Category: Children

In re W (Children): CA 28 Jan 2009

Judges:

Thorpe, Wall, Aikens LJJ

Citations:

[2009] EWCA Civ 160

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Payne v Payne; P v P CA 13-Feb-2001
No presumption for Mother on Relocation
The mother applied for leave to return to New Zealand taking with the parties’ daughter aged four. The father opposed the move, saying that allowing the move would infringe his and the child’s right to family life. He had been refused residence.
Lists of cited by and citing cases may be incomplete.

Children

Updated: 09 December 2022; Ref: scu.317953

Re D (Jurisdiction: Programme of Assessment or Therapy): CA 12 May 1999

The parents were dependent on drugs. The guardian ad litem proposed that the authority should fund treatment of the parents and child in a residential unit with assessment. The authority proposed a detoxification programme. The authority appealed an order following the guardian’s recommendation.
Held: The order was for treatment not assessment and therefore outside the court’s power under s38. The power under s38 was to allow an assessment to assist consideration of a final order. A programme might be an ‘assessment’ even if there were an ingredient of ancillary therapy but that a programme which was substantially therapeutic would not fall within section 38(6) even if it involved some element of assessment. Auld LJ said that a section 38(6) direction for therapy to be offered to a parent could be justified if ‘ . . therapy in the short term may assist in assessing whether further therapy may produce a relevant change for the better, and thus be a useful guide to the court when considering the future of the child at the full care stage.’

Judges:

Thorpe LJ, Auld LJ

Citations:

[1999] EWCA Civ 1390, [1999] 2 FLR 632, [2000] 1 FCR 436, [1999] Fam Law 615

Links:

Bailii

Statutes:

Children Act 1989 38(6)

Jurisdiction:

England and Wales

Citing:

Cited – In the Matter of B (Minors) CA 22-Jul-1998
The court had directed that the parents of the child be offered therapeutic treatment which, it was hoped, would enable their child to be entrusted to their care. The local authority appealed.
Held: The appeal succeeded. Thorpe LJ said that . .
Cited – In Re M (Residential Assessment Directions) FD 23-Sep-1998
When ordering a local authority to pay the costs of residential assessment of mother and child, the court should allow for these factors. It must be assessment not treatment, in long term interests of the child, to enable court to decide and not . .

Cited by:

Cited – Kent County Council v G and others HL 24-Nov-2005
A residential assessment order had been made under the 1989 Act in care proceedings. When the centre recommended a second extension of the assessment, the council refused, saying that the true purpose was not the assessment of the child but the . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 09 December 2022; Ref: scu.228157

N (Minors): CA 23 Apr 1999

The estranged father appealed a refusal of the judge to order the mother’s co-habitee to leave the house occupied by the children. Concerns had been raised after allegations against the co-habitee of child sex abuse. Those matters were being investigated by the local authority. Representatives had told the court they did not intend to take public law proceedings with respect to the children. The court considered whether it had jurisdiction to make such an order.
Held: The decision by the judge had been an exercise of his discretion. He had not exercised it so wrongly as to justify. As to jurisdiction, such might exist but the point did not need to be explored.

Judges:

Lady Justice Butler-Sloss, Lord Justice Mummery

Citations:

[1999] EWCA Civ 1253

Jurisdiction:

England and Wales

Children

Updated: 09 December 2022; Ref: scu.146168

In re P (a Child) (Residence Order: A Child’s Welfare): CA 30 Apr 1999

The court considered an appeal against an order under section 91 to restrict further applications without the court’s prior consent.

Judges:

Butler-Sloss, Ward, Tuckey LJJ

Citations:

[1999] EWCA Civ 1323, [1999] 2 FLR 573, [2000] Fam 15

Links:

Bailii

Statutes:

Children Act 1989 91(14)

Jurisdiction:

England and Wales

Cited by:

Cited – Doncaster Metropolitan Borough Council v Haigh FD 22-Aug-2011
The Council sought to have certain aspects of a care application put into the public domain which would normally have remained private. Application was also made (by the father and the child) for an order restricting the right of the mother to make . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 09 December 2022; Ref: scu.146238

Re W (ex-parte orders): FD 2000

The circumstances in which ex parte relief is obtained in the Family Division are likely to vary very widely. Moreover, relief is often granted by the Division in circumstances which are very much removed from those in which ex parte relief will be granted in other areas of the law.
‘the court will not allow itself to be bamboozled by husbands who put their property in the names of close relations in circumstances where, taking a realistic and fair view, it is apparent that the recipient is a bare trustee and where the answer to the real question – Whose property is it? – is that it remains the husband’s property.’ and ‘the robustness with which the Family Division ought to deal in appropriate cases with husbands who seek to obfuscate or to hide or mask the reality behind shams, artificial devices and similar contrivances. Nor do I doubt for a moment the propriety and utility of treating as one and the same a husband and some corporate or trust structure which it is apparent is simply the alter ego or creature of the husband.’
and ‘On the other hand, and as Nicholas v Nicholas [1984] FLR 285 . . demonstrates, the court does not – in my judgment cannot properly – adopt this robust approach where, for example, property is held by a company in which, although the husband has a majority shareholding, the minority shareholdings are what Cumming-Bruce LJ at 287G called ‘real interests’ held by individuals who, as Dillon LJ put it at 292G, are not nominees but business associates of the husband.”

Judges:

Munby J

Citations:

[2000] 2 FLR 927

Jurisdiction:

England and Wales

Citing:

Cited – Nicholas v Nicholas CA 1984
The Court upheld an appeal against an order for the husband to procure the transfer to the wife of a property belonging to a company in which he held a 71% shareholding, the other 29% being held by his business associates. However, both members of . .

Cited by:

Confirmed – In re S (A Child) (Family Division: Without Notice Orders) FD 2001
Munby J considered the the duty of full and frank disclosure which exists on those who seek to use a without notice procedure within Children proceedings. Generally, when granting ex parte injunctive relief in the Family Division, the court will . .
Cited – Tower Hamlets v M and Others FD 27-Mar-2015
The authority sought orders to prevent the respondent children travelling to countries controlled by the ISIS groups. The parents being unlikely to be effective to restrain them, the court had made them wards of court.
Held: ‘the status of a . .
Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 07 December 2022; Ref: scu.545142

Rochdale Metropolitan Borough Council v A: 1991

Ten children were taken into care amid allegations of ritual satanic sex abuse.
Held: the allegations were not proved. All but four of the children were returned home. Injunctions were granted to protect the identify of the children and of the social workers involved. As to the actions of the social workers: ‘the local authority employees I have been concerned with are decent people. They are not heartless or ruthless. They acted throughout with the best interests of these children in mind as they saw them. Nevertheless mistakes were made and it is greatly to their credit that most of them have been acknowledged.’

Judges:

Mr Justice Douglas Brown

Citations:

[1991] 2 FLR 192

Statutes:

Children Act 1989

Jurisdiction:

England and Wales

Cited by:

See Also – British Broadcasting Company v Rochdale Metropolitan Borough Council and X and Y FD 24-Nov-2005
Application was made by the claimant for orders discharging an order made in 1991 to protect the identity of children and social workers embroiled in allegations of satanic sex abuse. The defendant opposed disclosure of the names of two social . .
Cited – Doctor A and Others v Ward and Another FD 8-Jan-2010
Parents wished to publicise the way care proceedings had been handled, naming the doctors, social workers and experts some of whom had been criticised. Their names had been shown as initials so far, and interim contra mundum orders had been made . .
Lists of cited by and citing cases may be incomplete.

Children, Media

Updated: 07 December 2022; Ref: scu.237480

Montgomery v Lockwood: 1987

The pursuer had no right of access to the child unless the court granted it and that the court could not make any order unless it was satisfied that to do so would be in the interests of the child.

Judges:

Sheriff Principal R.R. Taylor QC

Citations:

1987 SCLR 525

Jurisdiction:

Scotland

Citing:

Followed – Porchetta v Porchetta 1986
Before the Act of 1986 was enacted, a father did not have an absolute right to access to his child. He is only entitled to access if the court is satisfied that that is in the best interests of the child, and that the onus to show that is on the . .

Cited by:

Cited – Sanderson v McManus HL 6-Feb-1997
An order had been made refusing an unmarried father access to his child by the court after evidence that it would not be in the child’s best interests. The father appealed.
Held: The father could not appeal on a question of fact alone. There . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 07 December 2022; Ref: scu.237540

In Re W (Minors) (Child Abduction: Unmarried Father); In Re B (A Minor) (Child Abduction: Unmarried Father): FD 9 Apr 1998

An unmarried father has no rights as regards a child until an application is made, but a mother taking child abroad whilst a court application was continuing could be restrained as an act of child abduction through the court’s own parental rights and duties.

Judges:

Ward LJ

Citations:

Times 09-Apr-1998, Gazette 13-May-1998, [1999] Fam 1

Statutes:

Civil Aspects of International Child Abduction Act 1980

Jurisdiction:

England and Wales

Cited by:

Cited – In re D (A Child), (Abduction: Rights of Custody) HL 16-Nov-2006
The child had been born to parents who married and later divorced in Romania. The mother brought him to England without the father’s consent, and now appealed an order for his return.
Held: The mother’s appeal succeeded. The Convention . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 07 December 2022; Ref: scu.82279

In Re W v G (Paternity); In Re A (A Minor): CA 18 May 1994

The judge was wrong to limit his ability to draw inferences from a putative father’s refusal to take a test to discover paternity.

Citations:

Times 18-May-1994, [1994] 2 FLR 463

Statutes:

Family Law Reform Act 1969 23(1)

Jurisdiction:

England and Wales

Cited by:

Applied – Secretary of State for Work and Pensions v Jones FD 2-Jul-2003
The appellant Secretary of State challenged a decision of magistrates as to whether the respondent was the father of a child for whom Child Support was sought. The mother had been married, but had been living with the respondent at the appropriate . .
Followed – In re G (Parentage: Blood Sample) CA 1997
. .
Lists of cited by and citing cases may be incomplete.

Children, Evidence

Updated: 07 December 2022; Ref: scu.82282

In Re W (A Minor): CA 23 Mar 1993

It was right that public should know of the high cost of family litigation.

Citations:

Times 23-Mar-1993, [1993] 2 FLR 625

Jurisdiction:

England and Wales

Cited by:

Cited – CG v CW and Another (Children) CA 6-Apr-2006
A lesbian couple had split up and disputed the care of the children. An order had been made but then, in breach of that order, one removed the children overnight to Cornwall. An argument was made that the court had failed to give proper weight to . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 07 December 2022; Ref: scu.82263

Re J (A Child: Residential Assessment): FC 9 Apr 2021

Appeal by the local authority against the case management decision pursuant to s 38(6) of the Children Act 1989 it was he directed that the parents and the subject child should undergo a residential assessment at Symbol UK

Judges:

His Honour Judge Moradifar

Citations:

[2021] EWFC B18

Links:

Bailii

Jurisdiction:

England and Wales

Children

Updated: 07 December 2022; Ref: scu.662335

Re S (A Child): CA 30 Jul 2009

Appeals from a decision that the child of the family with whom she was concerned was habitually resident in this jurisdiction at the time, namely end of September 2007, when the father removed the child from London to his home in Belgium without the mother’s consent and at a time when he was able to gain possession of the child.

Citations:

[2009] EWCA Civ 1021, [2010] 1 FLR 1146, [2010] Fam Law 23

Links:

Bailii

Jurisdiction:

England and Wales

Children

Updated: 06 December 2022; Ref: scu.375980

H and others v London Borough of Wandsworth and others: Admn 23 Apr 2007

In three linked cases, unaccompanied asylum-seeking children had had assistance with housing from the local social services authorities. They claimed entitlement to support as former relevant children under section 20. The local authorities argued that they had provided accommodation under section 17 rather than section 20 of the 1989 Act.
Held: Once the section 20 duty arose, the local authority could not ‘finesse it away’ by claiming to exercise a different power.

Citations:

[2007] EWHC 1082 (Admin), (2007) 10 CCLR 441, [2007] 2 FLR 822

Links:

Bailii

Statutes:

Children Act 1989 17 20

Jurisdiction:

England and Wales

Cited by:

Helpful – S, Regina (on the Application of) v London Borough of Sutton CA 26-Jul-2007
The local authority owed the section 20(1) duty towards a 17 year old girl who was about to be released from a Secure Training Centre. It argued however that the duty no longer applied because she had agreed to go to a hostel for homeless women . .
Cited – M, Regina (on the Application of) v London Borough of Hammersmith and Fulham HL 27-Feb-2008
M, a girl aged 16 had become estranged from her mother, and sought housing assistance. She was not referred to the authority’s children’s services, and was not housed. The House examined the duties of local authorities under the section towards . .
Cited – G, Regina (on the Application of) v London Borough Of Southwark HL 20-May-2009
The House was asked whether when a child of 16 or 17 who was ejected from home and presents himself to a local children’s services authority and asks to be accommodated by them under section 20 of the Children Act 1989, it is open to that authority . .
Lists of cited by and citing cases may be incomplete.

Children, Local Government

Updated: 06 December 2022; Ref: scu.253291

ABC v Principal Reporter and Another (Scotland): SC 18 Jun 2020

These appeals concern the role of siblings in the procedures by which children’s hearings in Scotland make compulsory supervision orders (‘CSOs’). The principal issue concerns the procedures required to make sure that public authorities comply with the obligation in article 8 of the European Convention on Human Rights (‘ECHR’) to show respect for the private or family life established between a sibling and a child who might be the subject of a CSO.

Judges:

Lady Hale, Lord Kerr, Lord Wilson, Lord Hodge, Lady Arden

Citations:

[2020] UKSC 26

Links:

Bailii, Bailii Summary

Jurisdiction:

Scotland

Children, Human Rights

Updated: 05 December 2022; Ref: scu.651752

B v Romania (No 2): ECHR 19 Feb 2013

ECHR Article 8
Positive obligations
Article 8-1
Respect for family life
Respect for private life
Lack of adequate legal protection in a case concerning a mother’s committal to a psychiatric institution and the placement of her children in care: violations
Facts – The applicant was assisted by the social services from 1996 onwards, having been classified as a disabled person unfit to work. In 2000 she was diagnosed with ‘paranoid schizophrenia’. Two of her children were minors at the time. No measure of guardianship or administration was ever introduced for the applicant or her children. Since 2000 she has been admitted on numerous occasions to psychiatric institutions, after being taken there by the police. Her children have not been living with her; instead they were placed in residential care for abandoned children.
Law – Article 8
(a) The applicant’s confinement – In most of the cases previously heard by the Court concerning ‘persons of unsound mind’, the domestic proceedings concerning psychiatric confinement had been examined under Article 5 of the Convention. Consequently, in order to determine whether the confinement in the present case had complied with Article 8 of the Convention, the Court found it appropriate to refer, mutatis mutandis, to its case-law under Article 5 ss 1 (e).
Despite the fact that the law on the protection of disabled persons imposed an obligation to introduce a legal protection measure, in the form of guardianship or administration, no such measure had been adopted in respect of the applicant, even though her state of health had been known to the authorities well before the beginning of her periods of confinement. Her vulnerability had also been noted and brought to the attention of the domestic courts by numerous reports of the social services. But neither the social services nor the courts had drawn any conclusions as regards the legal protection of the applicant herself. It was precisely the shortcomings of the authorities which had contributed to depriving her of the guarantees available under mental-health legislation, in particular the right for the patient to be assisted when giving consent or the obligation to notify the patient’s legal representative of the measure of confinement and the reasons for its adoption. Recent amendments to mental-health legislation provided that if the patient had no legal representative and was unable to appoint one on account of mental incapacity, the hospital would be required to notify the relevant local authority promptly so that legal protection measures could be put in place. However, those new provisions had not benefited the applicant. The provisions of domestic law governing psychiatric confinement and the protection of persons unable to look after their own interests had not been applied to the applicant in the spirit of her right to respect for her private life under Article 8. The authorities had thus failed in their obligation to take appropriate measures for the defence of the applicant’s interests.
Conclusion: violation (unanimously).
(b) Placement of the applicant’s children in care – It was because of the lack of special protection for the applicant, who, in particular, was not assigned a lawyer during the placement proceedings or any guardian ad litem, that she had not been able to participate effectively in the proceedings concerning the placement of her children or to have her interests defended. In addition, her family situation had been examined on only two occasions in a period of twelve years. Lastly, there was no evidence that the social workers had maintained the regular contact with the applicant that would have afforded a good opportunity to make her views known to the authorities. For those reasons, the decision-making process leading to the placement of the applicant’s two minor children had not been conducted in compliance with her rights as guaranteed by Article 8 of the Convention.
Conclusion: violation (unanimously).
Article 41: EUR 10,000 in respect of non-pecuniary damage.

Citations:

1285/03 – Legal Summary, [2013] ECHR 393

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Human Rights, Children, Health

Updated: 05 December 2022; Ref: scu.491921

HBH, Regina (On the Application of) v Secretary Of State for the Home Department and Another: Admn 6 May 2009

The claimant challenged the procedures used to decide his age after he arrived in the UK and was prosecuted for immigration offences.

Judges:

Keith J

Citations:

[2009] EWHC 928 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Children, Crime, Immigration

Updated: 05 December 2022; Ref: scu.341856

Porchetta v Porchetta: 1986

Before the Act of 1986 was enacted, a father did not have an absolute right to access to his child. He is only entitled to access if the court is satisfied that that is in the best interests of the child, and that the onus to show that is on the father who seeks access. The child in this action of divorce, was only 18 months old. He had had almost no contact with his father, who had seen him only twice very briefly. The mother was adamantly opposed to access, and the judge was satisfied that any attempt at access at that time would only sustain this hostility and that the child would sooner or later sense it and suffer thereby. The only reason given for the father’s application was that he was the father of the child.
Held: Once the paramountcy of the child’s welfare was recognised, there could be no assumption of a right of access.

Judges:

Lord Dunpark

Citations:

1986 SLT 105

Statutes:

Law Reform (Parent and Child) (Scotland) Act 1986 3

Jurisdiction:

Scotland

Cited by:

Cited – Sanderson v McManus HL 6-Feb-1997
An order had been made refusing an unmarried father access to his child by the court after evidence that it would not be in the child’s best interests. The father appealed.
Held: The father could not appeal on a question of fact alone. There . .
Followed – Montgomery v Lockwood 1987
The pursuer had no right of access to the child unless the court granted it and that the court could not make any order unless it was satisfied that to do so would be in the interests of the child. . .
Followed – Russell v Russell 1991
. .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 05 December 2022; Ref: scu.237538

Regina v Royal Borough of Kensington and Chelsea (ex parte Kujtim): CA 31 Mar 1999

A person had been assessed by the local authority under section 47 as being a person in urgent need of care and attention which was not otherwise available to him, so that he satisfied the criteria laid down in section 21(1)(a). He claimed that, following that assessment, the local authority had to meet these needs by providing accommodation until, upon a reassessment, it was decided that his needs had changed.
Held: The argument succeeded. The contrary argument, that this was no more than a ‘target’ duty in the sense of the label used in R v Inner London Education Authority, Ex p Ali in relation to the Education Act 1944, was rejected: ‘Once a local authority has assessed an applicant’s needs as satisfying the criteria laid down in section 21(1)(a), the local authority is under a duty to provide accommodation on a continuing basis so long as the need of the applicant remains as originally assessed, and if, for whatever reason, the accommodation, once provided, is withdrawn or otherwise becomes unavailable to the applicant, then (subject to any negative assessment of the applicant’s needs) the local authority has a continuing duty to provide further accommodation.’

Judges:

Potter L

Citations:

[1999] EWCA Civ 1153, (1999) 2 CCLR 340, [1999] 4 All ER 161

Statutes:

National Assistance Act 1948 21(1)(a), National Health Service and Community Care Act 1990 47

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Inner London Education Authority, Ex parte Ali 1990
The broad duty imposed on a local education authority by section 8 ‘to secure that there shall be available for their area sufficient schools . . for providing primary education’ is a ‘target duty’. . .

Cited by:

Cited – Regina v London Borough of Barnet ex parte G; Regina v London Borough of Lambeth ex parte W; Regina v London Borough of Lambeth ex parte A HL 23-Oct-2003
The applicants sought to oblige the local authority, in compliance with its duties under the 1989 Act, to provide a home for children, and where necessary an accompanying adult.
Held: There were four hurdles for the applicants to cross. They . .
Lists of cited by and citing cases may be incomplete.

Housing, Children

Updated: 05 December 2022; Ref: scu.146068

V-B (Minors) (Abduction: Custody Rights): CA 17 Mar 1999

Rights of custody are to be distinguished from mere rights of access.

Citations:

[1999] EWCA Civ 1013, [1999] 2 FLR 192

Statutes:

Hague Convention on the Civil Aspects of International Child Abduction 1980 5(a), Child Abduction and Custody Act 1985

Jurisdiction:

England and Wales

Cited by:

Cited – In re D (A Child), (Abduction: Rights of Custody) HL 16-Nov-2006
The child had been born to parents who married and later divorced in Romania. The mother brought him to England without the father’s consent, and now appealed an order for his return.
Held: The mother’s appeal succeeded. The Convention . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 05 December 2022; Ref: scu.145928

Re X: FC 20 May 2020

Application for a parental order concerning a young child, X, born following a surrogacy arrangement entered into between the applicants, Mr and Mrs Y, and the respondents, Mr and Mrs Z.

Judges:

Mrs Justice Theis

Citations:

[2020] EWFC 39

Links:

Bailii

Jurisdiction:

England and Wales

Children

Updated: 04 December 2022; Ref: scu.651689

Re C (Children : COVID-19: Representation): CA 10 Jun 2020

Appeal from a decision to continue a fact-finding hearing in care proceedings concerning four young children in circumstances where leading counsel for one of the parents cannot be physically present because she is required to shield from the Covid-19 infection.

Judges:

Lord Justice Peter Jackson

Citations:

[2020] EWCA Civ 734

Links:

Bailii

Jurisdiction:

England and Wales

Children, Litigation Practice

Updated: 04 December 2022; Ref: scu.651254

Re A (Children): CA 7 Oct 2009

Appeal from order which transferred the residence of three children from their primary carer, the mother, to their father, whose contact to the children had sadly been non-existent for some 17 months.

Citations:

[2009] EWCA Civ 1141, [2010] 1 FLR 1083, [2010] Fam Law 27

Links:

Bailii

Jurisdiction:

England and Wales

Children

Updated: 04 December 2022; Ref: scu.377529

Zaffino v Zaffino: 2006

The court considered the treatment of a child’s objections to being returned to a home country by an order under the Act.

Citations:

[2006] 1 FLR 410

Jurisdiction:

England and Wales

Cited by:

Confirmed – Vigreux v Michel and Another CA 18-May-2006
The mother sought the return of her children to France. Her summons had been dismissed after balancing the policy of the Convention against the strength of the child’s objection to return together with certain welfare considerations. The . .
Cited – AF v M B-F FD 22-Feb-2008
The father sought the return of the two children to Poland after they had been brought to England by the mother. She said that she had come to seek work as a dentist, and had been unable to support the family in Poland. She said that her Polish . .
Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 04 December 2022; Ref: scu.265916

L, Regina (on the Application of) v Nottinghamshire County Council: Admn 26 Sep 2007

A social worker arranged for L, a seriously troubled young person who had been evicted from her mother’s home, to live for a few days in an hotel.
Held: As she had previously been looked after by the local authority for some time, this would be sufficient for her to become a relevant child under section 20. The classification or definition of what was being done by the council at the time, particularly where there was no assessment and the relevant matters were not in mind, could not possibly be determinative as to what had occurred. The child was a child in need, there had been a continuous duty to accommodate her under section 20, and she was therefore a former relevant child.

Judges:

Burton J

Citations:

[2007] EWHC 2364 (Admin)

Links:

Bailii

Statutes:

Children Act 1989 20

Jurisdiction:

England and Wales

Cited by:

Cited – M, Regina (on the Application of) v London Borough of Hammersmith and Fulham HL 27-Feb-2008
M, a girl aged 16 had become estranged from her mother, and sought housing assistance. She was not referred to the authority’s children’s services, and was not housed. The House examined the duties of local authorities under the section towards . .
Cited – G, Regina (on the Application of) v London Borough Of Southwark HL 20-May-2009
The House was asked whether when a child of 16 or 17 who was ejected from home and presents himself to a local children’s services authority and asks to be accommodated by them under section 20 of the Children Act 1989, it is open to that authority . .
Lists of cited by and citing cases may be incomplete.

Children, Local Government

Updated: 04 December 2022; Ref: scu.260202

Hesketh v Gowing: 1804

Where a father placed his children in the care of a nurse or servant, he might have financial responsibility for necessaries bought for the child.

Citations:

(1804) 5 Esp 131

Jurisdiction:

England and Wales

Cited by:

Cited – Kehoe, Regina (on the Application of) v Secretary of State for Work and Pensions HL 14-Jul-2005
The applicant contended that the 1991 Act infringed her human rights in denying her access to court to obtain maintenance for her children.
Held: The applicant had no substantive right to take part in the enforcement process in domestic law . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 01 December 2022; Ref: scu.228608

Rex v Friend: 1802

Where a mother had proper custody of a child, an agency of necessity extended to her purchase of necessaries for the child as well as for herself.

Citations:

(1802) Russ and Ry 20

Jurisdiction:

England and Wales

Cited by:

Cited – Kehoe, Regina (on the Application of) v Secretary of State for Work and Pensions HL 14-Jul-2005
The applicant contended that the 1991 Act infringed her human rights in denying her access to court to obtain maintenance for her children.
Held: The applicant had no substantive right to take part in the enforcement process in domestic law . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 01 December 2022; Ref: scu.228610

X County Council v A and another: 1984

The court made orders about the future of the child born to Mary Bell, who had been convicted at the age of 11 of the manslaughter of two little boys. He was asked to protect the new identities under which the child and her mother were living. Without a court order publication would not be a contempt of court. However, wardship proceedings, like other proceedings concerning the care and upbringing of children, are held in private in the higher courts and reporting them without leave may be a contempt. An order was made allowing the publication but only in such a way as to protect their identities. On the analogy of a Mareva injunction, he granted it against the world. He considered that if the court could protect proprietary interests in this way it ought also to be able to protect the interests of its wards. He was also conscious of the unfairness to the particular newspaper concerned in the case if it alone was prohibited from publication.

Judges:

Balcombe J

Citations:

[1984] 1 WLR 1422, [1985] All ER 53

Statutes:

Administration of Justice Act 1960 12(1)(a)

Jurisdiction:

England and Wales

Cited by:

Cited – Re S (A Child) CA 10-Jul-2003
The mother of the child on behalf of whom the application was made, was to face trial for murder. The child was in care and an order was sought to restrain publiction of material which might reveal his identity, including matters arising during the . .
Cited – R (Mrs) v Central Independent Television Plc CA 17-Feb-1994
The court did not have power to stop a TV program identifying a ward of court, but which was not about the care of the ward. The first instance court had granted an injunction in relation to a television programme dealing with the arrest and the . .
Cited – In re S (A Child) (Identification: Restrictions on Publication) CA 10-Jul-2003
An order was sought to protect from publicity a child whose mother faced trial for the murder of his brother. The child was now in care.
Held: The court must balance the need to protect the child with the need for freedom of the press. The . .
Lists of cited by and citing cases may be incomplete.

Children, Media

Updated: 01 December 2022; Ref: scu.184564

In Re G (Children) (Leave to Remove): CA 11 Dec 2007

An application was made with regard to the care arrangements for children. The parents were living in different countries.
Thorpe LJ stated: ‘ Accordingly, the only skeleton in support of the appellant’s notice is the skeleton settled by Mr Mostyn QC and Mrs Carew Pole as long ago as 12 October. The thrust of that skeleton is to suggest that the leading authority in this court, the case of Payne v Payne [2001] 1 FLR 1052, was now outdated and heavily criticised, both in this jurisdiction and beyond, by judges, practitioners and academics. The decision in Payne v Payne was, I think, available in February 2001, and in the skeleton argument it was suggested that it was antiquated, in that it reflected the view of a past age when joint residence orders would only be made in wholly exceptional circumstances. The essential complaint was that in modern times, when joint residence orders have become commonplace, judges were applying the principles in Payne v Payne, or some judges were applying the principles in Payne v Payne, which were predicated upon a status of sole residence order and sole primary carer. The skeleton, further emphasises two judgments at first instance, where judges of the Family Division have declined to follow the guidelines in Payne on the basis that the case before them was a case in which there was no clear primary carer.
That, in my judgment, would be an extremely difficult argument to advance in this court. Clearly this court is bound by the decision in Payne v Payne so long as there is not a self-evident social shift that requires its reconsideration. I am far from persuaded that there has been any social shift and would only emphasise that the decision in the influential case of D v D [2001] 1 FLR 495 was given some months earlier, on 20th November 2000. In D v D, both the President and Hale LJ emphasised that joint residence orders were certainly not to be labelled as exceptional. That would be an unwarranted gloss on the statute. They were part of the menu of choice for trial judges, and where the circumstances suggested that form of order then it was an order that would be supported by this court. That shift from a position that obtained in the 1990s must have been well in the mind of this court, given that both in Payne and in D v D the presiding judge was the former President, Baroness Butler-Sloss. Furthermore, as Mr Cobb has pointed out in his skeleton argument, an analysis of the facts in Payne v Payne demonstrates that the father there, prior to the judgment in the county court, had been having the children at his home for much the same proportion of the year as the father in this case.
So the grounds within the appellant’s notice, skilfully settled by counsel, opened with the first, that namely:
‘The current principles applicable in relocation cases need to be reviewed, as they place an impermissible gloss on the statute; wrongly prioritise one factor above all others (the impact of refusal on the primary carer); are out of step with modern views of the dynamics of family life and of the importance of co-parenting; are inconsistent with the approach taken in many overseas courts, both common-law and civil, and are the subject of serious public criticism, both popularly and by the legal community.’
A submission to that effect, I recognise, might be open in an appeal to the House of Lords, but plainly not at this level; and accordingly I refused permission on that ground whilst granting the limited opportunity on the remaining grounds, 2 to 12.
That resulted in a letter from the appellant’s solicitors, in which they somewhat retreated from an earlier stated intention to argue for permission on Ground 1 at this oral hearing, something that they were obviously entitled to do, given that the refusal had been only a paper refusal. However the letter of 16th retreated to the extent of this statement:
‘on reflection [we] think that Ground 1 has perhaps been too strongly stated. In essence we would wish to argue that the current principles as enunciated in Payne v Payne have been much misunderstood and frequently misapplied by lower courts (inasmuch as they appear to deduce from these principles (a), the prioritisation of one factor above all others – the impact of refusal on the primary carer – and (b), the disregard of modern views on the importance of co-parenting), and therefore should be restated in such a way that future misapplications and misunderstandings do not occur.’
‘ Mr Mostyn, at the very end of his submissions, came to address this point. That he had left it to the end is perhaps a reflection of the difficulties that confronted him in advancing it. A decision of this court stands and requires no correction, so long as the principles enunciated remain good. He was not suggesting that Payne v Payne had been wrongly decided and should therefore be revisited. He was only suggesting that it was being widely misunderstood. That does not seem to me to be an issue that can be in an individual case. In the individual case, all that is in issue is whether the judge has correctly or incorrectly understood and applied the principles. Mr Mostyn sought to contend that there was amongst the practitioners some sort of general perception that district judges at conciliation appointments are applying unfair pressure on respondents to relocation applications. My Lord, Wall LJ, quite properly stopped that line of submission and it is important, I think, to emphasise that applications for permission in this area are commonplace and in view of the importance that the decision has both for the children and for their emotionally distraught parents, we not infrequently grant some sort of oral hearing, generally on notice and generally with appeal to follow.
The volume of such applications and hearings is not inconsiderable and only a proportion of those reach the specialist law reports. I see almost all those cases and I certainly have no impression that the principles in Payne are being misunderstood and misapplied. Very often the trial takes place before a circuit judge who may not be a specialist in international family law and may have nothing but a private law ticket to equip him for the task, but cases in which we have had to intervene on the grounds of misdirection are infrequent. Sometimes this court has intervened and allowed an appeal. Sometimes this court has had no hesitation in upholding the decision below as a decision that particularly fell for the judge, who had had the advantage of seeing and hearing the oral evidence and who in the end had had to apply a very difficult balance of a number of competing factors.
These cases are particularly traumatic for the parties, since each of them conceives so much as being at stake. They are very, very difficult cases for the trial judges. Often the balance is very fine between grant and refusal. The judge is only too aware of how heavily invested each of the parents is in the outcome for which they contend. The judges are very well aware of how profoundly the decision will affect the future lives of the children and how difficult it will be for the disappointed parent to adjust to the outcome. Despite the difficulties that these cases present, certainly from the perspective of this court, the principles enunciated in Payne v Payne are well understood and have been of evident assistance to trial judges in the difficult task that they perform. That is all that I need to say about the submission with which Mr Mostyn concluded.

Judges:

Thorpe LJ, Arden LJ, Wall LJ

Citations:

[2007] EWCA Civ 1497, [2008] 1 FLR 1587

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Re-affirmed – Payne v Payne; P v P CA 13-Feb-2001
No presumption for Mother on Relocation
The mother applied for leave to return to New Zealand taking with the parties’ daughter aged four. The father opposed the move, saying that allowing the move would infringe his and the child’s right to family life. He had been refused residence.

Cited by:

Cited – In re AR (A Child: Relocation) FD 10-Jun-2010
Both parents had parental responsibility. The French mother wished to return to live in France and to take the five year old child with her, applying to court for the appropriate order.
Held: The court pointed to the real difficulties always . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 30 November 2022; Ref: scu.266571