Top 10 Family Law Cases of 2010

22 DEC 2010

There were many important family law cases in 2010 and selecting the ten most important has proven a challenging task. However, having consulted the Family Law editors and our readers via our Twitter page (twitter.com/jordansfamlaw) the following cases have made the list.

Please join the debate on Twitter using the hashtag #familylawcases2010 if you would like to comment on our selection.

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1. Agbaje v Agbaje [2010] UKSC 13 __________________________________________________________________

In allowing the Agbaje appeal the Supreme Court clarified the circumstances in which an order for financial provision can be made under Part III of the Matrimonial and Family Proceedings Act 1984, where a foreign court has made a prior financial order in divorce proceedings. The Court of Appeal had set aside the ancillary relief awarded to Mrs Agbaje on the ground that the High Court had given insufficient weight to the ancillary relief awarded by a Nigerian court. However, the Justices held that the whole purpose of Part III is to alleviate adverse consequences of an inadequate financial provision being made by a foreign court in a situation where the parties had substantial connections with England.

The decision has paved the way for cases in which those unhappy with divorce awards in foreign jurisdictions will look to the English Court for a second bite at the cherry where one of the parties has a significant connection with this country.

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2. Re W (Children) [2010] UKSC 12 __________________________________________________________________

The Supreme Court reformulated the approach a family court should take when exercising its discretion to decide whether to order a child to give live evidence in family proceedings. In so doing it removed the presumption that it is only in the exceptional case that a child should be so called.

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3. Radmacher v Granatino [2010] UKSC 42 __________________________________________________________________

In a widely reported case, the Supreme Court upheld that prenuptial contracts ought to be given decisive weight, where entered into freely by both parties. In dismissing the husband's appeal by a majority of eight to one, the Justices found the Court of Appeal was correct to conclude that there were no factors which rendered it unfair to hold him to the agreement. The Justices concluded that "Fairness did not entitle him to a portion of his wife's wealth, received from her family independently of the marriage, when he had agreed he should not be so entitled when he married her".

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4. Tchenguiz and Others v Imerman [2010] EWCA Civ 908, [2010] 2 FLR 814 __________________________________________________________________

The Court of Appeal ruled that that the Hildebrand rules, which historically have enabled a wife or husband to secretly obtain, copy and use each others' documents in divorce proceedings, have "no basis in law" and are unlawful. The case clarifies whether and in what circumstances a party should be permitted to retain and or make use of 'irregularly obtained information'.

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5. Neulinger and Shuruk v Switzerland (Application no. 41615/07) ECHR __________________________________________________________________

The European Court of Human Rights found there would be a violation of the Article 8 rights of the mother and child if the order for the child to be returned to Israel under the Hague Convention was enforced. In balancing the competing interests, the best interests of the child must be the primary consideration, and therefore a child's return cannot be ordered automatically or mechanically when applying the Hague Convention in conformity with the ECHR.

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6. Re S (A child) [2010] EWCA Civ 705 __________________________________________________________________

This case provides guidance on the drafting of contact orders. The mother sought a sole residence order and the father a shared residence order. The judge made an order providing that the father would ‘have care of the child' for certain periods.

The order was set aside on appeal. The court cannot impose an order which is not phrased in statutory language. The Court of Appeal referred to Ward LJ's statement in Re B (A Child) [2001] EWCA Civ 1968 that one cannot have a contact order without having first determined the person with whom a child lives, because the contact order requires that person to allow the child to visit or stay with the other parent. Thorpe LJ further stated that "necessarily the contact order cannot be made unless it can be attached to a residence order providing there for the child to live with a person".

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7. Independent News and Media v A [2010] EWCA Civ 343, [2010] 2 FLR 1290 __________________________________________________________________

The Court of Appeal ruled that media can attend Court of Protection hearings. The court held that Court of Protection hearings are not within the exceptions to the open justice principle, and Art 10 rights become engaged when the media make an application to attend.

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8. Vaughan v Vaughan [2010] EWCA Civ 349, [2010] 2 FLR 242 __________________________________________________________________

The case provides guidance on the variation of maintenance and the position of the second wife in the assessment of any obligation on the husband to continue to make periodical payments to a first wife.

The husband applied to terminate periodical payments he was ordered to pay his ex-wife in 1989.The wife cross-applied for a capitalised lump sum. The wife had inherited capital since separation and was in a position to produce her own income without undue hardship. The High Court judge allowed the husband's application, attributing half of husband's current pension income to his second wife.

The Court of Appeal held that no priority was to be given to the claims of the second wife. The wife was awarded a lump sum of £215,000 in lieu of periodical payments to provide an income of £46,000 per annum with any shortfall to be made up from her capital.

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9. Robson v Robson [2010] EWCA Civ 1171 __________________________________________________________________

This Court of Appeal judgment gave guidance as to the approach that should be taken in big money cases involving inherited wealth.

The husband inherited a substantial sum of money after 21 years of marriage. The criteria in Ladd v Marshall still prevail in terms of the admission of fresh evidence. The court reviewed and reduced the judge's award to the wife on the basis of her actual housing cost and that the standard of living which was extravagantly enjoyed at the expense of inherited wealth during the marriage would have to be reduced.

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10. A v East Sussex County Council and Chief Constable of Sussex Police [2010] EWCA Civ 743, FLR Fast Reporting                                 __________________________________________________________________

This judgment outlined the approach that should be taken in emergency child protection cases.

The mother reported concerns about episodes in which the child apparently stopped breathing. The hospital found nothing wrong and the consultant notified social services who then placed the child in foster care pursuant to Children Act 1989, s 46. The Court of Appeal held that the judge was entitled to conclude that the decision to remove the child was justified, despite the mother subsequently being assessed positvely and the child returned, as in circumstances it was impractical to convene a family proceedings court.

 

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