Category: Family

State of The Netherlands v Reed: ECJ 17 Apr 1986

1. Article 10(1) of regulation no 1612/68 cannot be interpreted as meaning that the companion, in a stable relationship, of a worker who is a national of a member state and is employed in the territory of another member state must in certain circumstances be treated as his ‘spouse’ for the purposes of that provision.
2. The possibility for a migrant worker of obtaining permission for his unmarried companion to reside with him, where that companion is not a national of the host member state, can assist his integration in the host state and thus contribute to the achievement of freedom of movement for workers. Consequently, that possibility must be regarded as falling within the concept of a social advantage for the purposes of article 7(2) of Regulation no 1612/68.
It must therefore be concluded that a member state which grants such an advantage to its own nationals cannot refuse to grant it to workers who are nationals of other member states without being guilty of discrimination on grounds of nationality, contrary to articles 7 and 48 of the treaty.

Citations:

R-59/85, [1986] EUECJ R-59/85, [1987] 2 CMLR 448, [1986] ECR 1283

Links:

Bailii

Jurisdiction:

European

Family

Updated: 21 June 2022; Ref: scu.215432

Otobo v Otobo; O v O (Appeal against Stay: Divorce Petition): CA 2 Jul 2002

The husband, a wealthy Nigerian had supported further traditional families outside the UK. The wife appealed a stay on her divorce petition. The husband argued that her habitual residence did not support jurisdiction. Agreed expert evidence concluded that the marriage being recognised here the subsequent traditional marriages in Nigeria. The husband then shifted his ground to say that this marriage itself was only a customary marriage, and that the ceremony in church had been only a blessing. The judge had ordered a stay saying that a Nigerian order would be recognised here but not necessarily vice versa and that the facts and family history meant it would better be determined in Nigeria.
Held: The dispute boils down to competing beliefs as to the attractivemess to the parties of the respective jurisdictions in ancillary relief proceedings. In fact the husband had manipulated the application for a stay and the judge’s discretion had been wrongly exercised: ‘the grant of a stay works unfairness to the wife to a degree that is unacceptable.’ The stay was lifted.

Judges:

Dame Elizabeth Butler-Sloss DBE President of the Family Division Lord Justice Thorpe and Lord Justice Buxton

Citations:

[2002] EWCA Civ 949, [2003] Fam Law 12, [2002] 3 FCR 123, [2003] 1 FLR 192

Links:

Bailii

Statutes:

Domicile and Matrimonial Proceedings Act 1973 5(6)

Jurisdiction:

England and Wales

Citing:

Cited – de Dampierre v de Dampierre HL 1988
The existence and state of foreign proceedings are relevant to the exercise of the court’s discretion to stay an action on the ground of forum non conveniens. The essential test on which the court might exercise its discretion to stay the petition . .
Cited – Piglowska v Piglowski HL 24-Jun-1999
No Presumption of House for both Parties
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
Cited – Butler v Butler CA 6-Mar-1997
In divorce proceedings, the issue of forum conveniens is decided by the balance of fairness including convenience. In the end the judge’s discretion is bounded by the statutory considerations which rest upon an evaluation of fairness to the parties . .
See Also – Otobo v Otobo CA 5-Jul-2001
Application to vacate a fixture . .

Cited by:

Cited – Radmacher v Granatino CA 2-Jul-2009
Husband and wife, neither English, had married in England. Beforehand they had signed a prenuptial agreement in Germany agreeing that neither should claim against the other on divorce. The wife appealed against an order to pay a lump sum to the . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 18 June 2022; Ref: scu.175166

Rogan v Rogan: FD 18 Mar 2019

Restored hearing of the judgment summons issued by W for the committal of her former husband to prison for significant arrears of maintenance.

Citations:

[2019] EWHC 814 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 18 June 2022; Ref: scu.635813

Casdagli v Casdagli: HL 28 Oct 1918

The appellant pleaded as a bar to divorce proceedings before the English Courts that he had acquired an Egyptian domicile of choice. The Courts below decided it was impossible for a British subject to acquire an Egyptian domicile.
Held that a British subject may acquire an Egyptian domicile, and the appellant had in fact done so; therefore the English Courts had no jurisdiction to dissolve the appellant’s marriage.
Re Tootal’s Trusts, 23 Ch. D. 532, and dicta of Lord Watson in Abd-ul-Messih v. Farra, 13 A.C. 431, overruled.

Judges:

Lord Chancellor (Finlay), Viscount Haldane, Lords Dunedin Atkinson, and Phillimore

Citations:

[1918] UKHL 411, 56 SLR 411

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 18 June 2022; Ref: scu.631483

In re R (Family dispute: Evidence): CA 17 Jul 2008

The mother had made allegations of domestic violence against the father in her claim for a residence order. She appealed dismissal of the claim, saying that the judge had dismissed the case after hearing the mother’s evidence only on the basis that she had not discharged the burden of proof on her.
Held: In a disputed case, the judge should make no finding until all the evidence had been heard. This was a public law case, and the procedure of no case to answer has no place in it. The court had a duty to the child.

Judges:

Lord Justice Thorpe, Lord Justice Wall and Lord Justice Stanley Burnton

Citations:

Times 29-Aug-2008

Jurisdiction:

England and Wales

Citing:

Cited – In re Y and K (Children) CA 7-Apr-2003
. .
Cited – Somerset County Council v DFM (the Father) and Another; In re F CA 31-Jul-2007
. .
Lists of cited by and citing cases may be incomplete.

Family, Children

Updated: 18 June 2022; Ref: scu.279862

Wall v Wall: CA 27 Nov 2002

The wife sought permision to appeal against an ancillary relief order, relying on Lambert v Lambert, and saying that she had not received a fair hearing.
Held: Permission could only be granted if the court thought there was a real chance of success. That chance was not present.

Judges:

Munby J

Citations:

[2002] EWCA Civ 1897

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – White v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .
Cited – Lambert v Lambert CA 14-Nov-2002
The parties appealed an order for the division of the family’s 20 million pound fortune on divorce. The husband argued that his special contribution to the creation of the wealth meant that he should receive a greater share.
Held: The Act gave . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 18 June 2022; Ref: scu.217874

Hammoud v Al Zawawi (736): FD 26 Feb 2019

Application for the committal for alleged breaches of three orders of the High Court – no affidavit evidence as to failures alleged.

Citations:

[2019] EWHC 736 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Hammoud v Al Zawawi (697) FD 26-Feb-2019
. .
Lists of cited by and citing cases may be incomplete.

Family, Contempt of Court

Updated: 17 June 2022; Ref: scu.635804

Hammoud v Al Zawawi (697): FD 26 Feb 2019

Citations:

[2019] EWHC 697 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Hammoud v Al Zawawi (736) FD 26-Feb-2019
Application for the committal for alleged breaches of three orders of the High Court – no affidavit evidence as to failures alleged. . .
Lists of cited by and citing cases may be incomplete.

Family, Contempt of Court

Updated: 17 June 2022; Ref: scu.635803

Hamilton and Stewart v Wright and Sharp: HL 16 Jan 1880

S. was married to M. in 1838, who in 1841 deserted her. In 1854 S. went through a ceremony of marriage with W. without taking any sufficient means to ascertain whether M. was still alive. In 1875 W. discovered for the first time that there had been a prior marriage with M., and on inquiry found without any difficulty that he was still living. Prior to this, by arrangement between W. and S., the sum of pounds 65 had been deposited with two persons as trustees for behoof of S. in liferent and her two children by W. in fee. In a competition between S. and W. as to this money, held (1) that in point of fact the money was part of the proceeds of S.’s own industry; and (2) that in the peculiar circumstances of the case she was entitled to have it paid to her.
Question-Whether where a marriage was a nullity from bigamy, the guilty wife forfeits all her rights in favour of the innocent husband, and whether the jus mariti operates as in the case of a lawful husband?
Where a party had married a second time while her first husband was still alive, by arrangement between the parties, a sum was conveyed to trustees for behoof of the wife and the children by that marriage. Upon its subsequently being ascertained by the second husband that his marriage was null, a dispute arose as to the right to the sum in question. Held that as judging from the pleadings it was possible that in the result it might be held that the fund in question belonged to the wife irrespective of whether there was a marriage or not, the action was not incompetently brought in the Sheriff Court.

Citations:

[1880] UKHL 293, 17 SLR 293

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 17 June 2022; Ref: scu.635625

C v C: FD 22 Nov 2018

Application by a wife for financial remedy orders – extent to which there should be a departure from equality of division of the assets on the basis of the husband’s post-separation endeavours and his creation of what he asserts to be non-matrimonial property.

Citations:

[2018] EWHC 3186 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 17 June 2022; Ref: scu.630620

Hill and Another v Haines: ChD 3 May 2007

The husband and wife had separated and divorced. In ancillary proceedings, the family home had been transferred to the wife under a court order. The judge had noted that the husband was hopelessly insolvent, and he was made bankrupt some time later on his own petition. The trustees appealed refusal of the court to set aside the transfer.
Held: A transfer made under such an order was not a transfer of value. Many factors of no relevance to the Insolvency Acts were to be taken into account. The wife had not given up all her rights under the Act, since a furthe rapplication remained possible. It was a transfer at an under-value, and the court did not have the discretion sought.

Judges:

Pelling QC J

Citations:

[2007] EWHC 1012 (Ch), Times 14-May-2007

Links:

Bailii

Statutes:

Insolvency Act 1986 339, Matrimonial Causes Act 1993 39

Jurisdiction:

England and Wales

Citing:

Cited – Re Thoars (Dec’d); Reid v Ramlort Ltd ChD 2003
The company claimed the benefit of an insurance policy. They had paid certain premiums and the trustee had made a declaration that it was held on trust for the company. The insured died in Scotland, intestate and insolvent.
Held: The . .
Cited – In Re Pope ex parte Dicksee 1908
In a post-nuptial settlement, the wife had given up all her rights in return for a transfer to her of property from her husband who was later made bankrupt.
Held: Sir Herbert Cozens-Hardy MR said: ‘I am unable to adopt the view that there must . .
Cited – Re Abbot (A Bankrupt), ex parte Trustee Of The Property Of The Bankrupt v Abbot QBD 1983
An ancillary relief order was made in December 1978, following a compromise agreement. It provided for the sale of the former matrimonial home and the payment to the wife from the proceeds of sale of andpound;18,000. The husband was adjudicated . .
Cited – Re Kumar (A Bankrupt), ex parte Lewis v Kumar 1993
H had transferred his interest in the jointly owned matrimonial home to W for her promise to have sole liability for the mortgage debt. Nearly a year later her divorce claim for capital provision was dismissed by consent on the basis that H had . .
Cited – Ramlort Ltd v Michael James Meston Reid CA 8-Jul-2004
The company sought to claim under a life policy. The deceased had died in Scotland insolvent. The trustee of the policy had declared that he held it on trust for the claimant, but the defendant, the judicial factor of the estate, said the . .
Cited – Xydhias v Xydhias CA 21-Dec-1998
The principles of contract law are of little use when looking at the course of negotiations in divorce ancillary proceedings. In the case of a dispute the court must use its own discretion to determine whether agreement had been reached. Thorpe LJ . .
Cited – G v G (Minors: Custody Appeal) HL 25-Apr-1985
The House asked when a decision, on the facts, of a first instance court is so wrong as to allow it to be overturned on appeal.
Held: The epithet ‘wrong’ is to be applied to the substance of the decision made by the lower court. ‘Certainly it . .
Cited – McMinn v McMinn 2003
A section 27 claim cannot be pursued by a surviving spouse. Black J said: ‘It is clearly established that until an ancillary relief order has been made, an ancillary relief claim is not a cause of action. This appears to be because of the . .
Cited – Albert v Albert 1996
The court considered the duty of a family court when deciding ancillary relief applications where the husband is bankrupt. Millett LJ said: ‘The Family Division is concerned to ascertain the amount of the bankrupt’s income and to decide how much of . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Family

Updated: 17 June 2022; Ref: scu.251817

BT v CU: FC 1 Nov 2021

Judges:

Mr Justice Mostyn

Citations:

[2021] EWFC 87, [2021] WLR(D) 557, [2022] 1 WLR 1349

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Cited – Gallagher v Gallagher (No 1) (Reporting Restrictions) FC 13-Jun-2022
H sought an order restricting reporting of the divorce financial remedy proceedings, or an anonymity order.
Held: The application was refused save as to identification of the children, and certain tax matters. . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 16 June 2022; Ref: scu.669225

Fields v Fields: FD 4 Jun 2015

Wife’s claim for financial remedies after a divorce.
Holman J said: ‘The family courts must be more transparent and there is no good basis for making an exception of financial cases. Such cases are heard in public on appeal to the Court of Appeal and the Supreme Court, and the law reports and press reporting are riddled with considerable intimate and financial detail of many financial cases on appeal. Accredited journalists are, in any event, entitled to be present even when the court is sitting in private, subject to strict and limited exceptions. To permit the presence of accredited journalists, but then tightly to restrict what they can report, creates a mere illusion of transparency.’

Judges:

Holman J

Citations:

[2015] EWHC 1670 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Gallagher v Gallagher (No 1) (Reporting Restrictions) FC 13-Jun-2022
H sought an order restricting reporting of the divorce financial remedy proceedings, or an anonymity order.
Held: The application was refused save as to identification of the children, and certain tax matters. . .
Cited – Gallagher v Gallagher (No 1) (Reporting Restrictions) FC 13-Jun-2022
H sought an order restricting reporting of the divorce financial remedy proceedings, or an anonymity order.
Held: The application was refused save as to identification of the children, and certain tax matters. . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 16 June 2022; Ref: scu.549011

A v M: FC 5 Nov 2021

Claim by the applicant (‘the wife’) against the respondent (‘the husband’) for financial remedies following divorce.

Judges:

Mr Justice Mostyn

Citations:

[2021] EWFC 89

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Gallagher v Gallagher (No 1) (Reporting Restrictions) FC 13-Jun-2022
H sought an order restricting reporting of the divorce financial remedy proceedings, or an anonymity order.
Held: The application was refused save as to identification of the children, and certain tax matters. . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 16 June 2022; Ref: scu.671044

AJ v DM: FD 6 Mar 2019

W’s application for leave to amend her petition for divorce from the residual ground of sole domicile, to indent 2 of Article 3(1)(a) of Council Regulation 2201/2003 – namely, that the petitioner and respondent were last habitually resident in England and Wales and that the petitioner still resides in this jurisdiction.

Judges:

Cohen J

Citations:

[2019] EWHC 702 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 14 June 2022; Ref: scu.635807

G v G: HL 8 Feb 1924

A woman, as a condition of her marriage, stipulated that for the first year after the marriage there should be no sexual intercourse, and her intended husband consented to the condition. The parties were married on 5th November 1913, the husband being then 29 years old and the wife 34. On the 16th November they went to India where they lived together till April 1914. During this period no intercourse was attempted, the bargain of abstention being kept by the husband. In April 1914 the wife returned to Scotland with her husband’s consent. She rejoined her husband in India on 16th December 1914, and the parties again lived together in India till September 1915. During this period the wife, in spite of the fact that the period during which there was to be no sexual intercourse had expired, refused to consummate the marriage though the husband made repeated efforts to do so. In September 1915 the wife returned home to undergo an operation for appendicitis. The husband thereafter was called up for military service, and during the next five years the spouses were never together. In September 1920 the husband was released from military duties and rejoined his wife in Scotland on 13th November of that year when they came together at the house of the husband’s father in Perth, sharing the same bed from the 15th to the 20th. During the period from the 15th to the 20th the husband again attempted to have intercourse, but his efforts were repulsed. On 20th November the wife left for Glasgow and thereafter the parties did not meet again. On 14th April 1921, after the marriage had subsisted for upwards of eight years, during which however, owing to war conditions and other reasons, there were only the three periods referred to of five months, nine months, and one week, during which the spouses lived together, the husband raised an action of nullity of marriage against the wife on the ground that she was incapable of consummating the marriage. Alternatively he asked for divorce on the ground of desertion, the desertion being qualified as a wilful and malicious refusal of carnal intercourse. There was no structural incapacity on the part of the wife, and it was not disputed that the husband was vir potens.
Held (reversing the judgment of the Second Division, Lord Anderson dissenting) that the inference from the facts was that the wife’s refusal of sexual intercourse was due, not to willfulness, but to incapacity on her part to consummate the marriage, arising from her invincible repugnance to the sexual act, and that accordingly decree of nullity fell to be granted.

Judges:

Lord Dunedin, Lord Atkinson, Lord Shaw, Lord Phillimore, and Lord Blanesburgh

Citations:

[1924] UKHL 445, 61 SLR 445

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 14 June 2022; Ref: scu.631551

Morgan As Attorney of Sir Peter Shaffer v Cilento, Shaffer, Shaffer, Shaffer, and Minutolo: ChD 9 Feb 2004

The deceased, a playwright had moved to Australia in his last years, though he returned to and died in London. The claimants sought provision from his estate, but it was argued that he had changed domicile to Australia, and that the 1975 Act did not apply.
Held: He had acquire a domicile of choice in Australia. His return to England was not sufficiently unconditional to evidence abandonment of his Australian domicile. ‘it may be that his intention to return to Queensland was withering. But I do not consider that it died before Anthony did. ‘

Judges:

The Honourable Mr Justice Lewison

Citations:

[2004] EWHC 188(Ch), [2004] WTLR 457

Links:

Bailii

Statutes:

Inheritance (Provision for Family and Dependents) Act 1975

Jurisdiction:

England and Wales

Citing:

Cited – Udny v Udny HL 1869
Revival of domicile of origin after loss of choice
The House considered the domicile of the respondent’s father at the time of the respondent’s birth. The father had been born in Scotland but had left Scotland and taken a lease of a house in London. He had a castle in Scotland but that was not . .
Cited – Re Flynn 1968
The court had to decide on the intentions of the deceased with regard to domicile: ‘In one sense there is no end to the evidence that may be adduced; for the whole of a man’s life and all that he has said and done, however trivial, may be prayed in . .
Cited – Inland Revenue Commissioners v Bullock CA 1976
The court was asked to decide whether the taxpayer’s house was his principal home. Buckley LJ discussed the nature of ‘residence’: ‘A man may have homes in more than one country at one time. In such a case, for the purpose of determining his . .

Cited by:

Cited – Barlow Clowes International Ltd and Others v Henwood CA 23-May-2008
The receiver appealed against an order finding that the debtor petitioner was not domiciled here when the order was made. The debtor had a domicile of origin in England, but later acquired on in the Isle of Man. He then acquired a home in Mauritius . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Family

Updated: 14 June 2022; Ref: scu.193415

Gavin’s Trustees v Johnston’s Trustees: HL 20 Jul 1903

By an antenuptial contract of marriage the trustees were directed to pay the annual proceeds of the estate conveyed to them by the wife and her father to her, and after her death, in the event of her being survived by her husband, to him, and on the death of both spouses to pay and deliver over the fee or capital to the child or children of the marriage, declaring that if any child should die before the said provision should have been paid or become payable, leaving issue, said issue should have right to their parent’s share.
One daughter was born of the marriage. The marriage was dissolved by decree of divorce in an action by the wife against the husband for desertion. The wife died survived by the divorced husband and the daughter of the marriage.
Held, assuming for the purposes of the case that the fee of the trust estate had vested in the daughter, that in a question as to the daughter’s rights under the marriage-contract, the decree of divorce was not equivalent to the death of the husband; that the fee was not payable to the daughter until the death of the husband; and that the proceeds of the funds during the husband’s survivance fell into the executry estate of the wife.
Opinion ( per Lord Davey) that the fee of the trust estate had not vested in the daughter, there being a destination-over to her issue in the event of her not surviving the period of payment.
Opinion upon this question reserved per Lord Shand and Lord Robertson.

Judges:

Lord Chancellor (Halsbury), Lord Shand, Lord Davey, and Lord Robertson

Citations:

[1903] UKHL 879, 40 SLR 879

Links:

Bailii

Jurisdiction:

Scotland

Family

Updated: 13 June 2022; Ref: scu.630581

N v N: CA 26 Mar 2014

Circumstances in which a court may, on the grounds of material non-disclosure, set aside an order for financial provision following divorce.

Judges:

Lord Justice McFarlane

Citations:

[2014] EWCA Civ 314

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 13 June 2022; Ref: scu.523296

Kyte v Kyte: CA 22 Jul 1987

The parties disputed an ancillary relief claim on their divorce. The husband had been suicidally depressed. The wife had committed adultery over a long time and also assisted her husband’s failed suicide. The husband now sought to rely upon her behaviour, saying it would be inequitable to ignore it.
Held: The husband’s appeal was allowed. The court was obliged to consider the behaviour of both parties. The wife’s deceit had been motivated by gain, and it would be wrong to ignore it. Referring to section 23(2)(g) (Purchas LJ): ‘The section refers to ‘the conduct of each of the parties’ and this must relate to relevant conduct and does not envisage one or the other being blameless . . The court is entitled, in my judgment, to look at the whole of the picture, including the conduct during the marriage and after the marriage which may or may not have contributed to the breakdown of the marriage or which in some other way makes it inequitable to ignore the conduct of each of the parties. A clear example of such a case is where the parties may each not have been blameless (almost inevitably in a normal marriage) but where the imbalance of conduct one way or other would make it inequitable to ignore the comparative conduct of the parties’.
‘The conduct of the wife not only in actively assisting or, alternatively, taking no steps to prevent the husband’s attempts at suicide in the presence of the motive of gain which the registrar found on ample evidence to be established, together with her wholly deceitful conduct in relation to her association with Gregory, would amount to conduct of a gross and obvious kind which would have fallen within the concept under the old law and, in my judgment, could certainly render it inequitable to ignore it even against the conduct of the husband which contributed to the unhappy conditions which existed during the marriage and afterwards as a result of the husband’s manic depression.’ W’s lump sum was reduced accordingly.

Judges:

Purchas, Nicholls and Russell LJJ

Citations:

[1988] Fam 145, [1987] 3 WLR 1114, [1987] 3 All ER 1041, [1988] FCR 325, [1988] Fam Law 86, (1988) 152 JPN 223, (1987) 84 LSG 3529

Statutes:

Matrimonial Causes Act 1973 25(2)(g), Matrimonial and Family Proceedings Act 1984 3

Jurisdiction:

England and Wales

Citing:

Cited – Vasey v Vasey CA 1985
The wife had deserted her husband. The magistrates reduced her maintenance saying that her behaviour was gross and obvious.
Held: Her appeal was upheld. The magistrates should have first made findings on each element listed in 3(1) and only . .
Cited – Wachtel v Wachtel CA 8-Feb-1973
The court described the 1969 and 1970 Acts as ‘a reforming statute designed to facilitate the granting of ancillary relief in cases where marriages have been dissolved . . We regard the provisions of sections 2,3, 4 and 5 of the Act of 1970 as . .
Cited – Hall v Hall CA 1984
After divorce proceedings had commenced, the wife visited the husband, then living with someone else, and stabbed him. She now appealed an order for maintenance reduced because of her conduct.
Held: The conduct was clearly gross and obvious, . .
Cited – M v M (Financial Provision: Conduct) 1981
W had been confined to a mental institution after being found not guilty of the murder of her two children by reason of insanity. Her release on conditional discharge was anticipated, and application was made to vary the maintenance order.
Cited – Robinson v Robinson (Practice Note) CA 2-Jan-1982
The husband was a serving soldier who had had various postings abroad. The wife returned home, where she discovered that she was pregnant. He followed her home, but she left him, and applied for maintenance. The justices found that she had deserted . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 13 June 2022; Ref: scu.235269

G v G (Financial Provision: Separation Agreement): CA 28 Jun 2000

The parties had been married before and had signed a prenuptial agreement.
Held: Thorpe LJ set out the duties of a judge in ancillary relief applications: ‘A judge has to do fairness between the parties, having regard to all the circumstances. He must be free to include within that discretionary review the factors which compelled the wife to terminate the marriage as she did. The point was essentially taken as a defensive shield to the reliance upon the duration submission. There must surely be room for the exercise of a judicial discretion between the pole of a wife who is driven to petition by the husband’s unfeeling misconduct and that of a wife who exits from a marriage capriciously and for her own advantage. It seems to me that the judge was doing no more than taking his bearings as to where he stood along that path.’

Judges:

Thorpe LJ

Citations:

[2004] 1 FLR 1011

Statutes:

Matrimonial Causes Act 1973 25(2)(d)

Jurisdiction:

England and Wales

Cited by:

Cited – Miller v Miller; M v M (Short Marriage: Clean Break) CA 29-Jul-2005
The parties contested ancillary relief where there had been only a short marriage, but where here were considerable family assets available for division. The wife sought to rely upn the husband’s behaviour to counter any argument as to the shortness . .
Cited – Miller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
Cited – Radmacher (Formerly Granatino) v Granatino SC 20-Oct-2010
The parties, from Germany and France married and lived at first in England. They had signed a pre-nuptial agreement in Germany which would have been valid in either country of origin. H now appealed against a judgment which bound him to it, . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 13 June 2022; Ref: scu.235281

Currey v Currey: CA 8 Dec 2003

Appeals against ancillary relief orders and costs orders. The husband complained that the judge had in effect taken over the case asking leading questions of the parties.
Held: The judge’s task in a family matter was to obtain an accurate picture of the parties positions, and for that purpose had the power and possibly a duty to examine witnesses to achieve that end.

Judges:

Thorpe, Buxton, Neiberger LJJ

Citations:

[2003] EWCA Civ 1974, Times 26-Nov-2004

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Currey v Currey CA 18-Oct-2006
Where one party in an ancillary relief claim was not entitled to legal aid, but showed a need for legal representation which he or she could not afford, the court could make an order requiring the other party to make a costs allowance. The nature of . .
Lists of cited by and citing cases may be incomplete.

Family, Costs

Updated: 13 June 2022; Ref: scu.201579

Taylor v Taylor: CA 20 Nov 2001

Renewed application for permission to appeal by Ms T against an order requiring her to vacate the matrimonial home within a period of about 14 days and thereafter not to return during the pendency of the order.
Held: Refused

Judges:

Thorpe LJ

Citations:

[2001] EWCA Civ 1814

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 13 June 2022; Ref: scu.201532

Otobo v Otobo: CA 5 Jul 2001

Application to vacate a fixture

Citations:

[2001] EWCA Civ 1143

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Otobo v Otobo CA 18-Jul-2001
Application for permission to appeal a stay – jurisdiction . .
See Also – Otobo v Otobo; O v O (Appeal against Stay: Divorce Petition) CA 2-Jul-2002
The husband, a wealthy Nigerian had supported further traditional families outside the UK. The wife appealed a stay on her divorce petition. The husband argued that her habitual residence did not support jurisdiction. Agreed expert evidence . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 13 June 2022; Ref: scu.201275

Nayler and Another v Beard: CA 24 Jul 2001

Application for permission to appeal against an order made in civil non-matrimonial proceeding. The appeal raises questions as to the circumstances in which affidavits of means sworn by a party in matrimonial proceedings may be the subject of disclosure and inspection in separate civil proceedings to which he is a party and as to the identity of the court which should be asked to resolve any such issue.

Judges:

Hale LJ, Wilson J

Citations:

[2001] EWCA Civ 1201, [2001] 2 FLR 1346, [2001] CP Rep 104, [2001] 3 FCR 61, [2001] Fam Law 801

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice, Family

Updated: 13 June 2022; Ref: scu.201269

Maskell v Maskell: CA 8 May 2001

Ancillary relief application

Judges:

Thorpe LJ, Bell J

Citations:

[2001] EWCA Civ 858, [2003] 1 FLR 1138.

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Martin-Dye v Martin-Dye CA 25-May-2006
The court was asked how to achieve fairness in ancillary relief proceedings on a divorce as respects pension entitlements. The parties had sufficient to allow a clean break, but the assets mixture included sums invested which would be returned only . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 11 June 2022; Ref: scu.201066

Mackenzie v Mackenzie: HL 16 May 1895

Evidence on which, in an action of divorce for desertion brought by a husband, it was held (in aff. judgment of Second Division) that the wife had Proved S vitia On The Part of The Husband Such As Would Have Entitled Her To A Decree of Separation, and Therefore That The Husband Was Not Entitled To Decree of Divorce.
Opinion by Lord Watson, that section 11 of the Conjugal Rights Act of 1861, which provides ‘that it shall not be necessary, prior to any action for divorce, to institute against the defender any action of adherence,’ was not intended to alter the substance of the older statute law, but merely to simplify procedure, and that ‘reasonable cause’ in the sense of the Act 1573, cap. 55, was simply such cause as would have afforded a good answer to an action for adherence.
Question, whether there might not be circumstances affording a sufficient defence to an action for adherence which yet would not establish the right to a decree of separation.
A husband having appealed unsuccessfully to the House of Lords against an interlocutor of the Court of Session assoilzieing his wife from the conclusions of an action of divorce for desertion which he had brought against her, the wife, although having separate estate, was allowed costs, to be taxed as between agent and client.

Judges:

Lord Chancellor Lord Watson Lord Ashbourne Lord Macnaghten Lord Morris

Citations:

[1895] UKHL 455, 32 SLR 455

Links:

Bailii

Jurisdiction:

England and Wales

Family, Costs

Updated: 11 June 2022; Ref: scu.634058

Inland Revenue Commissioners v Bullock: CA 1976

The court was asked to decide whether the taxpayer’s house was his principal home. Buckley LJ discussed the nature of ‘residence’: ‘A man may have homes in more than one country at one time. In such a case, for the purpose of determining his domicile, a further enquiry may have to be made to decide which, if any, should be regarded as his principal home.’ and ‘I do not think that it is necessary to show that the intention to make a home in the new country is irrevocable or that the person whose intention is under consideration believes that for reasons of health or otherwise he will have no opportunity to change his mind. In my judgment, the true test is whether he intends to make his home in the new country until the end of his days unless and until something happens to make him change his mind.’

Judges:

Buckley LJ

Citations:

[1976] STC 409, [1976] 1 WLR 1178

Jurisdiction:

England and Wales

Cited by:

Cited – Morgan As Attorney of Sir Peter Shaffer v Cilento, Shaffer, Shaffer, Shaffer, and Minutolo ChD 9-Feb-2004
The deceased, a playwright had moved to Australia in his last years, though he returned to and died in London. The claimants sought provision from his estate, but it was argued that he had changed domicile to Australia, and that the 1975 Act did not . .
Cited – Agulian and Another v Cyganik CA 24-Feb-2006
The question was whether the deceased had lost his domicile of birth and acquired one of choice when living and working in the UK for 43 years. He had retained land in Cyprus, but lived here.
Held: He had retained his domicile of birth: . .
Cited – Gaines-Cooper v HM Revenue and Customs ChD 13-Nov-2007
The parties disputed the domicile of the tax-payer. He had a domicile of origin in the UK, but asserted that he had acquired a domicile of choice in the Seychelles. The Special Commissioners had allowed, in assessing the domicile at any time, of . .
Cited – Barlow Clowes International Ltd and Others v Henwood CA 23-May-2008
The receiver appealed against an order finding that the debtor petitioner was not domiciled here when the order was made. The debtor had a domicile of origin in England, but later acquired on in the Isle of Man. He then acquired a home in Mauritius . .
Cited – Holliday and Another v Musa and Others CA 30-Mar-2010
The adult children of the deceased appealed against a finding that their father had died domiciled in the UK, and allowing an application under the 1975 Act. He had a domicile of origin in Cyprus but had lived in England since 1958. . .
Lists of cited by and citing cases may be incomplete.

Income Tax, Family, Taxes Management

Updated: 11 June 2022; Ref: scu.261301

Bater v Bater: CA 1951

The wife petitioned for divorce, alleging cruelty.
Held: It had not been a misdirection for the petitioner to have to prove her case beyond reasonable doubt: ‘A high standard of proof’ was required because of the importance of such a case to the parties and the community. although it was a misdirection for a judge in matrimonial proceedings to say that the criminal standard of proof applied to allegations of cruelty it was correct to say that they had to be proved beyond reasonable doubt.
Denning LJ: ‘The difference of opinion which has been evoked about the standard of proof in recent cases may well turn out to be more a matter of words than anything else. It is of course true that by our law a higher standard of proof is required in criminal cases than in civil cases. But this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard.
As Best CJ and many other great judges have said, ‘in proportion as the crime is enormous, so ought the proof to be clear’. So also in civil cases, the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter. A civil court, when considering a charge of fraud, will naturally require for itself a higher degree of probability than that which it would require when asking if negligence is established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature; but still it does require a degree of probability which is commensurate with the occasion. Likewise, a divorce court should require a degree of probability which is proportionate to the subject-matter.’

Judges:

Bucknill LJ, Somervell LJ, Denning LJ

Citations:

[1951] P 35

Jurisdiction:

England and Wales

Citing:

Cited – Davis v Davis 1950
. .

Cited by:

Cited – AN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
Cited – Blyth v Blyth HL 1966
The House was asked as to the standard of proof required to establish that adultery had been condoned under the subsection.
Held: Lord Denning said: ‘In short it comes to this: so far as the grounds for divorce are concerned, the case, like . .
Cited – Khera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department HL 10-Feb-1983
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal . .
Cited – In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL 11-Jun-2008
Balance of probabilities remains standard of proof
There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
Lists of cited by and citing cases may be incomplete.

Evidence, Family

Updated: 11 June 2022; Ref: scu.237705

Wells v Wells: CA 20 Mar 2002

The court considered an application for ancillary relief. The assets were substantial, but before the judge was to deliver his judgment he accepted evidence from the husand that the sale of his business had fallen through and H’s income substantially reduced.The judge had achieved a clean break by allocating properties to the respective parties, giving priority to the children who would live with W in the matrimonial home. H appealed saying that the judge had provided for the wife, and given what was left to the hudband.
Held: W had been left secure, with H bearing substantial risks dependent upon the future of the business. However H had been concerned to keep his business. The judge had failed to address the issue of the husband’s needs, and the periodical payments for the children were unsustainable. The order was varied.

Citations:

[2002] EWCA Civ 476, [2002] EWCA Civ 475, [2002] 2 FLR 97

Links:

Bailii, Bailii

Statutes:

Matrimonial Causes Act 1973 825

Jurisdiction:

England and Wales

Citing:

Cited – Leadbeater v Leadbeater 1985
The court considered the case of a couple, in their mid-forties. Both had previously been married and both their former spouses married each other. They enjoyed a high standard of living. W brought with her two (2) adopted children from the former . .

Cited by:

Cited – Sorrell v Sorrell FD 29-Jul-2005
The parties contested ancillary relief on their divorce. The marriage had been very long, and the assets were very substantial. The husband contended that these assets represented an exceptional contribution on his part.
Held: In this case an . .
Cited – Miller v Miller; M v M (Short Marriage: Clean Break) CA 29-Jul-2005
The parties contested ancillary relief where there had been only a short marriage, but where here were considerable family assets available for division. The wife sought to rely upn the husband’s behaviour to counter any argument as to the shortness . .
Cited – Myerson v Myerson (No 2) CA 1-Apr-2009
The couple had compromised a very substantial ancillary relief claim on divorce, but the husband now said that the value of the shareholdings from which payment was to be made had collapsed.
Held: His appeal was dismissed. The principles for . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 11 June 2022; Ref: scu.216999

Taylor v Taylor: CA 20 Jul 2004

The wife sought to challenge in ancillary relief proceedings the behaviour of the husband with respect to the assets of his company.
Held: It was inappropriate to refer ancillary relief proceedings in divorce to the Companies Court. The true issue here was the alleged breach by the husband of orders for the sale of his optician’s businesses. The wife was entitled to proper investigation of what he had done to comply with the order.

Judges:

Thorpe, Clarke LJJ

Citations:

[2004] EWCA Civ 1022, Times 06-Sep-2004

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 11 June 2022; Ref: scu.199995

McFarlane v McFarlane; Parlour v Parlour: CA 7 Jul 2004

Appeals were made against orders for periodical payments made against high earning husbands. The argument was that if the case of White had decided that capital should be distributed equally, the same should apply also to income.
Held: The distinction between capital and income awards is no longer conclusive, having arisen in part from historical causes. Once each party had been put in a position to satisfy their reasonable income needs, the balance of available income could be divided between the parties: ‘The statute is a flexible code designed to enable the court to achieve a fair outcome. Periodical payments are one part of that code. The principle of the clean break is now, in my judgment, contained in section 25A. If, in exceptional cases such as the present, periodical payments can be used to enable a payee to accumulate capital and thus facilitate a termination of financial obligations within a reasonable time, such a use seems to me fair and square within the statutory objective. ‘ In Parlour, the wife had supported her husband in a way which had facilitated his continued high earnings, and she should be allowed an excess income to build up capital over the next four years, whilst her husban would still have a high income. The appeal was also allowed in McFarlane.

Judges:

Lord Justice Thorpe Lord Justice Latham Lord Justice Wall

Citations:

[2004] EWCA (Civ) 872, Times 09-Jul-2004, [2004] 2 FCR 657, [2005] Fam 171

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 25

Jurisdiction:

England and Wales

Citing:

Cited – de Lasala v de Lasala PC 4-Apr-1979
No Revisiting of Capital Claim after Compromise
(Hong Kong) Where capital claims are compromised in a once-for-all court order they cannot be revisited or reissued in the absence of a substantial mistake. Capital orders are ‘once-for-all orders’. The legal effect of the order derives not from the . .
Cited – Cornick v Cornick (No 2) CA 2-Jan-1995
The court considered the boundary of its power in ordering periodical payments: ‘I do not believe that Hale J erred in her approach in principle to this case, and I reject the submission which Mr Mostyn has made that there was a delimiting factor . .
Cited – Pearce v Pearce CA 28-Jul-2003
The financial claims on divorce had been settled by a compromise recorded in a court order. The order included periodical payments to the former wife. After she suffered financial losses, she sought an increase, and the former husband sought an . .
Cited – White v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .
Cited – Campbell v Campbell 1988
Thorpe J said: ‘It has never been the custom in ancillary relief litigation to look with scrupulous care at the budget items of the prospective payer. Of course, it is incumbent on the judge to cross check to ensure that the adjudication that meets . .
Cited – G v G (Maintenance Pending Suit: Costs) FD 2003
The court considered the argument that a wife’s maintenance pending suit should be limited to her reasonable needs: ‘I do not accept that argument for the following reasons. The purpose of the 1970 Act was to change statutory provisions that were . .
Cited – Minton v Minton HL 1979
Establishing Clean Break on Divorce
The House set out the principles for establishing a ‘clean break’ financial settlement on a divorce. Once a capital claim in a divorce has been given effect in a court order, the court does not have jurisdiction to vary it. Lord Scarman said: ‘Once . .
Cited – Cornick v Cornick (No 3) FD 2001
The court considered its powers when being asked to vary a lump sum provision at the same time as a variation of maintenance.
Held: ‘section 31(7B) clearly introduces a wide discretionary power to be exercised by applying the words of the . .
Cited – A v A (Maintenance Pending Suit: Provision for Legal Fees) FD 15-Nov-2000
An application for maintenance pending suit could properly be made, to include payment on account of the legal costs of pursuing the action. Such legal expense were of a recurring, and income type nature. Maintenance was not confined to the day to . .
Cited – N v N (Financial Provision: Sale of Company) FD 2001
The nature of the family assets may be taken into account when considering how they are to be divided in ancillary relief proceedings on divorce, where these are businesses which will be crippled or lose much of their value, if disposed of . .
Cited – G v G (Financial Provision Equal Division) FD 2-Jul-2002
The family assets were in the region of andpound;8.5M. The wife sought a half share. The husband proposed that she should have 40%. The husband had built the family fortune through exceptional hard work and astute business acumen in the field of . .
Cited – Wachtel v Wachtel CA 8-Feb-1973
The court described the 1969 and 1970 Acts as ‘a reforming statute designed to facilitate the granting of ancillary relief in cases where marriages have been dissolved . . We regard the provisions of sections 2,3, 4 and 5 of the Act of 1970 as . .
Cited – Doherty v Doherty CA 1976
The court avoided technicality when considering the distinction between lump sum and property adjustment orders: ‘Whether it is right, or not, to accept counsel for the husband’s submission that a clear distinction should be drawn between notices of . .
Cited – Trippas v Trippas CA 1973
The court emphasised the flexibility of the statutes providing for ancillary relief. . .
Cited – Martin v Martin CA 10-Mar-1977
The court urged caution in a judge using his own experience of the property market by way of judicial notice: ‘[W]herever it is to be argued that the wife could find alternative accommodation for herself out of her share of the equity, whatever that . .
Appeal from – J v J FD 23-Jan-2004
Ancillary relief. . .

Cited by:

Cited – Sorrell v Sorrell FD 29-Jul-2005
The parties contested ancillary relief on their divorce. The marriage had been very long, and the assets were very substantial. The husband contended that these assets represented an exceptional contribution on his part.
Held: In this case an . .
Appeal from – Miller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 11 June 2022; Ref: scu.198584

Pelling v Bruce-Williams, Secretary of State for Constitutional Affairs intervening: CA 5 Jul 2004

The applicant sought an order that his application for a joint residence order should be held in public.
Held: Though there was some attractiveness in the applicant’s arguments, the issue had been fully canvassed by the ECHR. The time had come for the court to consider in each case whether a proper balance of competing rights requires the anonymisation of any report of the proceedings and judgment but only following a hearing which was conducted in public and therefore open to all who cared to attend. Otherwise the application failed.

Judges:

Lord Justice Sedley Lord Justice Thorpe Lady Justice Arden

Citations:

(2004) 2 FLR 823, [2004] EWCA Civ 845, [2004] 3 All ER 875

Links:

Bailii

Statutes:

Family Proceedings Rules 1991 4.16, Children Act 1989 97(2)

Jurisdiction:

England and Wales

Citing:

Cited – P-B (a Minor) (child cases: hearings in open court) CA 20-Jun-1996
The applicant sought to have his application for a residence order heard in open court: ‘Article 6 (1) provides for the public hearing and the public pronouncement of judgment of cases, but with the proviso of exclusion of the press and the public . .
Cited – B v The United Kingdom; P v The United Kingdom ECHR 24-Apr-2001
The procedures in English law which provided for privacy for proceedings involving children did not in general infringe the human right to family life, nor the right to a public hearing. Where relatives more distant than immediate parties were . .
Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Appeal from – P v BW (Children Cases: Hearings in Public) FD 2003
The applicant sought a joint residence order, and for a declaration that the rules preventing such hearings being in public breached the requirement for a public hearing.
Held: Both FPR 1991 rule 4.16(7) and section 97 are compatible with the . .
Cited – Allan v Clibbery (1) CA 30-Jan-2002
Save in cases involving children and ancillary and other situations requiring it, cases in the family division were not inherently private. The appellant failed to obtain an order that details of an action under the section should not be disclosed . .
Cited – In Re G (Minors) (Celebrities: Publicity) CA 4-Nov-1998
Where extra publicity might attach to proceedings because of the celebrity of the parents, it was wrong to attach extra restrictions on reporting without proper cause. There remains a need to balance the need for the freedom of speech and the . .
Cited – Re A CA 4-Feb-2003
The court considered whether publicity should be allowed in a children’s application: ‘On the one hand, there is the need to protect the welfare of children. This can arise in a variety of ways. Children can be directly affected by the publication . .
Cited – X v Dempster FD 9-Nov-1998
The columnist Nigel Dempster had written that the mother in forthcoming proceedings relating to a child was a bad mother.
Held: The article was a contempt of court. Such an allegation required proof to the criminal standard. At common law the . .
Cited – Kent County Council v The Mother, The Father, B (By Her Children’s Guardian); Re B (A Child) (Disclosure) FD 19-Mar-2004
The council had taken the applicant’s children into care alleging that the mother had harmed them. In the light of the subsequent cases casting doubt on such findings, the mother sought the return of her children. She applied now that the hearings . .
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 R (Minor) (Court of Appeal: Order Against Identification) CA 1-Dec-1998
The applicant sought to set aside the standard form of order incorporated into the dismissal on 17th November 1997 of his appeal against the making of a section 91(14) order, preventing the identification of a child involved.
Held: It is now . .
Cited – Re Z (A Minor) (Freedom of publication) 1996
. .
Cited – Attorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .

Cited by:

Cited – Harb v King Fahd Bin Abdul Aziz CA 26-May-2005
The wife sought an order for reasonable maintenance from His Majesty King Fahd Bin Abdul Aziz. He replied that he was immune from suit.
Held: The King as king was immune. The judge at first instance had been wrong to give the case fictitious . .
Cited – Clayton v Clayton CA 27-Jun-2006
The family had been through protracted family law proceedings and had been subject to orders restricting identification. The father now wanted to discuss his experiences and to campaign. He could not do so without his child being identified.
Cited – Norfolk County Council v Webster and others FD 1-Nov-2006
The claimants wished to claim that they were victims of a miscarriage of justice in the way the Council had dealt with care proceedings. They sought that the proceedings should be reported without the children being identified.
Held: A judge . .
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 . .
Cited – H v A (No2) FD 17-Sep-2015
The court had previously published and then withdrawn its judgment after third parties had been able to identify those involved by pulling together media and internet reports with the judgment.
Held: The judgment case should be published in . .
See Also – Pelling v Bruce-Williams CA 25-Jul-2006
Application to discharge injunction – court considering it spent. . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 11 June 2022; Ref: scu.198576

Martin v Martin: CA 10 Mar 1977

The court urged caution in a judge using his own experience of the property market by way of judicial notice: ‘[W]herever it is to be argued that the wife could find alternative accommodation for herself out of her share of the equity, whatever that may be . . there should be evidence put before the court to that effect. The unsupported assertions and speculations which are made in the course of argument in these cases are not satisfactory. It means the court has to use its own imprecise knowledge of the property market and may well make mistakes. So if it is going to be said that the wife could get alternative accommodation, let there be some evidence to that effect. Otherwise it will have to be assumed that it is not possible.’ The court upheld the right of a wife to remain indefinitely in a very modest matrimonial home against the claim of her former husband that it should be sold and the proceeds equally divided: ‘I appreciate the point he (Mr Aglionby, counsel for the husband) has made, namely that it is difficult for practitioners to advise clients in these cases because the rules are not very firm. That is inevitable when the courts are working out the exercise of the wide powers given by a statute like the Matrimonial Causes Act 1973. It is the essence of such a discretionary situation that the court should preserve, so far as it can, the utmost elasticity to deal with each case on its own facts. Therefore, it is a matter of trial and error and imagination on the part of those advising clients. It equally means that decisions of this court can never be better than guidelines. They are not precedents in the strict sense of the word. There is bound to be an element of uncertainty in the use of the wide discretionary powers given to the court under the 1973 Act, and no doubt there always will be, because as social circumstances change so the court will have to adapt the ways in which it exercises discretion. If property suddenly became available all over the country many of the rationes decidendi of the past would be quite inappropriate’

Judges:

Ormrod LJ, Stamp LJ, Sir John Pennycuick

Citations:

[1978] Fam 12, [1977] EWCA Civ 7

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 25

Jurisdiction:

England and Wales

Citing:

Cited – Mesher v Mesher and Hall CA 1973
(Heard in 1973, but reported in 1980) The court gave a form of ancillary relief order allowing the party with custody of the children (even though both had remarried) to remain in the matrimonial home with them, the house only being sold on the . .

Cited by:

Cited – Piglowska v Piglowski HL 24-Jun-1999
No Presumption of House for both Parties
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
Cited – McFarlane v McFarlane; Parlour v Parlour CA 7-Jul-2004
Appeals were made against orders for periodical payments made against high earning husbands. The argument was that if the case of White had decided that capital should be distributed equally, the same should apply also to income.
Held: The . .
Cited – Miller v Miller; M v M (Short Marriage: Clean Break) CA 29-Jul-2005
The parties contested ancillary relief where there had been only a short marriage, but where here were considerable family assets available for division. The wife sought to rely upn the husband’s behaviour to counter any argument as to the shortness . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 11 June 2022; Ref: scu.197923

Dipper v Dipper: CA 1980

The court has no power to dismiss an applicant’s claim for periodical payments against her will.

Citations:

[1981] Fam 31, [1980] 1 FLR 286

Statutes:

Matrimonial Causes Act 1973 25

Jurisdiction:

England and Wales

Cited by:

Mentioned – Miller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
Cited – North v North CA 25-Jul-2007
The husband appealed a consent order for payment of pounds 202,000 to commute a varied nominal maintenance order. The original order had been made many years before. In the meantime, the former husband had grown wealthy, and she had suffered . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 11 June 2022; Ref: scu.242166

Q v Q (Family proceedings: Costs order): FD 21 Jun 2002

The provisions of the Civil Procedure Rules as to costs in Family division proceedings did not replace entirely the old rules after April 26, 1999, and the Leary case was not superceded. The requirement for summary assessment of costs for hearings less than a day did not abrogate the power to make such an assessment in longer cases, and indeed under the rules, the possibility should be considered in every case. In family cases, in particular, detailed assessments tended only to prolong bitterness.

Judges:

Wilson J

Citations:

Times 16-Jul-2002, Gazette 21-Aug-2002

Statutes:

Civil Procedure Rules

Jurisdiction:

England and Wales

Citing:

Superceded – Leary v Leary CA 1987
The husband had obstructed ancillary relief proceedings, leading to prolonged hearings. The judge ordered a gross sum in costs, without allowing the husband to be heard first.
Held: Under RSC Ord 62 r9(4) a judge could award a gross sum in . .
Lists of cited by and citing cases may be incomplete.

Costs, Family, Civil Procedure Rules

Updated: 11 June 2022; Ref: scu.174326

Gojkovic v Gojkovic (No 2): CA 1 Apr 1991

In ancillary relief proceedings, the husband had not made frank disclosure of his assets. The final Calderbank offer of andpound;600,000 was made only the day before the substantive hearing. The offer was rejected. The judge awarded the wife a lump sum of andpound;1 million. The judge made no order as to costs after the date when the wife’s solicitors had rejected an earlier, lower, offer by the husband. From that date both sides had acted reasonably. The wife appealed. No counter-offer had been made by the wife.
Held: The starting point, is that costs prima facie follow the event but in family cases this rule may be displaced more easily, and it is unusual to order costs in children cases. For financial relief the applicant has to make the application in order to obtain an order. Orders by consent; usually include the applicant’s costs. If contested and the applicant succeeds, where money available and no special factors, the applicant spouse is likely to obtain an order for costs. The behaviour of one party, such as in material non-disclosure of documents, may be a material factor. In some few cases the assets are substantial and an order for costs can (if appropriate) be made. The court rules reflect the need for Calderbank offers, subject to conditions, to have teeth. The respondent must make a serious offer worthy of consideration. If he does so, the applicant should accept or reject the offer and make clear any counter-offer. Both should negotiate. There is a very wide discretion in the court in awarding costs. Many reasons may affect costs including material non-disclosure, and delay or excessive zeal. The need to use all the available money to house the spouse and children of the family may be constraints. It would be inappropriate to constrain that wide of discretion. But the starting point in a case where there has been an offer is that, prima facie, if the applicant receives no more or less than the offer made, she/he is at risk not only of not being awarded costs, but also of paying the costs of the other party after communication of the offer and a reasonable time to consider it. ‘I cannot, for my part, see why there is any difference in principle between the position of a party who fails to obtain an order equal to the offer made and pays the costs, and a party who fails by the offer to meet the award made by the court. In the latter case prima facie costs should follow the event, as they would do in a payment into court, with the proviso that other factors in the Family Division may alter that prima facie position.’
Russell LJ: ‘In his opening submissions to this court, counsel for the husband invited us to lay down guidelines which would, he said, be of assistance to those charged with the responsibility of deciding what, after divorce, is the appropriate level of lump sum payments in cases where very substantial capital assets are available. I do not think that such an exercise is possible. The guidelines already exist. Section 23 of the Matrimonial Causes Act 1973 is the enabling provision for an order for the payment of a lump sum. Section 25, as amended by the Matrimonial and Family Proceedings Act 1984, in terms, requires the court to have regard to all the circumstances of the case and subsection (2), under no less than eight sub-paragraphs, sets out the matters to which the court in particular shall have regard.
In the individual case, some of those matters will assume greater importance than others and, indeed, the facts of this case well illustrate that proposition. In my judgment in this case we are concerned with a wholly exceptional set of circumstances . . . . ‘

Judges:

Butler-Sloss LJ, Russell LJ

Citations:

[1991] 2 FLR 233, [1992] Fam 40, Times 01-May-1991, [1992] 1 All ER 267

Jurisdiction:

England and Wales

Citing:

Cited – Calderbank v Calderbank CA 5-Jun-1975
Letter Without Prejudice Save as to Costs
Husband and wife disputed provision under 1973 Act, and a summons under section 17 of the 1882 Act. The wife had offered to transfer a house to H occupied by his mother, worth about pounds 12,000, in return for him leaving the matrimonial home. He . .
Cited – Singer (formerly Sharegin) v Sharegin 1984
In family proceedings, the starting point for the award of costs is that they prima facie follow the event but that presumption may be displaced much more easily than, and in circumstances which would not apply, in other divisions of the High Court. . .
Cited – McDonnell v McDonnell CA 1977
In family proceedings, a costs letter had been written in the form suggested in Calderbank.
Held: The court accepted and endorsed the practice suggested by Cairns LJ. Ormrod LJ said: ‘The important factor which distinguishes this case is the . .

Cited by:

Cited – Butcher v Wolfe and Another CA 30-Oct-1998
The parties had been partners in a family farm. On dissolution there was a dispute as to apportionment of costs. An offer had been ‘without prejudice save as to costs’.
Held: Costs may be denied to a plaintiff who had received a Calderbank . .
Cited – Norris v Norris, Haskins v Haskins CA 28-Jul-2003
The court considered how orders for costs were to be made in ‘big money’ cases.
Held: There were two sets of rules. Cases should be considered by first applying the Civil Procedure Rules. This would allow the court to consider the full range . .
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Cited – In re T (Children) SC 25-Jul-2012
The local authority had commenced care proceedings, alleging abuse. After lengthy proceedings, of seven men and two grandparents, all but one were exonerated. The grandparents had not been entitled to legal aid, and had had to mortgage their house . .
Cited – Re S (A Child) SC 25-Mar-2015
The Court was asked as to the proper approach to ordering the unsuccessful party to pay the costs of a successful appeal in cases about the care and upbringing of children. It arises in the specific context of a parent’s successful appeal to the . .
Lists of cited by and citing cases may be incomplete.

Family, Costs

Updated: 11 June 2022; Ref: scu.182186

Winter v Winter: CA 10 Nov 2000

Brooke LJ said: ‘before the Civil Procedure Rules came into effect . . if a claimant substantially succeeded he was likely to be awarded an order for costs even though he failed on certain issues. The new Rules provide a break from that tradition and enable a court to do greater justice if a party has caused court costs to be expended on an issue on which he ultimately fails.’

Judges:

Brooke LJ

Citations:

November 10, 2000, unreported

Jurisdiction:

England and Wales

Cited by:

Cited – Budgen v Andrew Gardner Partnership CA 31-Jul-2002
The defendant firm of solicitors appealed an order for costs against it based upon a percentage calculation. They sought an issues based costs order.
Held: Where there was insufficient information upon which to calculate an issues based costs . .
Cited – Douglas and others v Hello! Ltd and others ChD 23-Jan-2004
. .
Cited – Douglas and others v Hello! Ltd and others ChD 23-Jan-2004
. .
Lists of cited by and citing cases may be incomplete.

Family, Costs

Updated: 10 June 2022; Ref: scu.181794

Bibi, Regina (on the Application Of) v London Borough of Camden: Admn 11 Oct 2004

The court had made a joint residence order, but the housing department offered the wife only a one bedroomed department which would not allow her children to stay with her.
Held: The local authority decision had to be set aside. In future when making such orders the exact for of residence required might be set out and the local authority consulted.

Judges:

Davis J

Citations:

[2004] EWHC 2527 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Housing, Family

Updated: 10 June 2022; Ref: scu.219258

N A v M O T: FD 30 Jan 2004

The parties had been married for only a few weeks. The wife sought ancillary relief.
Held: The marriage had been preceded by a pre-marital or pre-nutial agreement, under which if the husband sought a divorce (a talaq) she would recover her marriage portion, but if she did (a kuhla), she would have to negotiate a settlement. The court should, under the section, allow for the duration of the marriage and respect the cultural background of the parties. The wife was awarded pounds 35,000 to be increased to pounds 65,000 if the husband did not apply for a talaq within a certain time.

Judges:

Baron J

Citations:

Times 02-Mar-2004, [2004] EWHC 471 (Fam)

Links:

Bailii, Bailii

Statutes:

Matrimonial Causes Act 1973 25

Jurisdiction:

England and Wales

Family

Updated: 10 June 2022; Ref: scu.194097

Dooris v Dooris: CANI 18 Jan 2002

Appeal against dismissal of undefended divorce petition, based upon two years’ separation and consent. The parties still occupied the same property, but said that they lived separate lives.
Held: The parties to a marriage shall be treated as living apart unless they are living with each other in the same household. References to parties to a marriage living with each other shall be construed as references to their living with each other in the same household and as husband and wife.
Higgins J said: ‘The degree of separation or separate living required to establish as a fact that the parties are living apart in different households cannot be overstressed. Various elements will go to prove it. The potential circumstances are so great that it is not possible for this court to state categorically what circumstances will ultimately prove ‘living apart in separate households’ and what will not. Some factors will be common to most situations, for example, sleeping in separate bedrooms and the absence of marital relations, though the latter could occur yet the parties are in fact living apart. Cases in which the parties have divided the premises into ‘his’ and ‘hers’ into which the other does not stray, may, depending on the other circumstances, more easily lead to a conclusion that the parties are in fact living apart in separate households. In petitions grounded on separation for periods of two or five years and in which the parties to the marriage have during the whole or any part of the relevant period lived under the same roof or in the same residence and it is proposed to rely on evidence that the parties were nonetheless living apart, the facts relied upon to establish living apart in separate households for the whole or part of the relevant period should be pleaded separately in the Petition in sequential numbered paragraphs. Thus the court and the parties will be aware of the allegation and what is alleged in support of it.’

Judges:

Higgins J

Citations:

HIGF3570, [2002] NICA 4

Links:

Bailii

Statutes:

Matrimonial Causes (Northern Ireland) Order 1978

Jurisdiction:

Northern Ireland

Citing:

Cited – Santos v Santos CA 16-Feb-1972
The court considered whether one party who lived in Spain and the other who lived mainly, but not exclusively, in England, were, despite several periods of close cohabitation, living apart.
Held: Mere physical separation without more did not . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 08 June 2022; Ref: scu.189644

Parra v Parra: CA 20 Dec 2002

The court considered the division of family assets on an ancillary relief application where a family company assets were involved but the assets had been divided equally: ‘The parties have, perhaps unusually, ordered their affairs during the marriage to achieve equality and to eliminate any potential for gender discrimination. They had in effect elected for a marital regime of community of property. In such circumstances what is the need for the Courts discretionary adjustive powers? The introduction of the ‘no order’ principle into section 25 of the Matrimonial Causes Act 1973 might contribute to the elimination of unnecessary litigation. As a matter of principle I am of the opinion that Judges should give considerable weight to the property arrangements made during marriage and, in cases where the parties have opted for equality, reserve the exercise of the adjustive powers to those cases where fairness obviously demands some reordering.’ (Thorpe LJ) and ‘ . . the outcome of ancillary relief cases depends upon the exercise of a singularly broad judgment that obviates the need for the investigation of minute detail and equally the need to make findings on minor issues in dispute. The judicial task is very different from the task of the judge in the civil justice system whose obligation is to make findings on all issues in dispute relevant to outcome. The quasi-inquisitorial role of the judge in ancillary relief litigation obliges him to investigate issues he considers relevant to outcome even if not advanced by either party. Equally, he is not bound to adopt a conclusion upon which the parties have agreed. . . . But this independence must be matched by an obligation to eschew over-elaboration and to endeavour to paint the canvas of his judgment with a broad brush rather than with a fine sable. Judgments in this field need to be simple . . in structure and simply explained.’

Judges:

Thorpe LJ

Citations:

[2002] EWCA Civ 1886, (2003) 1 FLR 942

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – G v G and Another FdNI 25-Oct-2003
There had been a long but argumentative marriage, and the parties disputed distribution of the assets on an ancillary relief application.
Held: The husband could not claim to discount shareholdings as a minority shareholding where he also . .
Cited – Charman v Charman CA 20-Dec-2005
The court considered orders to third parties abroad to produce docments for use in ancillary relief proceedings. The husband had built up considerable assets within an offshore discretionary trust. The court was asked whether these were family . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 08 June 2022; Ref: scu.189017

White v White: CA 19 May 2003

The parties to the marriage owned a property which they had extended. The relationship deteriorated, and the mother sought an order under the 1996 Act. The mother left the home, and the father cared for the children. He sought orders under the 1989 Act for the transfer of the property. Those proceedings were made subject to the current proceedings.
Held: Sensible case management demands that competing applications be conjoined. The current order was wrong in principle. When the court looked at the intentions of the parties under a trust, it should look to the time before the trust, not from time to time later. The powers under each Act are not co-extensive. Unless for some special reason the application should be under both Acts and the exercise of the powers under each Act should be considered by the same court and at the same time.

Judges:

Lord Justice Thorpe, Lady Justice Arden, Mr Justice Bodey

Citations:

[2003] EWCA Civ 924

Links:

Bailii

Statutes:

Trusts of Land and Appointment of Trustees Act 1996 14, Children Act 1989 Sch1

Jurisdiction:

England and Wales

Cited by:

Cited – Pearce v Pearce CA 28-Jul-2003
The financial claims on divorce had been settled by a compromise recorded in a court order. The order included periodical payments to the former wife. After she suffered financial losses, she sought an increase, and the former husband sought an . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts, Children, Land

Updated: 07 June 2022; Ref: scu.184446

Roy Green v Vivia Green: PC 20 May 2003

PC (Jamaica) The claimant sought a declaration that he was entitled to one half of the marriage assets on divorce. They had each acquired various properties and assets both in Jamaica and the USA. The judge at first instance had found for an equal share, and he now appealed a finding on appeal that he was entitled only to a one third share.
Held: An appellate court must interfere in a judge’s finding only if he was clearly in error. That could not be shown here, and te judge’s order was restored.

Judges:

Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead, Lord Millett, Lord Rodger of Earlsferry

Citations:

[2003] UKPC 39

Links:

Bailii, PC

Jurisdiction:

Commonwealth

Citing:

Cited – Gissing v Gissing HL 7-Jul-1970
Evidence Needed to Share Benefical Inerests
The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
Held: The principles apply to any case where a beneficial interest in land is claimed by a . .
Cited – Grant v Edwards and Edwards CA 24-Mar-1986
A couple were not married but lived together in Vincent Farmhouse in which the plaintiff claimed a beneficial interest on separation. The female partner was told by the male partner that the only reason for not acquiring the property in joint names . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 07 June 2022; Ref: scu.182236

Darke v Strout: CA 28 Jan 2003

Abstention in exercising of a statutory right to apply for child maintenance may afford sufficient consideration to support a compromise of a contractual claim.

Citations:

[2003] EWCA Civ 176

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Haines v Hill and Another CA 5-Dec-2007
On the divorce, the husband was ordered to transfer his share in the house to the wife. On his bankruptcy shortly after, the order was confirmed. After the wife sold the property at a profit, the trustee in bankruptcy applied to set the transfer . .
Lists of cited by and citing cases may be incomplete.

Family, Contract, Child Support

Updated: 07 June 2022; Ref: scu.181105

AHE Leeds Teaching Hospitals NHS Trust v A and Others (By Their Litigation Friend, the Official Solicitor), The Human Fertilisation and Embryology Authority B, B: QBD 26 Feb 2003

An IVF treatment centre used sperm from one couple to fertilise eggs from another. This was discovered, and the unwilling donors sought a paternity declaration.
Held: Section 28 did not confer paternity. The mistake vitiated whatever consents had been given, and the concept under the Act of ‘treatment together’. Any interference with the right to family life was proportionate and necessary.

Judges:

The President

Citations:

[2003] EWHC 259 (QB), Gazette 01-May-2003, [2003] 1 FLR 1091

Links:

Bailii

Statutes:

Family Law Act 1986 55A, Human Fertilisation and Embryology Act 1990 28 29

Jurisdiction:

England and Wales

Citing:

Cited – U v W (Attorney-General Intervening) FD 4-Mar-1997
The restriction on the freedom to provide human fertility treatment to licensees of the Authority was not a breach of the EU treaty. There is a particular need for certainty in provisions affecting the status of a child. There is a mental element . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Marckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
Cited – Kroon And Others v The Netherlands ECHR 27-Oct-1994
Neither marriage nor living together were necessarily a requirement for establishing family ties, exceptionally other factors may . . serve to demonstrate that a relationship has sufficient constancy to create de facto ‘family ties’. The . .
Cited – Re B (Parentage) FD 1996
A mother applied for financial provision for her twin children under 1989 Act Sch 1. The father asked whether he was their parent within the Schedule. They had been born by artificial insemination. He accepted that he was the donor of the sperm and . .
Cited – Regina v Human Fertilisation and Embryology Authority ex parte DB CA 6-Feb-1997
At the applicant’s request samples of sperm were taken from her husband hours prior to his death, when he was in a coma.
Held: Sperm cannot lawfully be taken from a comatose man in order later to allow his surviving wife to be artificially . .
Cited – McMichael v United Kingdom ECHR 2-Mar-1995
In the course of care proceedings, medical and social services’ reports were disclosed to the courts, but not to the parents involved.
Held: The courts’ failure to show reports to the parents in care proceedings was a breach of the Convention. . .
Cited – Re H; Re G (Adoption: Consultation of Unmarried Fathers) CA 2001
Not every natural father has a right to respect for his family life with regard to every child of whom he may be the father (see also McMichael v United Kingdom (1995) 20 EHRR 205). The application of Art 8(1) will depend upon the facts of each . .
Cited – Re S (Freeing for Adoption) CA 2002
If parliament always foresaw what possibilities might arise, courts would never have anything to interpret. . .
Cited – Mrs U v Centre for Reproductive Medicine CA 2002
The 1990 Act lays great emphasis upon consent. Scientific techniques developed since the first IVF baby open up the possibility of creating human life in quite new ways bringing huge practical and ethical difficulties. These have to be balanced . .
Cited – Mikulic v Croatia ECHR 7-Feb-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Violation of Art. 8; Violation of Art. 13 with regard to the complaint under Article 6-1; Not necessary to examine Art. 13 with regard to the . .
Cited – Re R (A Child) CA 19-Feb-2003
. .
Cited – Regina (Rose and Another) v Secretary of State for Health and the Human Fertilisation and Embryology Authority Admn 26-Jul-2002
Applications were made, challenging the refusal of the Secretary of State for Health, and the Human Fertilisation and Embryology Authority, to institute a system where a child born by artificial insemination could make enquiries as to his or her . .
Cited – Johansen v Norway ECHR 7-Aug-1996
The court had to consider a permanent placement of a child with a view to adoption in oposition to the natural parents’ wishes.
Held: Particular weight should be attached to the best interests of the child, which may override those of the . .
See also – Leeds Teaching Hospitals NHS Trust v Mr and Mrs A, YA, ZA, Mr and Mrs B T Authority QBD 4-Nov-2002
At a fertility clinic, eggs were fertilised with the sperm from the wrong father. It was noticed only because after the birth of the twins, the colour of their skin was different from the mother and putative father.
Held: Difficult issues of . .

Cited by:

See also – Leeds Teaching Hospitals NHS Trust v Mr and Mrs A, YA, ZA, Mr and Mrs B T Authority QBD 4-Nov-2002
At a fertility clinic, eggs were fertilised with the sperm from the wrong father. It was noticed only because after the birth of the twins, the colour of their skin was different from the mother and putative father.
Held: Difficult issues of . .
Cited – Quintavalle v Human Fertilisation and Embryology Authority HL 28-Apr-2005
The parents of a boy suffering a serious genetic disorder sought IVF treament in which any embryo would be tested for its pre-implantation genetic status. Only an embryo capable of producing the stem cells necessary to cure the boy would be . .
Lists of cited by and citing cases may be incomplete.

Family, Health, Human Rights

Updated: 07 June 2022; Ref: scu.179570

Wermuth v Wermuth: CA 4 Feb 2003

The husband had commenced proceedings for divorce in Germany. The husband was German, and the wife became German upon the marriage, but they had lived in London. The wife was second to issue, beginning proceedings in London. The district judge recorded the parties’ agreement that the German court should be seized, save of article 12 matters. The wife obtained an ancillary relief maintenance order, which the husband now appealed.
Held: The maintenance order was an unwarranted invasion of the jurisdiction of the German court. It was not protective, and nor was the case urgent. Brussels II has no direct application to ancillary relief claims. It was wrong for an English court to seek to usurp the Convention. Substantial sums had been spent on legal costs unnecessarily in London.

Judges:

Thorpe, Latham, LJJ, Lawrence Collins J

Citations:

Times 07-Feb-2003, [2003] EWCA Civ 50, [2003] 1 WLR 942

Links:

Bailii

Statutes:

Council Regulation No 1347/2000/EC (OJ 2000 L160/19) 12

Jurisdiction:

England and Wales

Family, Jurisdiction, European

Updated: 07 June 2022; Ref: scu.179018

Venables and Another v News Group Papers Ltd and Others: FD 4 Mar 2019

The claimant had been convicted as a child of a murder. An order had been made protecting his identity. He had subsequently been convicted of further offences, but a review of the order in 2010 had rejected a substantial release of the order. Further application was now made.
Held: Rejected.

Judges:

Sir Andrew McFarlane President of the Family Division

Citations:

[2019] EWHC 494 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family, Media

Updated: 06 June 2022; Ref: scu.634812

P, C And S v The United Kingdom: ECHR 16 Jul 2002

The applicants challenged the way in which their newborn children had been removed by the state after birth. S had not had the opportunity of legal representation, after her lawyers had withdrawn. The removal of S’s child was challenged as disproportionate and a breach of the right to family life.
Held: Given the importance of the decision, the denial of legal representation infringed the family’s legal rights. Representation was necessary, and the refusal to allow an adjournment denied a fair trial. The procedure under which a decision was made before the birth of a child to remove it at birth, leading to a probable adoption was draconian and not justified given the alternative possibilities, and was an interference with the right to family life.

Judges:

Costa, Baka, Bratza, Jorundsson, Loucaides, Birsan and Ugrekhelidze, Early

Citations:

Times 16-Aug-2002, 56547/00, [2002] ECHR 599, (2002) 35 EHRR 1075, [2002] ECHR 604

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 6.1 8

Jurisdiction:

Human Rights

Cited by:

Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Children, Family

Updated: 06 June 2022; Ref: scu.174384

Ranson v Ranson: CA 13 Dec 2001

There had been protracted ancillary relief litigation between the parties resulting in a final order. Part of the order related to property, but the husband asserted that he was incapable of conveying the property since, because of title difficulties, its value was reduced, and the order impossible to fulfil. Two distinguished land law experts disagreed as to the effect of the defect. The judge had eventually valued it on the capital value of the rental income.
Held: The judge had been wrong to take the valuation to the point of capitalising the rental value. It should have been dealt with by way of periodical payments. A receiver had been properly appointed to handle the property.

Judges:

Lord Justice Thorpe, Lord Justice Robert Walker, And Sir Martin Nourse

Citations:

[2001] EWCA Civ 1929

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Oceanic Village Ltd v United Attractions Ltd, Shirayama ChD 9-Dec-1999
The tenant sought an injunction against its neighbour and landlord to prevent it letting an adjoining property without a restriction similar to the one in its own lease. The claimants sought reassurance from the defendant tenants of the adjoining . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 05 June 2022; Ref: scu.167854

Rose v Rose: CA 20 Feb 2002

The parties married in 1984, and divorced in 2000. They had two children. The husband had a substantial fortune. In ancillary relief proceedings, at the financial dispute resolution hearing, the judge indicated what order was on his mind, the parties negotiated, and an agreement was agreed with the judge. Before a formal order was written up, the husband sought to resile.
Held: In the context of the new ancillary relief procedures, judges would approach these things differently, and should not be hidebound. The stage reached in this particular case was that of an unperfected court order, and the husband would not be allowed to resile from it.

Judges:

Lord Phillips of Worth Matravers, Master of the Rolls, Lord Justice Thorpe and Lord Justice Buxton

Citations:

Times 12-Mar-2002, Gazette 15-Mar-2002, [2002] EWCA Civ 208, [2002] 1 FLR 978

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – North v North CA 25-Jul-2007
The husband appealed a consent order for payment of pounds 202,000 to commute a varied nominal maintenance order. The original order had been made many years before. In the meantime, the former husband had grown wealthy, and she had suffered . .
See Also – Rose v Rose FD 20-Mar-2003
Appeal against ancillary relief order by consent on divorce. . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 05 June 2022; Ref: scu.167749

Allan v Clibbery (1): CA 30 Jan 2002

Save in cases involving children and ancillary and other situations requiring it, cases in the family division were not inherently private. The appellant failed to obtain an order that details of an action under the section should not be disclosed by the media.
Held: The description of the law at first instance was too wide in stating that family proceedings could not, with the exception of children cases, be heard in private. It does not follow alone from the fact that a hearing was in private that there was a ban on reporting it. Family proceedings are not different from other civil proceedings, save in recognised classes of cases, and situations which manifestly required permanent confidentiality. There is no one approach to the balance between the right to family life in article 8 and freedom of expression in article 10 of the Convention.
Whether family proceedings in chambers are protected from publication depends upon whether they come within the 1960 Act or whether the administration of justice will otherwise be impeded or prejudiced by publication.
There is an implied obligation upon a party to whom documents are disclosed in proceedings for ancillary relief not to disseminate them, or copies of them, to third parties without the leave of the court

Judges:

Butler-Sloss P FD LJ, Lord Justice Thorpe, and, Lord Justice Keene

Citations:

Times 05-Feb-2002, Gazette 14-Mar-2002, [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565, [2002] UKHRR 697

Links:

Bailii

Statutes:

Family Law Act 1996 36, Family Proceedings Rules 1991 (1991 No 1247 (L20)) 3.9(1, Administration of Justice Act 1960 12

Jurisdiction:

England and Wales

Citing:

Cited – Hodgson and others v Imperial Tobacco Limited Gallagher Limited etc CA 12-Feb-1998
A large number of plaintiffs brought actions against the defendants, three tobacco companies, claiming damages for personal injuries by reason of cancer which they claimed was caused by smoking cigarettes manufactured by the defendants. A hearing . .
Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Appeal from – Clibbery v Allan and Another FD 2-Jul-2001
There is nothing inherently different in Family Division proceedings to justify an implied ban on all disclosures of matters proceeding in chambers. Here no children or other sensitive matters were involved. The simple filing of an affidavit . .

Cited by:

Cited – P v P (Ancillary Relief: Proceeds of Crime) FD 8-Oct-2003
The parties sought guidance from the court on the circumstances which arose in ancillary relief proceedings where a legal representative came to believe that one party might be holding the proceeds of crime. In the course of ancillary relief . .
Cited – Kent County Council v The Mother, The Father, B (By Her Children’s Guardian); Re B (A Child) (Disclosure) FD 19-Mar-2004
The council had taken the applicant’s children into care alleging that the mother had harmed them. In the light of the subsequent cases casting doubt on such findings, the mother sought the return of her children. She applied now that the hearings . .
Cited – P v BW (Children Cases: Hearings in Public) FD 2003
The applicant sought a joint residence order, and for a declaration that the rules preventing such hearings being in public breached the requirement for a public hearing.
Held: Both FPR 1991 rule 4.16(7) and section 97 are compatible with the . .
Cited – Pelling v Bruce-Williams, Secretary of State for Constitutional Affairs intervening CA 5-Jul-2004
The applicant sought an order that his application for a joint residence order should be held in public.
Held: Though there was some attractiveness in the applicant’s arguments, the issue had been fully canvassed by the ECHR. The time had come . .
Cited – Harb v King Fahd Bin Abdul Aziz CA 26-May-2005
The wife sought an order for reasonable maintenance from His Majesty King Fahd Bin Abdul Aziz. He replied that he was immune from suit.
Held: The King as king was immune. The judge at first instance had been wrong to give the case fictitious . .
Cited – Clayton v Clayton CA 27-Jun-2006
The family had been through protracted family law proceedings and had been subject to orders restricting identification. The father now wanted to discuss his experiences and to campaign. He could not do so without his child being identified.
Cited – Norfolk County Council v Webster and others FD 1-Nov-2006
The claimants wished to claim that they were victims of a miscarriage of justice in the way the Council had dealt with care proceedings. They sought that the proceedings should be reported without the children being identified.
Held: A judge . .
Cited – LM, Re (Reporting Restrictions; Coroner’s Inquest) FD 1-Aug-2007
A child had died. In earlier civil proceedings, the court had laid responsibility with the mother. Restrictions had been placed on the information which would effectively prevent the coroner conducting his inquest. The coroner sought a lifting of . .
Cited – Child X (Residence and Contact- Rights of Media Attendance) (Rev 2) FD 14-Jul-2009
The father applied to the court to have the media excluded from the hearing into the residence and contact claims relating to his daughter.
Held: It was for the party seeking such an order to justify it. In deciding whether or not to exclude . .
Cited – Gelber v Griffin FD 22-Nov-2006
Complaint was made that a party had disclosed confidential material received through disclosure to a third party.
Held: There was an implied duty of confidence arising in the disclosure process. . .
Cited – Davies v Welch Admn 4-Nov-2010
The applicant sought the committal of the respondent for contempt. The defendant, a solicitor had acted for the claimant’s wife in ancillary relief proceedings. He complained that documents sent to her under implied undertakings of confidentiality . .
Cited – H v A (No2) FD 17-Sep-2015
The court had previously published and then withdrawn its judgment after third parties had been able to identify those involved by pulling together media and internet reports with the judgment.
Held: The judgment case should be published in . .
Lists of cited by and citing cases may be incomplete.

Family, Media, Information, Human Rights

Updated: 05 June 2022; Ref: scu.167525

Regina (L and Others) v Manchester City Council, Regina (R and Another) v Same: QBD 28 Sep 2001

The council had a policy under which the financial assistance it gave to short term foster carers who were relatives of the children involved was rather less than would be given to non-family carers. The policy was challenged as unreasonable.
Held: The policy which imposed arbitrary financial limits was unreasonable, and would inevitably conflict with the duty to look to the child’s welfare. The policy operated to discriminate against family members and therefore infringed their human rights under the convention

Judges:

Mr Justice Munby

Citations:

Times 10-Dec-2001, [2002] Fam Law 13, [2001] EWHC 707 (Admin), [2002] 1 FLR 43, [2002] ACD 45, (2002) 5 CCL Rep 268

Links:

Bailii

Statutes:

Children Act 1989 22(3)(a), European Convention on Human Rights 8 14

Family, Children, Local Government, Human Rights, Local Government

Updated: 05 June 2022; Ref: scu.166977

Mordant v Hallas: ChD 2 Aug 1993

A debt due which consisted of a matrimonial lump sum order is not provable in a bankruptcy.

Citations:

Gazette 02-Aug-1993

Jurisdiction:

England and Wales

Citing:

Appealed to – In re Mordant CA 1996
The court discussed the interplay of family and insolvency proceedings: ‘Since the wife is unable to prove in the husband’s bankruptcy, the position . . is that the husband’s trustee must use the andpound;385,000 in paying the trustee’s expenses . .

Cited by:

Appeal From – In re Mordant CA 1996
The court discussed the interplay of family and insolvency proceedings: ‘Since the wife is unable to prove in the husband’s bankruptcy, the position . . is that the husband’s trustee must use the andpound;385,000 in paying the trustee’s expenses . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Family

Updated: 05 June 2022; Ref: scu.83826

Harris v Harris: CA 8 Nov 2001

On an application by a contemnor to be purged of his contempt, the judge could only answer ‘Yes’, ‘No’, or ‘Not Yet.’ It was not right to add further complexity to release the contemnor, but with some further part of his sentence suspended. The powers of the court in such applications need to be clear and simple.

Judges:

Lord Justice Thorpe, Lord Justice Waller and Lord Justice Mantell

Citations:

Times 19-Nov-2001, Gazette 10-Jan-2002, [2001] EWCA Civ 1645, [2002] Fam 253, [2002] 1 All ER 185, [2001] 3 FCR 640, [2002] Fam Law 93, [2002] 2 WLR 747, [2002] 1 FLR 248

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Overruled – Harris v Harris; Harris v Attorney General FD 21-May-2001
The applicant had been committed for ten months for contempt, being in breach of family court injunctions. He applied to be released after two months on the basis that the unserved balance of the sentence be suspended. The court held that it had the . .
Lists of cited by and citing cases may be incomplete.

Contempt of Court, Family

Updated: 04 June 2022; Ref: scu.166836

X, Y and Z v The United Kingdom: ECHR 22 Apr 1997

The court refused to find that the failure of United Kingdom law to recognise a female to male trans-sexual as the father of a donor insemination child, born to his partner and brought up as their child, was a breach of their rights to respect for their family life under article 8. The de facto ties linking X, Y and Z were sufficient to establish family life between them, but there was no infringement. ‘When deciding whether a relationship can be said to amount to ‘family life’, a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means.’

Citations:

Gazette 30-Apr-1997, Times 23-Apr-1997, 21830/93, [1997] 24 EHRR 143, [1997] ECHR 20

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights Art 8

Cited by:

Cited – Regina v Pearce CACD 11-Dec-2001
The defendant appealed against his conviction for murder. He said that the court had not allowed his alcoholism as a characteristic for the purposes of testing the defence of provocation, and that the evidence of his long standing partner should be . .
Cited – A v West Yorkshire Police HL 6-May-2004
The claimant was a male to female trans-sexual who had been refused employment as a police officer by the respondent, who had said that the staturory requirement for males to search males and for females to search females would be impossible to . .
Cited – Singh v Entry Clearance Officer New Delhi CA 30-Jul-2004
The applicant, an 8 year old boy, became part of his Indian family who lived in England, through an adoption recognised in Indian Law, but not in English Law. Though the adoption was genuine, his family ties had not been broken in India. The family . .
Cited – Fitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
Cited – Goodwin v The United Kingdom ECHR 11-Jul-2002
The claimant was a post operative male to female trans-sexual. She claimed that her human rights were infringed when she was still treated as a man for National Insurance contributions purposes, where she continued to make payments after the age at . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Family

Updated: 04 June 2022; Ref: scu.165496

In re F (Enduring power of Attorney): ChD 2 Apr 2004

Mrs F had given an enduring power to her son, but then became incapable and the power was registered. Her daughter had in the meantime applied to be appointed as her receiver. There was particular bitterness between the brother and sister. F called in the Lord Chancellor’s medical visitor and asked that her children settle their differences, and if they could not, then an independent receiver should be appointed.
Held: The issue was not whether the attorney appointed was suitable, but whether he was unsuitable. The master had held that the enduring power would continue to be a stumbling block to any reconciliation, however the only proper question was whether the mother’s more recently expressed view made him unsuitable. In a complex administration, co-operation between siblings might be necessary, but in simpler cases it might not. This was a simple case, and there was no evidence that the appointment of an independent receiver would do anything to reduce the hostility. Without clear evidence that the hostility would adversely affect the administration under the power, the power should be registered.

Judges:

Patten J

Citations:

Times 29-Apr-2004

Statutes:

Enduring Powers of Attorney Act 1985 6(5)(e), Mental Health Act 1983 99

Jurisdiction:

England and Wales

Citing:

Cited – X v Y, Z sub nom In re E (Enduring power of attorney) ChD 18-Feb-2000
The application was an appeal against an order registering an enduring power of attorney. The appeal from Master Lush was by way of rehearing. The donor had executed two powers. The second was invalid, and the donees of the first power sought to . .
Cited – In Re W (Enduring Power of Attorney) CA 9-Jan-2001
A party who objected to the registration of an enduring power of attorney on the basis that the donor had not had the mental capacity to sign it, had the burden of proving that assertion.
Held: Hostility between the donee of a power and other . .
Lists of cited by and citing cases may be incomplete.

Agency, Family

Updated: 04 June 2022; Ref: scu.196575

F v Switzerland: ECHR 18 Dec 1987

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 12; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – domestic proceedings; Costs and expenses award – Convention proceedings
A Swiss law placed limitations on the remarriage of someone who had been the guilty party in previous divorce proceedings.
Held: The Court explained that the closing words in Article 12 (‘according to the national laws governing the exercise of this right’ ) confer only a limited power on states. In all the Council of Europe’s member States, these ‘limitations’ appear as conditions and are embodied in procedural or substantive rules. The former relate mainly to publicity and the solemnisation of marriage, while the latter relate primarily to capacity, consent and certain impediments’. The court recognized that the national law sought to promote stability in marriage, but ‘the disputed measure, which affected the very essence of the right to marry, was disproportionate to the legitimate aim pursued.’ National laws: ‘must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired.
In all the Council of Europe’s member States, these ‘limitations’ appear as conditions and are embodied in procedural or substantive rules. The former relate mainly to publicity and the solemnisation of marriage, while the latter relate primarily to capacity, consent and certain impediments.’

Citations:

(1987) 10 EHRR 411, 11329/85, [1987] ECHR 32

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 12

Cited by:

Cited – B And L v The United Kingdom ECHR 13-Sep-2005
The claimants said that UK law was inconsistent in its treatment of marriage between in-laws, since it provided that it was available only by means of a private Act of parliament.
Held: The provision was irrational and infringed the human . .
Cited – Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department Admn 10-Apr-2006
The respondent brought in laws restricting marriages between persons subject to immigration control, requiring those seeking non Church of England marriages to first obtain a certificate from the defendant that the marriage was approved. The . .
Cited – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Cited – Secretary of State for the Home Department v Baiai and others CA 23-May-2007
The claimants challenged rules which meant that certain immigrants subject to immigration control were unable to marry, save only those marrying according to the rites of the Church of England.
Held: The rules were not justified by evidence . .
Cited – Baiai and others, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2008
In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Family

Updated: 04 June 2022; Ref: scu.165008

Gaskin v The United Kingdom: ECHR 7 Jul 1989

The applicant complained of ill-treatment while he was in the care of a local authority and living with foster parents. He sought access to his case records held by the local authority but his request was denied.
Held: The refusal to allow him access to his records involved a breach of his rights under Article 8, because there was no independent mechanism for determining whether or not access should be permitted where the consent of third party contributors could not be obtained. The Court emphasised the need for specific justification for preventing individuals from having access to information which forms part of their private and family life. Relationships between children and foster parents or carers fall within the definition of ‘family’ within the meaning of Article 8.
The Court rejected any claim under article 10 ‘in the circumstances of the case’ for essentially the same reason as it had in Leander, which it followed.
However, the court rejected a submission that Article 10 provided the applicant with a right of access to social services care records concerning periods of his childhood spent in foster care, saying: ‘The Court holds, as it did in Leander v. Sweden, that ‘the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him.’ Also in the circumstances of this case, Article 10 does not embody an obligation on the State concerned to impart the information in question to the individual.
There has thus been no interference with Mr Gaskin’s right to receive information as protected by Article 10.’

Judges:

R Ryssdal, P

Citations:

10454/83, [1990] 1 FLR 167, [1989] ECHR 13, (1989) 12 EHRR 36

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 8 10

Jurisdiction:

Human Rights

Citing:

Applied – Leander v Sweden ECHR 26-Mar-1987
Mr Leander had been refused employment at a museum located on a naval base, having been assessed as a security risk on the basis of information stored on a register maintained by State security services that had not been disclosed him. Mr Leander . .
At Court of Appeal – Gaskin v Liverpool City Council CA 1980
The plaintiff, who had been in the care of the respondent authority as a child, brought proceedings against the local authority for negligence in their care of him. His application for disclosure of the case notes and records of his period in care . .

Cited by:

Cited – Durant v Financial Services Authority CA 8-Dec-2003
The appellant had been unsuccessful in litigation against his former bank. The Financial Services Authority had subsequently investigated his complaint against the bank. Using section 7 of the Data Protection Act 1998, he requested disclosure of his . .
Cited – Mersey Care NHS Trust v Ackroyd QBD 7-Feb-2006
The trust, operators of Ashworth Secure Hospital sought from the defendant journalist disclosure of the name of their employee who had revealed to the defendant matters about the holding of Ian Brady, the Moors Murderer, and in particular medical . .
Cited – Brown v HM Queen Elizabeth, the Queen Mother, the Executors of the Estate of and others FD 5-Jul-2007
The plaintiff sought the unsealing of the wills of the late Queen Mother and of the late Princess Margaret, claiming that these would assist him establishing that he was the illegitimate son of the latter.
Held: The application was frivolous. . .
Cited – G v E and Others CoP 26-Mar-2010
E Was born with and still suffered severe learning difficulties. The court was asked as to the extent of his capacity to make decisions, and as to where he should live, with a family member, the carer or with the local authority, which had removed . .
Cited – Kennedy v Charity Commission CA 20-Mar-2012
The claimant sought disclosure of an investigation conducted by the respondent. The respondent replied that the material was exempt within section 32(2). The court had found that that exemption continued permanently even after the inquiry was . .
Cited – Guardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court CA 3-Apr-2012
The newspaper applied for leave to access documents referred to but not released during the course of extradition proceedings in open court.
Held: The application was to be allowed. Though extradition proceedings were not governed by the Civil . .
Cited – Durham County Council v Dunn CA 13-Dec-2012
The claimant wished to begin a claim alleging historic sexual abuse while he had been at an institution run by the defendants. The claimant sought pre-trial disclosure of various documents and the court now considered the principle applicable, and . .
Cited – Gillberg v Sweden ECHR 3-Apr-2012
(Grand Chamber) The applicant, a consultant psychiatrist, had conducted research with children under undertakings of absolute privacy. Several years later a researcher, for proper reasons, obtained court orders for the disclosure of the data under . .
Cited – Kennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Family, Information

Updated: 04 June 2022; Ref: scu.165046

Davis v Johnson: HL 2 Jan 1978

The court was asked to interpret the 1976 Act to see whether its protection extended to cohabitees as well as to wives. In doing so it had to look at practice in the Court of Appeal in having to follow precedent.
Held: The operation of the doctrine of precedent in the Court of Appeal so far as civil matters were concerned had been ‘clear and unassailable’ for more than 30 years. As to Young v Bristol Aeroplane: ‘The rule as expounded in the Bristol Aeroplane case was not new in 1944. It had been acted upon on numerous occasions and had, as recently as the previous year, received the express confirmation of this House of Viscount Simon LC, with whose speech Lord Atkin agreed: see Perrin -v- Morgan …. Although prior to 1944 there had been an occasional deviation from the rule, which was why a court of six was brought together to consider it, there has been none since. It has been uniformly acted upon by the Court of Appeal and re-affirmed, notably by a Court of Appeal of five, of which Lord Denning as Denning LJ was a member, in Morelle -v- Wakeling …. The rule was also been uniformly accepted by this House as being correct. Because until recently it has never been questioned, the acceptance of the rule has generally been tacit in the course of recounting the circumstances which have rendered necessary an appeal to your Lordships’ House.’ The House re-affirmed the rules of stare decisis. As to whether it was correct to look to debates in Parliament: (Lord Scarman) ‘There are two good reasons why the courts should refuse to have regard to what is said in Parliament or by Ministers as aids to the interpretations of a statute. First, such material is an unreliable guide to the meaning of what is enacted. It promotes confusion not clarity… Secondly, counsel are not permitted to refer to Hansard in argument. So long as this rule is maintained by Parliament (it is not the creation of the judges) it must be wrong for the judge to make any judicial use of proceedings in Parliament for the purpose of interpreting statutes.’

Judges:

Lord Diplock, Viscount Dilhorne, Lord Kilbrandon, Lord Salmon, Lord Scarman

Citations:

[1979] AC 264, [1978] 1 All ER 1132, [1978] UKHL 1, [1978] 2 WLR 553

Links:

Bailii

Statutes:

Domestic Violence and Matrimonial Proceedings Act 1976

Jurisdiction:

England and Wales

Citing:

Affirmed – Young v The Bristol Aeroplane Co Ltd CA 28-Jul-1944
Court of Appeal must follow Own Decisions
The claimant was injured and received compensation. He then sought to recover again, alleging breach of statutory duty by his employers.
Held: The Court of Appeal was in general bound to follow its own previous decisions. The court considered . .
Appeal from – Davis v Johnson CA 1978
The court had to consider whether the Act protected cohabitees as well as wives. In doing so the court looked at whether it could look to parliamentary debates.
Held: Lord Denning MR said: ‘Some may say, and indeed have said, that judges . .

Cited by:

Considered – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Sorrell v Sorrell FD 29-Jul-2005
The parties contested ancillary relief on their divorce. The marriage had been very long, and the assets were very substantial. The husband contended that these assets represented an exceptional contribution on his part.
Held: In this case an . .
Cited – James, Regina v; Regina v Karimi CACD 25-Jan-2006
The defendants appealed their convictions for murder, saying that the court had not properly guided the jury on provocation. The court was faced with apparently conflicting decision of the House of Lords (Smith) and the Privy Council (Holley).
Cited – Woodward v Abbey National Plc CA 22-Jun-2006
The claimant appealed refusal to award damages after an alleged failure to give a proper reference, saying that the decision in Fadipe could not stand with the later decision in Rhys-Harper. She said that she had suffered victimisation after making . .
Cited – RJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
Cited – Willers v Joyce and Another (Re: Gubay (Deceased) No 2) SC 20-Jul-2016
The Court was asked whether and in what circumstances a lower court may follow a decision of the Privy Council which has reached a different conclusion from that of the House of Lords (or the Supreme Court or Court of Appeal) on an earlier occasion. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Family

Updated: 02 June 2022; Ref: scu.182420