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25 OCT 2013

Samantha Bangham’s Week in Cases 25 October 2013

Samantha Bangham - Family Law Reporter This week has taken me outside the world of family law for a dip into my voluntary work with Pets As Therapy. Regular readers will be aware that my Chihuahua, Louis, and I visit the Bristol Children’s Hospital to provide a bit of light relief to its residents. This week we met with a clinical psychologist who is researching the effects of pet therapy on adolescent young people. All of the initial indications seem to be very positive as to both the physical and emotional advantages offered by pet therapy. The findings of the study will be published in a forthcoming issue of the Qualitative Research Journal and I will keep you updated of the outcome.

Meanwhile another thrilling week in the world of family law has passed us by! The first case of note is a Court of Appeal judgment following on from Re B-S [2013] EWCA Civ 1146. In two joined appeals Re W (Adoption Order: Leave to Oppose); Re H (Adoption Order: Application for Permission for Leave to Oppose) [2013] EWCA Civ 1177 the Court of Appeal reviewed decisions refusing the parents’ permission to oppose adoption orders. The Court of Appeal found that the judgments did not make clear whether either the prospects of success lacked solidity or whether the judge found that the children’s welfare demanded that the applications be dismissed. There were also serious problems with the way the judges formulated the test. There was no option but to allow the appeals and remit the cases for reconsideration. Further it was unacceptable that in the case of Re H the local authority failed to comply with the judge’s order to file position statements regarding each child no less than 5 working days before the hearing. The parents were provided with the position statements just 45 minutes before the hearing. That put the parents in a deplorable position. There was no excuse for court orders not being obeyed.

Remaining in the Court of Appeal, the judgment of Re C (Appeal from Care and Placement Orders) [2013] EWCA Civ 1257 concerned an appeal by the maternal grandparent from a decision authorising the adoption of the 2-year-old child rather than placing the child in the care of the grandparent who was registered blind and would be a single carer. The judge had made findings including the grandparent’s inability to deal with the mother and the potential difficulty of being a single carer with a disability and also managing work and financial commitments. Weighing up all of the evidence the judge found that the concerns outweighed the advantages and that adoption was in the child’s best interests. The Court of Appeal found that the first instance judgment was in a linear form and did not make it clear that the judge had conducted the balancing exercise in order to make the crucial decision. Despite the unhelpful structure of the judgment it was clear that the judge had a number of relevant long-term factors in mind which demonstrated that he did engage sufficiently with the core, long-term welfare decision in the case. He had in mind the extreme seriousness of taking the adoption route and the requirement for proportionality. The decision had to stand and the appeal was dismissed.

In the case of Mittal v Mittal [2013] EWCA Civ 1255 the Court of Appeal was concerned with an appeal as to jurisdiction whereby English divorce proceedings had been stayed based on a finding that India was the more appropriate forum where the husband had already issued proceedings. The appeal was dismissed. The wife’s argument that the principle in Owusu v Jackson should be extended to the circumstances in this case was rejected. It could not be submitted that the proceedings were governed by BIIR since BIIR failed to provide for how the court should deal with such an application. The judge had not been precluded from granting a stay under para 9 of Sch 1 of the Matrimonial Causes Act 1973.

In the Family Division Charles J gave judgment in the case of M-T v T [2013] EWHC 2061 (Fam) which involved the wife’s claim for financial remedies and orders in relation to the children based on an assertion that she and the husband had been married in Nigeria in 1993. The husband denied they had been married and claimed that at the time he was already married to another woman. A freezing order was granted and the wife was awarded maintenance pending suit of £25,000. In proceedings in the Nigerian court it was found that the wife had failed to establish that a marriage had been created and that decision was upheld by the court of appeal. The wife now sought a decree of nullity and abandoned her claim for dissolution. The wife’s petition before the English court would be struck out following the findings by the Nigerian court. She had been given a full, fair and appropriate opportunity to establish that the parties had entered into a customary marriage but had failed to do so. To lift the stay of the English proceedings and permit her to attempt to persuade the English court that a marriage had taken place would be unfair to the husband. The finding of the Nigerian court was of fundamental importance and impacted on all the other issues relating to the conduct of the parties and their rival contentions. Unfortunately for the husband, the established authorities suggested there was no power of repayment to the husband of the sums he had paid the wife during the proceedings.

A judgment from Roderic Wood J from August has been released this week in the case of A v D [2013] EWHC 2963 (Fam) in relation to parental responsibility. The mother of two half-siblings had been the victim of serious domestic violence including incidents of stabbing, punching and kicking some of which was witnessed by the children. The mother and children fled the home which was subsequently burgled and a police car placed outside the home for the family’s protection was set on fire. The father was convicted and imprisoned. The mother now sought a residence order in respect of the 4-year-old child, permission to change the child’s forenames and family name and an order revoking the father’s parental responsibility. The father, who was currently serving a prison sentence, did not oppose the applications and did not attend but informed the court that he was unable to find a legal representative as he did not qualify for legal aid. The father’s letter was not regarded as a full consent and, therefore, attempts were made by the court and Cafcass to contact him and arrange for his views to be represented but he refused to attend and declined to leave the prison. The Cafcass officer supported the mother’s applications. Reports on the 4-year-old child demonstrated that he had a number of emotional and social problems which required management at home and at school. The mother and children now lived at a confidential address and had taken security advice from the police. Their view was that upon the father’s release from prison he would be likely to try and locate them presenting a serious risk. The facts of the case militated in favour of granting the orders sought by the mother. The very high threshold for terminating the father’s parental responsibility had been met. Leaving him with parental responsibility would force the mother to continue to have dealings with him which would lead to profound instability for her with the inevitable consequence of a deterioration in arrangements for the children. In respect of a name change, the balance tipped in favour of granting permission in order to protect the integrity of the family home and the mother’s care of him.

For a full update of this week’s cases please click here. Further information on the wonderful work of Pets As Therapy can be found on their website including how to become a volunteer and other ways to get involved and support this worthwhile charity.

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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