meantime the father disappeared and failed to answer police bail. The mother now claimed that her Art 8 rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 had been infringed due to police inaction. The police had been faced with conflicting accounts and were still carrying out further investigations. At present they did not believe that there was sufficient evidence to enable them to charge the father. In line with the authorities of Blackburn [1968] 2 QB 118 and Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 the court would be extremely slow to interfere with a judgement as to whether or not a criminal charge should be brought against an individual. There was no arguable error of law such as should engage the court’s supervisory jurisdiction. Permission to bring judicial review proceedings was refused.

Moving on to the field of financial remedies, Mostyn J in his judgment of DR v GR and Others (Financial Remedy: Variation of Overseas Trust) [2013] EWHC 1196 (Fam) granted the wife’s application to vary the terms of a Jersey discretionary trust pursuant to s 24(1)(c) of the Matrimonial Causes Act 1973 which through a company structure owned, amongst other assets, two retirement villages, operated by the husband. Approximately half of the assets were contained in the trust and the wife sought an outright transfer from the trust to satisfy her claim for financial remedy. On the facts, applying the principles in the line of authorities including BJ v MJ (Financial Remedies: Overseas Trusts) [2011] EWHC 2708 (Fam), [2012] 1 FLR 667, the entire trust structure comprised a variable post-nuptial settlement that the court was empowered to deal directly with and to make orders in respect of the trust assets owned by the companies. The wife would receive a liquidated sum of £1,229,965, which equated to 49% of the assets, comprising of the matrimonial property, a sum owed to her by the daughter and an outright payment from the settlement of £391,000. The husband would have 2 years to raise the latter sum subject to a 5% interest rate and the trust would be varied to remove the wife as a beneficiary and a director of any of the companies.

Finally, the Court of Appeal, in Re A (Interim Contact Pending Psychological Assessment) [2013] EWCA Civ 543, comprising of Mummery, Patten, Black LJJ, dealt with an appeal against the relaxation of contact arrangements which permitted the father, who had a rape conviction, and had so far refused to engage with a psychological assessment, to remove the child from a contact centre for 2 ½ hours each week, as opposed to the previous arrangement which allowed for one hour’s contact outside the contact centre. On the material available to the judge, he had been wrong to alter the contact arrangements in the way he did. In this particular case due to the mother’s anxiety about the father’s attitude and the potential for emotional harm of the child outside the supported environment of the contact centre in circumstances where the judge himself was sufficiently concerned to order a psychological assessment the relaxation was premature. The appeal was allowed; contact was restored to a supervised basis aside from one hour which could be spent in the locality of the centre.

It has certainly been a busy week and one that has once again highlighted the broad scope of the field of family law. I hope this article has offered ample nourishment to see you through the (hopefully, sunny??) bank holiday weekend!

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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