Category: Children

NJDB v JEG: SCS 22 Oct 2010

The parties dispute contact arrangements between the pursuer and their child. The cost of the proceedings, excluding judicial costs, had been estimated at about andpound;1 million, of which by far the larger proportion had been borne by the Scottish Legal Aid Board.

Judges:

Lord President, Lord Carloway, Lord Hardie

Citations:

[2010] ScotCS CSIH – 83, [2010] CSIH 83, 2010 GWD 36-746, 2010 Fam LR 134

Links:

Bailii

Statutes:

Children (Scotland) Act 1995 11

Cited by:

Appeal from – NJDB v JEG and Another SC 23-May-2012
Mother and father disputed whether the father should be allowed contact with their child S. Court orders had been made for residential and non-residential contact, but there were difficulties and the order for contact was reversed on the basis that . .
Lists of cited by and citing cases may be incomplete.

Scotland, Children

Updated: 25 August 2022; Ref: scu.425539

SO, Regina (on The Application of) v London Borough of Barking and Dagenham: CA 12 Oct 2010

The court was asked upon whom falls the financial burden of providing accommodation to an eighteen year old asylum seeker who is also a ‘former relevant child’, to the extent that his welfare requires it, where the asylum seeker is not in education or training. Does it fall upon the local authority, pursuant to its duty under s.23C(4)(c) of the Children Act 1989, as amended, hereinafter ‘the Act’, or does it fall upon the National Asylum Support Service hereinafter ‘NASS’, and thus upon the Secretary of State, pursuant to her powers under the Immigration and Asylum Act 1999?

Judges:

Jacob, Leveson, Tomplinson LJJ

Citations:

[2010] EWCA Civ 1101, [2011] 1 WLR 1283, [2011] 1 FLR 734, [2011] PTSR 549, [2011] BLGR 1, [2011] HLR 4, [2011] Fam Law 24, (2010) 13 CCL Rep 591

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – SL v Westminster City Council SC 9-May-2013
The applicant for assistance from the respondent Council under the 1948 Act was a destitute, homeless failed asylum seeker. He had been admitted to hospital for psychiatric care, but the Council had maintained that his condition was part of and . .
Lists of cited by and citing cases may be incomplete.

Immigration, Benefits, Children, Local Government

Updated: 25 August 2022; Ref: scu.424981

WSCC v M and Others: FD 30 Jul 2010

Application by a local authority for permission to withdraw care proceedings pursuant to FPR 1991 4.5; it is supported by the parents and by W (a party in his own right). The guardian advocates that no order should be made in this case but is less confident in (but does not seek to oppose) withdrawal as the proper route to that end. The alternative approach is the conduct of the listed fact finding hearing leading to no order under Section 1(5) of the Children Act 1989 (the Act).

Judges:

Hedley J

Citations:

[2010] EWHC 1914 (Fam), [2011] 1 FLR 188, [2010] Fam Law 1267

Links:

Bailii

Statutes:

Family Proceedings Rules 1991 4.5, Children Act 1989 1(5)

Jurisdiction:

England and Wales

Children

Updated: 25 August 2022; Ref: scu.424944

A Mother v A Father; A Local Authority v A: CA 14 Oct 2009

Care proceedings were under way. The mother objected to the disclosure of certain materials to the father, saying that they were extremely sensitive, and would threaten her relationship with him. She appealed against an order allowing it.
Held: The judge had erred, and had not taken proper account of expert evidence suggesting that there would be a real risk to the mother. The principles of non-disclosure might now have to be extended to other people whose Convention rights might be violated by disclosure.

Judges:

Wilson, Etherton, Sullivan LJJ

Citations:

[2009] EWCA Civ 1057, [2010] 2 FLR 1757, [2010] 3 FCR 202, [2010] Fam Law 1063

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

England and Wales

Cited by:

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 – In re A (A Child) SC 12-Dec-2012
A woman, X, had made an allegation in confidence she had been sexually assaulted as a child. The court was asked whether that confidence could be overriden to allow an investigation to protect if necessary a child still living with the man. Evidence . .
Lists of cited by and citing cases may be incomplete.

Children, Human Rights

Updated: 24 August 2022; Ref: scu.423787

LD (Article 8 Best Interests of Child) Zimbabwe: UTIAC 10 Aug 2010

UTIAC 1. Consistent application of the Immigration Rules to promote the economic and social policy of the UK is a relevant factor in carrying out the balancing exercise under Article 8(2) but the weight attached to it depends on the context of the case, whether there was ever any claim under the rules for indefinite leave to remain, and why such claim was not accepted.
2. In the particular circumstances of this case the weight to be attached to enforcement of immigration control was small in the light of the misdirection as to Paragraph 320 (7A), and the fact that the paragraph applies to all cases whether there is family life deserving respect or not.
3. The interests of minor children and their welfare are a primary consideration. A failure to treat them as such will violate Article 8(2).
4. Weighty reasons would be required to justify separating a parent from a lawfully settled minor child or child from a community in which he or she had grown up and lived for most of his or her life. The general situation in the relevant home country is also relevant, especially if it is known that the conditions there are dire (as they are, for example, in Zimbabwe at present).
5. In this particular case, no useful purpose would have been served if the appellant is required to depart the UK in order to make an entry clearance from abroad. All the issues are to be determined in this appeal rather than in the course of an investigation abroad where there would in any event be an interference.

Judges:

Blake J, P, Ward SIJ

Citations:

[2010] UKUT 278 (IAC), [2011] Imm AR 99

Links:

Bailii

Statutes:

Europsan Convention on Human Rights 8(2)

Jurisdiction:

England and Wales

Immigration, Children, Human Rights

Updated: 22 August 2022; Ref: scu.421569

W v W: FD 10 Dec 2009

The 17 year old daughter applied to be joined in proceedings brought by her father for the return to Australia of her 11 year old brother.
Held: She was to be joined as a pert

Judges:

Baker J

Citations:

[2009] EWHC 3288 (Fam)

Links:

Bailii

Statutes:

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

Children, International, Litigation Practice

Updated: 22 August 2022; Ref: scu.421349

Re M (Intractable Contact Dispute: Interim Care Orders): FD 2003

The mother had persuaded her children of the lie that their father had physically and sexually abused them, and that their paternal grandparents were also a danger to them. She would not allow any contact with them, and disobeyed court orders for contact.
Held: Her conduct was causing the children significant harm. The court invited the local authority to take care proceedings, the outcome of which was the removal of the children from their mother, and residence orders in favour of their father. This was a clear case of parental alienation.

Judges:

Wall J

Citations:

[2003] 2 FLR 636, [2003] EWHC Fam 1024

Jurisdiction:

England and Wales

Cited by:

Cited – The Father v The Mother, O by Cafcass Legal; In re O (a Child) (Contact: Withdrawal of application) FD 12-Dec-2003
The father sought to withdraw his application for contact, but the court took the opportunity to explain some points relating to contact disputes.
Held: Such disputes engender very deep feelings. Courts must ensure contact with both parents . .
Cited – F v M FD 1-Apr-2004
The court considered the ‘ongoing debate’ about the court’s role in contact disputes. ‘this case illustrates all too uncomfortably the failings of the system. There is much wrong with our system and the time has come for us to recognise that fact . .
Cited – A Father (Mr A) v A Mother (Mrs A); Their Two Children (B And C) FD 4-Feb-2004
After a divorce, the father sought a joint residence order for the two young children. The mother alleged sexually inappropriate behaviour by the father. The court found this allegation clearly untrue. The dispute was bitter and protracted. . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 21 August 2022; Ref: scu.188860

In re D (Infants): CA 1970

D was in the care of a local authority. Wardship proceedings were under way. At first instance, Whitfor J had granted an order that the authority should disclose their records held under the 1955 Regulations. The authority appealed.
Held: The appeal succeeded. The records were privileged from disclosure, though in exceptional situations, an order might be made. The court considered what information was to be disclosed in the context of wardship proceedings, and in particular as to the effective functioning of a local authority in relation to the welfare of boarded-out children.

Judges:

Lord Denning MR, Harman and Karminski LJJ

Citations:

[1970] 1 WLR 599, [1970] 1 All ER 1089

Statutes:

Boarding-Out of Children Regulations 1955

Jurisdiction:

England and Wales

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Children, Litigation Practice

Updated: 21 August 2022; Ref: scu.467124

In re A (Children) (Abduction: Interim Powers); EA v GA: CA 27 May 2010

The parents, both of Nigerian origin had started a family in Ireland. The mother came to England seeking asylum, going first to Salford and then to London. The father sought their return under the 1985 Act. The court had made interim orders for the authority to support the children and mother pending the outcome of the husband’s application, but these were discharged.
Held: The initial order had been made correctly, and the mother’s appeal against its cancellation succeeded. Child protection as such was only part of the duty falling on a central government under the Convention, and the court did have appropriate powers to require local authorities to safeguard the welfare of the child.

Judges:

Thorpe LJ, Etherton LJ

Citations:

[2010] WLR (D) 139, [2010] EWCA Civ 586

Links:

WLRD, Bailii

Statutes:

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

Jurisdiction:

England and Wales

Children

Updated: 19 August 2022; Ref: scu.417080

AB v CD: FD 24 May 2013

The Applicant AB, a lesbian woman aged 37, applied for contact to twin boys, E and F, aged 3. In making that application, she described herself as the boys’ ‘parent’; she ws so defined on the boys’ birth certificates. For the first 17 months of their lives, she fulfilled a parental role, as an integral part of the boys’ family with her then partner, and the mother of the boys, CD. CD opposed the contact application, disputing that AB was the boys’ ‘parent’, and inviting the court to declare in line with her contention that AB is not a parent, under section 55A of the Family Law Act 1986.
Held: The court pointed to the lamentable shortcomings in a clinic identified only as clinic Z which, in the judge’s view, had fallen ‘far short’ of its obligations and which had failed to comply with the conditions of the licence granted to it by the HFEA.
Both partners had signed a Form IC before the treatment, but the statutory consent notices ‘must be in forms WP and PP.’ Moreover, he said, the Form IC ‘did not purport to establish the grant of legal rights’. ‘In the following respects I find that the clinic did not comply with its licence conditions in providing treatment to AB and CD in that:
(i) The clinic had not provided sufficient information to both parties to enable them to make informed decisions about parentage issues at the time of the treatment.
(ii) The clinic did not provide the parties with an opportunity to receive proper counselling about the step proposed prior to treatment.
(iii) Inadequate records have been kept of the treatment and the delivery of the WP/PP forms.’

Judges:

Cobb J

Citations:

[2013] EWHC 1418 (Fam), [2013] 2 FLR 1357

Links:

Bailii

Statutes:

Human Fertilisation and Embryology Act 2008, Human Fertilisation and Embryology Act 1990, Family Law Act 1986 55A

Jurisdiction:

England and Wales

Citing:

Cited – The Ampthill Peerage Case HL 1977
There was a dispute about the legitimacy of an heir to the title. New evidence had been discovered after the trial.
Held: The House considered whether a new trial of an action might be ordered after discovery of new evidence: ‘The law knows, . .
Cited – In Re R (Parental responsibility: IVF baby); D (A Child), Re HL 12-May-2005
The parents had received IVF treatment together, but had separated before the child was born. The mother resisted an application by the father for a declaration of paternity.
Held: The father’s appeal failed. The Act made statutory provision . .
Cited – In Re G (A Minor) (Interim Care Order: Residential Assessment); G (Children), In Re (Residence: Same Sex Partner) HL 26-Jul-2006
The parties had been a lesbian couple each with children. Each now was in a new relationship. One registered the two daughters of the other at a school now local to her but without first consulting the birth mother, who then applied for residence . .

Cited by:

Cited – In the matter of the Human Fertilisation and Embryology Act 2008 ; A and Others FD 11-Sep-2015
The court was asked: ‘who, in law, is or are the parent(s) of a child born as a result of treatment carried out under this legislation’
Held: The court pointed again to the failures to keep proper records within several fertility clinics. . .
Lists of cited by and citing cases may be incomplete.

Family, Children

Updated: 18 August 2022; Ref: scu.510086

Regina (J) v Caerphilly County Borough Council: QBD 12 Apr 2005

The claimant sought a declaration that the council had failed in its duty to provide him with an independent personal adviser. The council had appointed the same person to act as his personal adviser and also to prepare the statutory assessment and plan for his transition from care.
Held: The Regulations envisaged the officer preparing the plan to take account of the views of the personal adviser. That demosntrated that the rules envisaged two people. To join the roles was not desirable. The adviser’s role was to act as advocate for the child in his dealings with the authority, and that role would be compromised if he was also invloved with the statutory plan.

Judges:

Munby J

Citations:

Times 21-Apr-2005, [2005] EWHC 586 (Admin), [2005] 2 FLR 860

Links:

Bailii

Statutes:

Children (Leaving Care) Act 2000, Children (Leaving Care) Regulations 2001 (2001 No 2189)

Jurisdiction:

England and Wales

Cited by:

Cited – G, Regina (on the Application of) v Nottingham City Council Admn 1-Feb-2008
The respondent authority had removed the child from the mother at birth but without first obtaining any court authority. The court had made a peremptory order for the return of the child. The court explained its actions.
Held: Neither social . .
Lists of cited by and citing cases may be incomplete.

Children, Local Government

Updated: 16 August 2022; Ref: scu.224372

F v S (Wardship: Jurisdiction): FD 1991

Citations:

[1991] 2 FLR 349

Jurisdiction:

England and Wales

Cited by:

Appeal from – F v S (Wardship: Jurisdiction) CA 1993
. .
Cited – In Re S (A Minor) (Abduction: European Convention) HL 30-Jul-1997
An illegitimate child’s habitual country of residence is determined at the date of death of his mother when he was to be removed following the death. Where the mother of an illegitimate child who is resident in England dies and the grandmother takes . .
Lists of cited by and citing cases may be incomplete.

Children, Jurisdiction

Updated: 16 August 2022; Ref: scu.658685

F v S (Wardship: Jurisdiction): CA 1993

Citations:

[1993] 2 FLR 686

Jurisdiction:

England and Wales

Citing:

Appeal from – F v S (Wardship: Jurisdiction) FD 1991
. .

Cited by:

Cited – In Re S (A Minor) (Abduction: European Convention) HL 30-Jul-1997
An illegitimate child’s habitual country of residence is determined at the date of death of his mother when he was to be removed following the death. Where the mother of an illegitimate child who is resident in England dies and the grandmother takes . .
Lists of cited by and citing cases may be incomplete.

Children, Jurisdiction

Updated: 16 August 2022; Ref: scu.658686

In re P (GE) (An infant): CA 1965

A stateless child was taken by his father away from the mother in England to Israel.
Held: The wardship jurisdiction of the Court of Chancery extended to any child ‘ordinarily resident’ in this country. An infant of British nationality whether he is in or outside this country, owes a duty of allegiance to the Sovereign and so is entitled to protection.
Lord Denning MR spoke of the ordinary residence of ‘a child of tender years who cannot decide for himself where to live’: ‘So long as the father and mother are living together in the matrimonial home, the child’s ordinary residence is the home – and it is still his ordinary residence, even while he is away at boarding school. It is his base, from whence he goes out and to which he returns . . ‘
. . And ‘The court here always retains a jurisdiction over a British subject wherever he may be, though it will only exercise it abroad where the circumstances clearly warrant it: see Hope v Hope (1854) 4 De GM and G 328; In Re Willoughby (1885) 30 Ch D 324; R v Sandbach Justices, ex p Smith [1951] 1 KB 62.’
and: ‘The Crown protects every child who has his home here and will protect him in respect of his home. It will not permit anyone to kidnap the child and spirit it out of the realm. Not even its father or mother can be allowed to do so without the consent of the other. The kidnapper cannot escape the jurisdiction of the court by such a stratagem.’

Judges:

Lord Denning MR, Pearson LJ

Citations:

[1965] Ch 568

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Waltham Forest, Ex parte Vale 11-Feb-1985
The court had to decide what was the ordinary reference under the 1948 of an adult without capacity. V had been in residential care in Ireland for over 20 years, but having left there had been with her mother for two weeks. The parties argued the . .
Cited – Cornwall Council, Regina (on The Application of) v Secretary of State for Health and Somerset County Council SC 8-Jul-2015
PH had severe physical and learning disabilities and was without speech, lacking capacity to decide for himself where to live. Since the age of four he received accommodation and support at public expense. Until his majority in December 2004, he was . .
Cited – A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
Cited – In Re S (A Minor) (Abduction: European Convention) HL 30-Jul-1997
An illegitimate child’s habitual country of residence is determined at the date of death of his mother when he was to be removed following the death. Where the mother of an illegitimate child who is resident in England dies and the grandmother takes . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 16 August 2022; Ref: scu.588974

A (A Child: Wardship: Fact Finding: Domestic Violence): FD 8 May 2015

‘In the context of wardship proceedings initiated by the father of a seven year old boy, it is necessary to resolve disputed allegations of serious domestic violence as well as abusive behaviour towards the child himself.’

Judges:

Pauffley J

Citations:

[2015] EWHC 1598 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family, Children

Updated: 16 August 2022; Ref: scu.547678

Revenue and Customs v Ruas: CA 23 Mar 2010

The court was asked whether an obligation arose to pay child benefit for the children of a Portuguese worker resident here but no longer working for his children living in Portugal.
Held: The benefit was payable.

Citations:

[2010] EWCA Civ 291

Links:

Bailii

Statutes:

EC Council Regulation 1408/71 of 14 June 1971, Social Security, Contributions and Benefits Act 1992 146

Jurisdiction:

England and Wales

Citing:

Applied – Martinez Sala v Freistaat Bayern ECJ 12-May-1998
ECJ A benefit such as the child-raising allowance, which is automatically granted to persons fulfilling certain objective criteria, without any individual and discretionary assessment of personal needs, and which . .

Cited by:

Cited – Tolley (Deceased) v The Secretary of State for Work and Pensions CA 23-Oct-2013
The Court was asked as to entitlement to receive the care component of disability living allowance when she moved permanently from the United Kingdom to Spain. . .
Cited – Secretary of State for Work and Pensions v Tolley SC 29-Jul-2015
The Court was asked whether the United Kingdom is precluded, by Council Regulation (EC) No 1408/71 on the application of social security schemes to employed persons, self-employed persons and members of their families moving within the Community, . .
Lists of cited by and citing cases may be incomplete.

Benefits, European, Children

Updated: 16 August 2022; Ref: scu.403480

In re A, HA v MB (Brussels II revised: article 11(7) application): FD 24 Aug 2007

The father sought the return of his child to England after he was granted an application for contact.
Held: The procedures were inadequate, but a contact order was not an judgment requiring the return of a child to the UK. The court set out a recommended practice for such applications.

Judges:

Singer J

Citations:

[2007] EWHC 2016 (Fam), Times 02-Nov-2007

Links:

Bailii

Statutes:

Council Regulation (EC) No 2201/2203; Brussels II (revised)

Jurisdiction:

England and Wales

Children

Updated: 16 August 2022; Ref: scu.260259

North Yorkshire County Council v Wiltshire County Council: FD 1 Jun 1999

Where a child had returned to a district, and both parents and foster parents had also left the area, it was unrealistic to lay responsibility for the child’s care at the former authority, and the proper responsible authority was that within which the child now resided.

Citations:

Times 01-Jun-1999, Gazette 27-Jun-1999

Statutes:

Children Act 1989 31(8)(b)

Jurisdiction:

England and Wales

Children

Updated: 16 August 2022; Ref: scu.84348

In re L (A Minor) (Commercial Surrogacy): FD 8 Dec 2010

The child had been born in Illinois as a result of a commercial surrogacy arrangement which would have been unlawful here. The parents applied for a parental order under the 2008 Act.
Held: The order was made, but in doing so he court had to give retrospective approval to the payments. Hedley J emphasised that the consequence of statutory developments is that ‘welfare is no longer merely the Court’s first consideration but becomes its paramount consideration.’
Hedley J said: ‘It has to be accepted that in implementing the new 2008 Act, Parliament must be taken to have had in mind the accumulated jurisprudence under the 1990 Act. It is therefore significant that, with one material exception, section 54 of the 2008 Act reproduces section 30 of the 1990 Act. The exception is the widening of the categories of those who may apply and the making of transitional provisions for those who have only become entitled to apply on the coming into force of the 2008 Act. It necessarily follows, with one significant change (relating to welfare), that the law in respect of parental orders is not affected by the 2008 Act save as is noted above.
The significant change in the 2008 Act other than the enlargement of the scope of applicants relates to the welfare test. The effect of the Human Fertilisation and Embryology (Parental Orders) Regulations 2010 (SI 2010/985) is to import into section 54 applications the provisions of section 1 of the Adoption and Children Act 2002 . . What has changed, however, is that welfare is no longer merely the court’s first consideration but becomes its paramount consideration.
The effect of that must be to weight the balance between public policy considerations and welfare . . decisively in favour of welfare. It must follow that it will only be in the clearest case of the abuse of public policy that the court will be able to withhold an order if otherwise welfare considerations support its making.’

Judges:

Hedley J

Citations:

[2010] EWHC 3146 (Fam), [2011] 1 FLR 1423, [2011] Fam Law 241, [2011] 2 WLR 1006, [2011] 1 Fam 106

Links:

Bailii

Statutes:

Adoption and Children Act 2002 1, Human Fertilisation and Embryology Act 2008

Jurisdiction:

England and Wales

Cited by:

Cited – Re IJ (A Child) (Foreign Surrogacy Agreement Parental Order) FD 19-Apr-2011
The court gave reasons for making a parental order under the 2008 Act in favour of the applicants where a child had been born under surrogacy arrangements which were lawful in the Ukraine where he was born, but would have been unlawful here because . .
Cited – In re A (A Minor) FD 8-Jul-2011
An application was made in care proceedings for an order restricting publication of information about the family after the deaths of two siblings of the child subject to the application. The Sun and a local newspaper had already published stories . .
Cited – A v P (Surrogacy: Parental Order: Death of Applicant) FD 8-Jul-2011
M applied for a parental order under the 2008 Act. The child had been born through a surrogacy arrangement in India, which was lawful there, but would have been unlawful here. The clinic could not guarantee a biological relationship with the child. . .
Cited – D and L (Minors Surrogacy), Re FD 28-Sep-2012
The children had been born in India to a surrogate mother. The biological father and his civil partner sought a parental order. The mother could not be found to give her consent. She had been provided anonymously through a clinic.
Held: The . .
Cited – In re X (A Child) (Surrogacy: Time Limit) FD 3-Oct-2014
Extension of Time for Parental Order
The court considered the making of a parental order in respect of a child through surrogacy procedures outside the time limits imposed by the 2008 Act. The child had been born under Indian surrogacy laws. The commissioning parents (now the . .
Lists of cited by and citing cases may be incomplete.

Health, Children

Updated: 16 August 2022; Ref: scu.430398

Marinos v Marinos: FD 3 Sep 2007

The court was asked as to points of both law and fact under Article 3 of Council Regulation (EC) No 2201/2203, commonly known as Brussels II (revised). The greek father and english mother and their children had lived in Greece and England. W began divorce proceedings in England. H said that they were habitually resident in Greece.

Judges:

Munby J

Citations:

[2007] EWHC 2047 (Fam), [2007] 2 FLR 1018

Links:

Bailii

Statutes:

Council Regulation (EC) No 2201/2203; Brussels II (revised)

Jurisdiction:

England and Wales

Citing:

Cited – M v JM FD 14-Jun-2007
The father F sought the return to Greece of his two children. F had rights of custody, and for a time the children had been habitually resident in Greece. They disputed whether the return to England had been consensual.
Held: M had established . .

Cited by:

Cited – Rapisarda v Colladon (Irregular Divorces) FC 30-Sep-2014
The court considered applications to set aside some 180 petitions for divorce on the grounds that they appeared to be attempts to pervert the course of justice by wrongfully asserting residence in order to benefit from the UK jurisdiction.
Lists of cited by and citing cases may be incomplete.

Children

Updated: 16 August 2022; Ref: scu.260017

B (A Local Authority) v RM and Others: FD 15 Oct 2010

The court was asked whether and if so, on what basis a Court considering an application for a care order in respect of a young person with lifelong disabilities should transfer the case to the Court of Protection to be dealt with under the Mental Capacity Act, 2005, rather than the Children Act, 1989.

Judges:

Hedley J

Citations:

[2010] EWHC B31 (Fam)

Links:

Bailii

Statutes:

Mental Capacity Act 2005, Children Act 1989

Jurisdiction:

England and Wales

Children, Health

Updated: 16 August 2022; Ref: scu.430387

Re S-W: FD 1 Mar 1993

Lawyers should warn their clients of the wide range of the court’s powers in care cases. Orders can be made under other sections even though the application is under only one section. The court is not limited to the application presented, but has power to make the orders it saw to align with its first duty to treat the child’s welfare as the paramount consideration.

Citations:

Ind Summary 01-Mar-1993

Statutes:

Children Act 1989 34

Jurisdiction:

England and Wales

Children

Updated: 16 August 2022; Ref: scu.85886

Re L (Minors) (Wardship: Jurisdiction): CA 1974

The court summarised the principles as to the return of a child to a foreign country without conducting a full investigation of the merits: ‘To take a child from his native land, to remove him to another country where, maybe, his native tongue is not spoken, to divorce him from the social customs and contacts to which he has been accustomed, to interrupt his education in his native land and subject him to a foreign system of education, are all acts (offered here as examples and of course not as a complete catalogue of possible relevant factors) which are likely to be psychologically disturbing to the child, particularly at a time when his family life is also disrupted. If such a case is promptly brought to the attention of a court in this country, the judge may feel that it is in the best interests of the infant that these disturbing factors should be eliminated from his life as speedily as possible. A full investigation of the merits of the case in an English court may be incompatible with achieving this. The judge may well be persuaded that it would be better for the child that those merits should be investigated in a court in his native country.’

Judges:

Lord Justice Buckley

Citations:

[1974] 1 WLR 250

Jurisdiction:

England and Wales

Cited by:

Approved – Re P (A Minor)(Child Abduction: Non Convention Country) CA 1997
The Hague Convention concepts are not to be applied in a non-Convention case. . .
Approved – Re JA (Child Abduction: Non-Convention Country) CA 1998
The court accepted a submission that ‘the court cannot be satisfied that it is in the best interests of the child to return it to the court of habitual residence in order that that court may resolve the disputed question unless this court is . .
Cited – Re J (A Child), Re (Child returned abroad: Convention Rights); (Custody Rights: Jurisdiction) HL 16-Jun-2005
The parents had married under shariah law. They left the US to return to the father’s home country Saudi Arabia. They parted, and the mother brought their son to England against the father’s wishes and in breach of an agreement. The father sought . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 15 August 2022; Ref: scu.228370

In Re H (Minors) (Abduction: Custody Rights): HL 1991

The House addressed the question whether wrongful removal and wrongful retention were mutually exclusive concepts. The issue arose in the context of the commencement date for the 1985 Act as between the two States involved.
Held: For the purposes of the Abduction Convention the two concepts were mutually exclusive, and that because article 12 required it to be possible to calculate the 12-month period from a wrongful retention, as well as from a wrongful removal, the former could not be regarded as simply continuing, but had to have an identified date, in effect its beginning. There is ‘retention’ of the child for the purposes of the Convention only where the child has been lawfully taken from one country to another, for example for staying access for a defined period) and there has then been a wrongful failure to return the child at the expiry of that period.
Lord Brandon explained: ‘The preamble of the Convention shows that it is aimed at the protection of children internationally (my emphasis) from wrongful removal or retention. article 1(a) shows that the first object of the Convention is to secure the prompt return to the state of their habitual residence . . of children in two categories: (1) children who have been wrongfully removed from the state of their habitual residence to another contracting state; and (2) children who have been wrongfully retained in a contracting state other than the state of their habitual residence instead of being returned to the latter state. The Convention is not concerned with children who have been wrongfully removed or retained within the borders of the state of their habitual residence.’ (Emphasis of ‘other’ supplied)

Judges:

Stuart Smith LJ, Balcombe LJ (dissenting)

Citations:

[1991] 2 AC 476, [1991] 2 FLR 109, [1991] 1 All ER 836, [1991] 2 WLR 62

Statutes:

Chid Abduction and Custody Act 1985, Hague Convention on the Civil Aspects of International Child Abduction (25 October 1980)

Jurisdiction:

England and Wales

Citing:

Appeal from – In re H (Minors) CA 20-Aug-1990
The Hague Convention did not apply to wrongful acts of removal which had taken place before the 1985 Act came into force.
Lord Donaldson MR said: ‘plainly the Act and Convention can only apply if the child is found in a different State from . .

Cited by:

Cited – Re H, H v H (Child Abduction: Acquiescence) HL 10-Apr-1997
The mother and father were orthodox Jews. The mother brought the children to England from Israel against the father’s wishes. She said that he had acquiesced in their staying here by asking for them to be returned to Israel temporarily. The father . .
Cited – In Re H and others (Minors) HL 10-Apr-1997
Three young children had been brought to England from Israel by their mother but without the consent of the father, who now sought their return. The mother claimed that the father had subsequently acquiesced in the removal. Both parents were . .
Cited – CG v CW and Another (Children) CA 6-Apr-2006
A lesbian couple had split up and disputed the care of the children. An order had been made but then, in breach of that order, one removed the children overnight to Cornwall. An argument was made that the court had failed to give proper weight to . .
Cited – Re C (Children) SC 14-Feb-2018
‘This appeal concerns the Hague Convention on the Civil Aspects of International Child Abduction. It raises general questions relating to:
(1) the place which the habitual residence of the child occupies in the scheme of that Convention, and . .
Cited – In Re S (A Minor) (Abduction: European Convention) HL 30-Jul-1997
An illegitimate child’s habitual country of residence is determined at the date of death of his mother when he was to be removed following the death. Where the mother of an illegitimate child who is resident in England dies and the grandmother takes . .
Cited – In Re S (A Minor) (Abduction: European Convention) HL 30-Jul-1997
An illegitimate child’s habitual country of residence is determined at the date of death of his mother when he was to be removed following the death. Where the mother of an illegitimate child who is resident in England dies and the grandmother takes . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 15 August 2022; Ref: scu.219636

In re X (A Minor) (Wardship: Jurisdiction): CA 2 Jan 1975

A child’s stepfather obtained an order preventing publication of a book about the child.
Held: The circumstances were novel, but ‘The court has power to protect the ward from any interference with his or her welfare, direct or indirect.’ There was no general remedy for infringement of privacy, because of the importance attached to freedom of the press.
Lord Denning MR said: ‘I do not think that the wardship jurisdiction should be extended so as to enable the court to stop publication of this book.’
Roskill LJ said: ‘I would agree that no limits to that jurisdiction have yet been drawn and it is not necessary to consider here what, if any, limits there are to that jurisdiction. The sole question is whether it should be exercised in this case. The mere fact that the courts have never stretched out their arms so far as is proposed in this case is in itself no reason for not stretching out those arms further than before when necessary in a suitable case. There is never a precedent for anything until it has been done once.’ (Pennycuick) ‘It may well be, and I have no doubt it is so, that the courts, when exercising the parental power of the Crown, have, at any rate in legal theory, an unrestricted jurisdiction to do whatever is considered necessary for the welfare of a ward. It is, however, obvious that far-reaching limitations in principle on the exercise of this jurisdiction must exist. The jurisdiction is habitually exercised within those limitations. It would be quite impossible to protect a ward against everything which might do her harm. In particular the jurisdiction must be exercised with due regard to the rights of outside parties . . By ‘outside parties’ I mean those not in a family or personal relation to the ward . . Specifically, it seems to me, the court must hold a proper balance between the protection of the ward and the right of free publication enjoyed by outside parties and should hesitate long before interfering with that right . . It would be impossible and not, I think, desirable to draw any rigid line beyond which the protection of the ward should not be extended. The distinction between direct and indirect interference with a ward is valuable, though the borderline may be blurred. I am not prepared to say that the court should never interfere with the publication of matter concerning a ward. On the contrary, I think in exceptional circumstances the court should do so.’

Judges:

Denning MR, Roskill LJ, Sir John Pennycuick

Citations:

[1975] 1 All ER 697, [1975] Fam 47

Jurisdiction:

England and Wales

Citing:

Appeal from – In re X (A Minor) (Wardship: Jurisdiction) FD 1975
A stepfather made the child a ward of court in order to try to stop publication of a book containing passages about the sex life of her deceased father. The jurisdiction to order that a child’s name should not be made known, is not exercisable at . .

Cited by:

Cited – Re S (A Child) CA 10-Jul-2003
The mother of the child on behalf of whom the application was made, was to face trial for murder. The child was in care and an order was sought to restrain publiction of material which might reveal his identity, including matters arising during the . .
Cited – In re S (A Child) (Identification: Restrictions on Publication) CA 10-Jul-2003
An order was sought to protect from publicity a child whose mother faced trial for the murder of his brother. The child was now in care.
Held: The court must balance the need to protect the child with the need for freedom of the press. The . .
Cited – Kelly (A Minor) v British Broadcasting Corporation FD 25-Jul-2000
K, aged 16, had left home to join what was said to be a religious sect. His whereabouts were unknown. He had been made a ward of court and the Official Solicitor was appointed to represent his interests. He had sent messages to say that he was well . .
Lists of cited by and citing cases may be incomplete.

Children, Media

Updated: 15 August 2022; Ref: scu.184559

In re B-M (Wardship: Jurisdiction): FD 1993

The court considered a child who was a German national. He was taken by his mother out of England where they had been living and where they had their habitual residence. The mother was sole custodian of the child. On the application of the father the child was made a ward of court and the father applied for a declaration under the Hague Convention that the retention by the mother was wrongful.
Held: The court concluded that the English wardship court had jurisdiction over an alien child provided England or England and Wales is the habitual residence of the child.

Judges:

Eastham J

Citations:

[1993] 1 FLR 979

Jurisdiction:

England and Wales

Cited by:

Cited – In Re S (A Minor) (Abduction: European Convention) HL 30-Jul-1997
An illegitimate child’s habitual country of residence is determined at the date of death of his mother when he was to be removed following the death. Where the mother of an illegitimate child who is resident in England dies and the grandmother takes . .
Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 15 August 2022; Ref: scu.181964

In re X (A Minor) (Wardship: Jurisdiction): FD 1975

A stepfather made the child a ward of court in order to try to stop publication of a book containing passages about the sex life of her deceased father. The jurisdiction to order that a child’s name should not be made known, is not exercisable at all where the fact that the child is involved is wholly incidental to the proceedings and the child comes to court solely to prevent publication. The court explained the nature of the wardship jurisdiction: ‘The Crown has a duty to protect its subjects. This is and always has been especially so towards minors, that is to say now, the young under the age of 18. And it is so because children are especially vulnerable. They have not formed the defences inside themselves which older people have, and, therefore, need especial protection. They are also a country’s most valuable asset for the future. So the Crown as parens patriae delegated its powers and duty of protection to the courts. Those powers and that duty so derived are not the creation of any statute and are not limited by any statute. They are there, in my understanding, to protect the young against injury of whatever kind from whatever source.’ It was one thing that the powers exist; it was another whether they should be exercised. The court should tread warily, but an injunction was granted.

Judges:

Latey J

Citations:

[1975] Fam 47

Jurisdiction:

England and Wales

Cited by:

Appeal from – In re X (A Minor) (Wardship: Jurisdiction) CA 2-Jan-1975
A child’s stepfather obtained an order preventing publication of a book about the child.
Held: The circumstances were novel, but ‘The court has power to protect the ward from any interference with his or her welfare, direct or indirect.’ There . .
Cited – Re S (A Child) CA 10-Jul-2003
The mother of the child on behalf of whom the application was made, was to face trial for murder. The child was in care and an order was sought to restrain publiction of material which might reveal his identity, including matters arising during the . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – Kelly (A Minor) v British Broadcasting Corporation FD 25-Jul-2000
K, aged 16, had left home to join what was said to be a religious sect. His whereabouts were unknown. He had been made a ward of court and the Official Solicitor was appointed to represent his interests. He had sent messages to say that he was well . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 15 August 2022; Ref: scu.184555