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26 JUL 2013

Samantha Bangham’s Week in Cases 26 July 2013

Samantha Bangham - Family Law Reporter This week provided more scintillating footage from the Supreme Court. My personal highlight was, of course, the swearing in of Baroness Hale of Richmond as Deputy President. As Lord Neuberger reminded viewers this was the first ceremony of its kind since the opening of the Supreme Court involved the swearing in of all of the justices together. One thing we seem to do very well as a nation, and as lawyers, is a good traditional ceremony and this lived up to all of my expectations. The robes, I think, are particularly glamorous. In the world of family law there were plenty of cases up for grabs this week.

The first and perhaps most newsworthy case was the Court of Appeal decision in DL v EL (Hague Abduction Convention: Effect of Reversal of Return Order on Appeal) (No 2) [2013] EWCA Civ 865, [2013] FLR forthcoming. I am not ashamed to admit this judgment took a few readings to really get to grips with mainly due to the lengthy proceedings taking place in both the USA and the English courts. It does, nevertheless, provide a comprehensive analysis of the law in this area. The case involved Ghanian parents who married and had a child in the USA. When the father, who served with the US Air Force, was posted to Afghanistan, the mother took their child to the UK and sought immigration status. The US court awarded custody of the child to the father but once the child had travelled back to the USA the mother applied for a return order pursuant to the Hague Convention 1980. Surprisingly, a return order was granted and the mother returned with the child to the UK while the father appealed. The mother argued that the father’s appeal was academic as the child’s habitual residence was now established in the UK. The father’s appeal was allowed by the United States Court of Appeal for the 5th Circuit but the mother failed to comply with the return order and sought to renew her argument that the father’s appeal had been moot. The mother’s failure in the US Supreme Court and the father’s failure to achieve a return order from the English court left the two decisions in conflict. The child had now resided in the UK for almost 2 years. The father appealed the decision of the English court.

In dismissing the appeal the Court of Appeal noted that the development of domestic and international law had steadily displaced other tests such as nationality and domicile in favour of habitual residence. There was now no distinction between domestic law, the test of the Court of Justice of the European Union as expounded in A (C-523/07) [2009] 2 FLR 1, and Mercredi v Chaffe (C-497/10) [2011] 1 FLR 1293 and the autonomous law of the Hague Convention. The introduction of an element of permanence to the test was not one that existed in the original judgment of Mercredi and appeared to raise an issue of translation with the English version. This is not the first time this issue has been raised and I would imagine will become more of a focus point in the near future. The court found that the child’s removal from the USA had been sufficient for him to lose his habitual residence there considering that it was a lawful removal pursuant to an order of the court and that the father co-operated in his departure. It was artificial to assert that the effect of the appellate decision was to render a lawful removal wrongful and that the father was exercising rights of custody prior to the issue of his Hague Convention application and/or at the date of trial. The language of Art 3 of the Convention did not support that interpretation. The Convention was never foreseen or intended to be used in the instant circumstances. Once there had been a lawful departure, annulled 12 months later by a successful appeal, only Art 18 provided a remedy for the successful appellant.

The decision in RCW v A Local Authority [2013] EWHC 2129 (Fam), [2013] FLR forthcoming, is a truly feel good read which isn’t often the case in this field! You may remember we reported the earlier decision in this case: [2013] EWHC 235 (Fam),[2013] 2 FLR 95, which concerned the prospective adoptive mother’s application for an injunction restraining the local authority from removing the child who had recently been placed in her care. Sadly, within a few months of the baby being placed, the proposed adoptive mother developed a brain tumour. It was successfully removed but left her without sight. Shortly afterwards the local authority informed the adoptive mother that the placement would be terminated. The mother was granted an injunction pending further assessment of her parenting capacity in light of her disability. She now sought an adoption order and following a number of positive assessments including those from Great Ormond St Hospital and Focal Point UK, that application was supported by the local authority and the children’s guardian. The assessments noted a strong emotional bond between the mother and child and that a secure emotional attachment was developing. The adoptive mother was found to be highly motivated and swift to learn new aptitudes as a blind parent. Cobb J found the adoptive mother had demonstrated an outstanding ability to manage the stresses of a sudden disability and prioritise the needs of the child, providing a very high standard of loving and nurturing care. An adoption order was in the best interests of the child both now and for the balance of her childhood. It was agreed that the mother would access the support of Focal Point UK for the next 12 months, largely, funded by the local authority.

Following the Supreme Court decision in the case of Re A (Vulnerable Witness: Fact Finding) [2012] UKSC 60, [2013] 1 FLR 948, the matter returned to the Family Division for a determination of the sexual abuse allegations: [2013] EWHC 2124 (Fam), [2013] FLR forthcoming. For those of you who may have forgotten the details the issue arose in the context of contact proceedings between the father and his daughter, whereby allegations of sexual abuse were made against the father by his vulnerable 17-year-old niece. Following the Supreme Court decision a fact-finding hearing took place in order to determine the truth of the allegations and the 17-year old was called to give evidence via video-link with the assistance of an experienced intermediary. There was no ABE interview or narrative statement and the evidence against the father was made up of claims the young woman made to professionals working with her including that the father had sex with her, videotaped her and that the abuse was as a form of punishment for her telling the father’s wife when she was younger that the father was having an affair. She later retracted the allegations before reasserting them.

During the hearing the young woman gave evidence over 2 days to her considerable distress. The father was requested to leave the courtroom part way through in order for the task to be made easier for her. The father continued to refute the allegations. The judge had no hesitation in deciding that the young woman’s claims against the father were fundamentally true; that however he began his despicable behaviour he did indeed inflict the most serious kind of sexual, emotional and psychological abuse upon her over a period of about 10 years; and that, even now, he continued to exert some form of sinister controlling influence so that she could not freely speak about what had happened.

An interesting paternity judgment became available this week by the name of M v F and H (Legal Paternity) [2013] EWHC 1901 (Fam), [2013] FLR forthcoming, involving a husband and wife who, unable to conceive a child of their own looked into the possibility of using a sperm donor. The mother met the donor over the internet where he had advertised his services and the now 2-year-old child was born as a result. The central issue was whether the child was conceived via of artificial insemination (as the father says) or via natural intercourse (as the mother says). The former would result in the legal father being determined by the terms of the HFEA 2008 while the latter would make the biological father also the legal father. The mother applied for a declaration pursuant to s 55 of the Family Law Act 1986 that the biological father was also the legal father and for financial provision under Sch 1 of the Children Act 1989.

Both the mother and father were found to have been untruthful, devious and manipulative. However, the mother’s account was to be preferred given the level of detail she provided regarding their relationship and the consistency of that evidence. The father’s evidence was inconsistent and lacked conviction. The judge concluded that the child was achieved by natural intercourse and as a result the biological father was also the legal father. The court would notify the Registrar General of the declaration and the birth would be re-registered, although that would not confer parental responsibility, the father was entitled to apply for PR in the future. Directions were agreed for the financial application to proceed before a district judge. The father’s application to prohibit disclosure of any information about the case was refused. In balancing the interests under Arts 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 this was not a case in which it was appropriate to make an order of that kind. There would be no real effect on the welfare of the child if the parties spoke publically about the proceedings although they were discouraged from doing so.

These are my particular highlights from this week but if you would like to read summaries on all 11 cases selected for publication this week then please click here.

This week the Supreme Court also heard the case of Re A, on appeal from ZA and PA v NA (Abduction: Habitual Residence) [2012] EWCA Civ 1396, [2013] 1 FLR 1041, in order to resolve the primary issue of whether the Family Division of the High Court, in exercising the inherent jurisdiction, could take wardship proceedings in respect of a child who had never been physically present in England and Wales. The Court of Appeal decision has been applied a number of recent habitual residence cases and so the outcome of those proceedings inevitably hangs in the balance until judgment is given. I will, of course, update you all as soon as the judgment is available. For now though, have a wonderful 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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