Category: Children

In re D (A Child), (Abduction: Rights of Custody): HL 16 Nov 2006

The child had been born to parents who married and later divorced in Romania. The mother brought him to England without the father’s consent, and now appealed an order for his return.
Held: The mother’s appeal succeeded. The Convention required an order to be made for the return of a child only where the parent seeking the return could show some wrongful element in the removal. A right of veto given to the father to control removal from a jurisdiction would amount to ‘rights of custody’ within the meaning of article 5(a), but a potential right of veto does not. However at the time when the order had been made, the Romanian court had expressly ruled that the mother could leave and take her son with her: ‘While ultimately, therefore, the decision is one for the courts of the requested state, those courts must attach considerable weight to the authoritative decision of the requesting state on both issues.’
Under the Human Rights Act 1998, it is now unlawful for the court as a public authority to act incompatibly with the human rights and fundamental freedoms guaranteed by the European Convention on Human Rights. This applies in a Hague Convention case just as in any other. Article 20 has thus been given domestic effect by a different route. Hence a final issue is whether a return would be incompatible with the Convention rights.
Baroness Hale said that: ‘The question is, do the rights possessed under the law of the home country, by the parent who does not have day to day care of the child, amount to rights of custody or do they not?’ However, she drew a distinction between that position and a simple ‘potential right of veto’: ‘In other words, if all that the other parent has is the right to go to court and ask for an order about some aspect of the child’s upbringing, including relocation abroad, this should not amount to ‘rights of custody’. To hold otherwise would be to remove the distinction between ‘rights of custody’ and ‘rights of access’ altogether.’

Judges:

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood

Citations:

Times 17-Nov-2006, [2006] UKHL 51, [2007] 1 AC 619, [2007] 1 FLR 961, [2006] 3 WLR 989, [2007] 1 All ER 78

Links:

Bailii

Statutes:

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

Jurisdiction:

England and Wales

Citing:

Cited – C v C (Minor:Abduction: Rights of Custody Abroad) CA 1989
The English mother married the Australian father in Australia and bore their child their. After divorce both parents had custody with no right to remove the child. The mother brought the child to England without the father’s consent.
Held: The . .
Cited – In Re W (Minors) (Child Abduction: Unmarried Father); In Re B (A Minor) (Child Abduction: Unmarried Father) FD 9-Apr-1998
An unmarried father has no rights as regards a child until an application is made, but a mother taking child abroad whilst a court application was continuing could be restrained as an act of child abduction through the court’s own parental rights . .
Appeal from – In re D (A Child) CA 25-May-2006
The mother had unlawfully brought her son here from Romania, and now appealed an order for his return.
Held: The appeal was dismissed. . .
At first instance – In re D (a Child) FD 2006
The father sought the return of his son to Romania. The mother had brought him here without the father’s consent. The father said that a Romanian court had ordered his return, but the expert evidence as to the effect of the order was conflicting. . .
Cited – J, Petitioner IHCS 2005
‘rights of custody’ for Convention purposes included the right to grant or withhold consent to the child’s removal from the United Kingdom under section 2(3) of the 1995 Act. . .
Cited – In re P (A Child) (Abduction: Consent); (Abduction: Custody Rights) CA 28-Jul-2004
The father sought the return to the USA of his daughter, brought here by her mother. The father had custody, but the mother said he had consented to the child being brought here.
Held: The issue of consent did not affect the question of the . .
Cited – Hunter v Murrow (Abduction: Rights of Custody) CA 28-Jul-2005
Rights of access can in themselves amount to ‘rights of custody’ for the Convention. Dyson LJ divided the question of whether the father had rights of custody into two. The first, which he called ‘the domestic law question’, was what rights the . .
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 – Regina v Secretary of State for the Home Department, ex parte Adan, Same, ex parte Aitsegeur HL 20-Dec-2000
The Convention gave protection to an asylum seeker fearing persecution by non-state agents in his country of origin where that government was unable or unwilling to provide protection. France and Germany did not recognise this right, and therefore . .
Cited – V-B (Minors) (Abduction: Custody Rights) CA 17-Mar-1999
Rights of custody are to be distinguished from mere rights of access. . .

Cited by:

Cited – Re M and another (Children) (Abduction; Rights of Custody) HL 5-Dec-2007
Three children had been brought from Zimbabwe by their mother against the wishes of the father and in breach of his rights there. The mother appealed an order for their return.
Held: The mother’s appeal was allowed. The House had to consider . .
Cited – AF v M B-F FD 22-Feb-2008
The father sought the return of the two children to Poland after they had been brought to England by the mother. She said that she had come to seek work as a dentist, and had been unable to support the family in Poland. She said that her Polish . .
Cited – In Re I (A Child) SC 1-Dec-2009
The child had been born in Britain to British citizen parents from Pakistan and India. There had been care proceedings, but later and with the court’s consent the father took him to Pakistan undertaking to return him, but then failed to do so. . .
Cited – Re E (Children) (Abduction: Custody Appeal) SC 10-Jun-2011
Two children were born in Norway to a British mother (M) and Norwegian father (F). Having lived in Norway, M brought them to England to stay, but without F’s knowledge or consent. M replied to his application for their return that the children would . .
Cited – Re S (A Child) SC 14-Mar-2012
The mother appealed against an order confirmed by the Court of Appeal for the return of her child to Australia. The mother and father had cohabited in Sydney, before M returned with S without F’s consent or the permission of an Australian court. The . .
Cited – In re K (A Child) SC 15-Mar-2014
Rights of Custody under Convention
The Court was asked as to what were ‘rights of custody’ within the Convention. M had at first left her child with the maternal grandmother in an informal but long term arrangement in Latvia when M moved to Northern Ireland. Later M removed the child . .
Lists of cited by and citing cases may be incomplete.

Children, International, Human Rights

Updated: 08 July 2022; Ref: scu.246083

B v The United Kingdom; P v The United Kingdom: ECHR 2001

The provisions of rule 4.16(7) providing for confidentiality in children proceedings were Convention compliant: ‘such proceedings are prime examples of cases where the exclusion of the press and public may be justified in order to protect the privacy of the child and parties and to avoid prejudicing the interests of justice. To enable the deciding judge to gain as full and accurate a picture as possible of the advantages and disadvantages of the various residence and contact options open to the child, it is essential that the parents and other witnesses feel able to express themselves candidly on highly personal issues without fear of public curiosity or comment.’ but
‘The applicants submit that the presumption in favour of a private hearing in cases under the Children Act should be reversed. However, while the court agrees that article 6(1) states a general rule that civil proceedings, inter alia, should take place in public, it does not find it inconsistent with this provision for a state to designate an entire class of case as an exception to the general rule where considered necessary for the interests of morals, public order or national security or where required by the interests of juveniles or the protection of the private life of the parties, although the need for such a measure must always be subject to the court’s control. The English procedural law can therefore be seen as a specific reflection of the general exceptions provided for by article 6(1).
Furthermore, the English tribunals have a discretion to hold Children Act proceedings in public if merited by the special features of the case, and the judge must consider whether or not to exercise his or her discretion in this respect if requested by one of the parties. Turning to the facts before it, the Court notes that . . the judges at first instance and on appeal gave careful consideration and detailed explanations of their reasons for holding that the proceedings should continue in chambers.’
Judge Sir Nicholas Bratza said: ‘As to the complaint concerning the holding of the proceedings in camera, I fully share the reasoning of the majority, the decisive point in my view being that in both cases the county court judge exercised his independent discretion to exclude the public from the substantive hearing in the interests of the children concerned.’
Residence and contact proceedings are prime examples of cases where the exclusion of the press and public may be justified in order to protect the privacy of the child and/ or the parties and to avoid prejudicing the interests of justice. ‘To enable the deciding Judge to gain as full and accurate a picture as possible of the advantages and disadvantages of various residences and contact options open to the child, it is essential that the parents and other witnesses feel able to express themselves candidly on highly personal issues without fear of public curiosity or comment . . does not find it inconsistent with this provision for a State to designate an entire class of case as an exception to the general rule . . where required by the interests of juveniles or the protection of the private life of the parties, although the need for such a measure must always be subject to the Court’s control. The English procedural law can therefore be seen as a specific reflection of the general exceptions provided for by Article 6(1).’

Judges:

Judge Sir Nicholas Bratza

Citations:

[2001] 2 FLR 261, 35974/97, [2001] ECHR 298, 36337/97, [2001] 2 FCR 221, (2002) 34 EHRR 19, [2001] Fam Law 506, 11 BHRC 667

Links:

Bailii

Statutes:

Family Proceedings Rules 1991 4.16(7), European Convention on Human Rights 6(1)

Jurisdiction:

England and Wales

Cited by:

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 – 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 – A v Independent News and Media Ltd and Others CA 31-Mar-2010
The newspapers sought leave to report proceedings before the Court of Protection in connection with a patient unable to manage his own affairs. The patient retained a possible capacity to work as a professional musician. The family wanted the . .
Cited – Lykiardopulo v Lykiardopulo CA 19-Nov-2010
The court was asked as to how a Family Division judge might decide whether or not to publish an ancillary relief judgment at the conclusion of a trial during which one of the parties conspired to present a perjured case. H and family members had . .
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 – MX v Dartford and Gravesham NHS Trust and Others CA 17-Feb-2015
Application was made for approval of a compromise of a claim for damages for personal injury for the child. The court now considered whether an order should be made to protect the identity of the six year old claimant.
Held: An order should . .
Lists of cited by and citing cases may be incomplete.

Family, Human Rights, Children, Media

Updated: 08 July 2022; Ref: scu.245940

Re L (Children), (Care Proceedings: Significant Harm): CA 25 Aug 2006

The Court allowed an appeal by parents against a judge’s conclusion that their children had suffered and were likely to suffer significant harm and it remitted the issue for re-hearing. The professional evidence had been that the parents’ deficiencies had had ‘subtle and ambiguous consequences’ for the children. Such consequences could not amount to significant harm.
Sometimes albeit only after the closest inquiry, a child falls properly to be taken into long-term care although his initial removal from the parents was prompted by an allegation which turns out to be entirely false.

Citations:

[2006] EWCA Civ 1282, [2007] Fam Law 17, [2006] 3 FCR 301, [2007] 1 FLR 1068

Links:

Bailii

Statutes:

Children Act 1989 31

Jurisdiction:

England and Wales

Cited by:

Cited – Re MA and Others (Children) CA 31-Jul-2009
Children appealed against dismissal of their care proceedings on the basis that the threshold had not been reached. The parents resisted.
Held: It could not be said that the decision so plainly wrong that the judge’s conclusion on the facts . .
Cited – Re B (A Child) (Care Proceedings: Threshold Criteria) SC 12-Jun-2013
B had been removed into care at birth. The parents now appealed against a care order made with a view to B’s adoption. The Court was asked as to the situation where the risks were necessarily only anticipated, and as to appeals against a finding of . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 07 July 2022; Ref: scu.245323

In re EC (Child abduction: Stayed proceedings): CA 28 Jun 2006

Child abduction proceedings had been issued after the father had applied for residence here. The mother now appealed against the temporary lifting of the stay on the father’s proceedings which followed her application. The judge ordered for the child’s return, as he was required to do, but also allowed the possibility of the father’s application proceeding if the court in Budapest had declined jurisdiction.
Held: This was a misuse of the judge’s powers. The father had not mitigated his wrong by issuing proceedings here, but rather increased the mother’s fears. The English court should not make orders which could be read to imply criticism of a foreign court taking proper jurisdiction.

Judges:

Thorpe LJ, Dyson LJ, Hallett LJ

Citations:

Times 19-Jul-2006, [2006] EWCA Civ 1115, [2006] Fam Law 918, [2007] 1 FLR 57

Links:

Bailii

Statutes:

Children Act 1989, Child Abduction and Custody Act 1985

Jurisdiction:

England and Wales

Children, International

Updated: 07 July 2022; Ref: scu.244229

Re Birchall; Wilson v Birchall: CA 1880

In the administration of his estate the widow of the deceased took out a summons asking for a declaration that a large amount of personal property was held by the deceased as trustee for her and so did not fall into his estate. A compromise was suggested dividing the chattels between the widow and the estate. Counsel for infant beneficiaries refused to assent, the guardian being opposed to the compromise.
Held: A court cannot force a litigation friend to enter into a compromise against his wishes.
Jessel MR said: ‘This is not approving of a compromise, but compelling one. What jurisdiction has the court to do so? . . In my opinion the course which has been taken in this case is quite unprecedented. The court can approve of a compromise on behalf of infants, but it cannot force one upon them against the opinion of their advisers. The practice . . has been to require not only that the compromise should be assented to by the next friend or guardian of the infant, but that his solicitor should make an affidavit that he believes the compromise to be beneficial to the infant, and that his counsel should give an opinion that he considers it to be so . . This is the first time that I have known a compromise enforced upon infants, against the opinion of their guardians or next friend and of their legal advisers, and I am of the opinion that the orders cannot stand.’

Judges:

Jessel MR, James and Cotton LJJ

Citations:

(1880) 16 Ch D 41

Jurisdiction:

England and Wales

Cited by:

Cited – Bailey v Warre CA 7-Feb-2006
The claimant had been severely injured in a road traffic accident. His claim was compromised and embodied in a court order, but later a question was raised as to whether he had had mental capacity at the time to make the compromise he had.
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Children

Updated: 07 July 2022; Ref: scu.238880

In re K (Children): CA 27 Jul 2005

The mother appealed an order that her younger son be placed in care and freed for adoption. Hers and her children’s lives had been chaotic. Nevertheless she complained that she had not been given the opportunity to demonstrate her ability to care for her son. She sought an assessment under s38(6). The judge had concluded ‘I was left with the feeling of a superficial picture of how she functions and of a lady who simply does not understand the consequences of her impulsive and irresponsible behaviour and the way in which this impacts upon the welfare of the children. I accept the evidence which clearly demonstrates that D would be at risk of harm to his development if he were cared for by his mother.’
Held: There was no evidence of any harm having come to her son. However her personality difficulties demonstrated a substantial risk. The mother was well intentioned but impulsive. The judge’s conclusion was supported by the evidence, and would not be set aside.

Citations:

[2005] EWCA Civ 961

Links:

Bailii

Statutes:

Children Act 1989 38(6)

Jurisdiction:

England and Wales

Citing:

Cited – In re J (a Minor) (Abduction: Custody rights) HL 1-Jul-1990
On 21 March 1990 the mother removed the child, aged two, from Australia, where he had been habitually resident, to England with the intention of permanently residing here. She did so without the knowledge of the father who also resided in Australia . .
Lists of cited by and citing cases may be incomplete.

Children, Adoption

Updated: 07 July 2022; Ref: scu.229088

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.
Held: The protection given by the order against identification of the child did not continue beyond the end of the proceedings unless the effect was required under the 1960 Act. The interests of the children remained paramount, but had to be balanced against the need for open justice. That did not mean that the identity of a child need always be protected.

Judges:

Potter P, Lady Justice Arden DBE Lord Justice Wall

Citations:

[2006] EWCA Civ 878, Times 04-Jul-2006, [2006] 3 WLR 599, [2006] Fam 83

Links:

Bailii

Statutes:

Children Act 1989 97, Administration of Justice Act 1970 12, European Convention on Human Rights 8 10

Jurisdiction:

England and Wales

Citing:

Cited – Oneryildiz v Turkey ECHR 30-Nov-2004
(Grand Chamber) The applicant had lived with his family in a slum bordering on a municipal household refuse tip. A methane explosion at the tip resulted in a landslide which engulfed the applicant’s house killing his close relatives.
Held: 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 – 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 – 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 . .
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 by:

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 – British Broadcasting Corporation v CAFCASS Legal and others FD 30-Mar-2007
Parents of a child had resisted care proceedings, and now wished the BBC to be able to make a TV programme about their case. They applied to the court for the judgment to be released. Applications were also made to have a police officer’s and . .
Cited – Doctor A and Others v Ward and Another FD 8-Jan-2010
Parents wished to publicise the way care proceedings had been handled, naming the doctors, social workers and experts some of whom had been criticised. Their names had been shown as initials so far, and interim contra mundum orders had been made . .
Cited – TSE and ELP v News Group Newspapers Ltd QBD 23-May-2011
The claimants had obtained an injunction preventing publication of details of their private lives and against being publicly named. The newspaper had not attempted to raise any public interest defence. Various publications had taken place to breach . .
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 . .
Lists of cited by and citing cases may be incomplete.

Children, Human Rights, Media

Updated: 07 July 2022; Ref: scu.242896

A and Another, Re Application for Judicial Review: CANI 3 May 2006

Appeal against a decision of Gillen J dismissing the judicial review challenge of the appellants to a decision of a Health and Social Services trust to place two of the appellants’ children with their uncle and aunt.

Judges:

Kerr LCJ, Campbell LJ and Sheil LJ

Citations:

[2006] NICA 18

Links:

Bailii

Jurisdiction:

Northern Ireland

Children

Updated: 06 July 2022; Ref: scu.241413

Re H (a Child): 12 Dec 2002

The authority, having taken the mother three older children took an interim care order within ten days of the birth of the fourth. Both parents went into a residential assessment unit with the baby, and on progress being made, proposed rehabilitation in the community. On one occasion the mother left the unit overnight, complaining of her despair at the father’s behaviour. The authority then sought the baby’s removal. Intensive support was recommended by the psychiatrist, but this was unavailable locally.
Held: The authority’s response had been disproportionate. There had been a basic failure to provide for the mother’s needs. The parents’ improvement in the unit outweighed the scant evidence of risk through continuation of the assessment.

Citations:

(2002) LTL

Statutes:

Children Act 1989 38(6)

Jurisdiction:

England and Wales

Children

Updated: 06 July 2022; Ref: scu.228169

Vigreux v Michel and Another: CA 18 May 2006

The mother sought the return of her children to France. Her summons had been dismissed after balancing the policy of the Convention against the strength of the child’s objection to return together with certain welfare considerations. The discretionary balance was weighted against the making of a return order.
Held: The appeal succeeded. The welfare considerations to which the Judge had given weight, including issues as to the disruption of the child’s life and education, were powerfully outweighed by ‘the policy of The Hague Convention, buttressed by the provisions of Brussels II Revised’.
Thorpe LJ asked if insufficient weight was given to to the French court process, which was fully seized to settle the child’s future. Had Brussels II Revised ‘raised the bar’ against the abductor to a level higher than was implicit in Zaffino? The father argued that, while Article 11 of Brussels II Revised informed the operation of The Hague Convention within the EU, the emphasis of protective measures in Article 11 related to a defence under article 13(b) of the Convention and nothing in the Regulation expressly applied to a defence of child’s objections. The position remained as in Zaffino.
Thorpe LJ set out the interrelationship of The Hague Convention and the Regulation and referred to the provisions for the Enforceability of Judgments contained in Articles 40 and 42, and to Article 60 which provides for the Regulation to take precedence over the Convention so far as any conflict is concerned and the welfare considerations underlying the Judge’s decision for non-return. They were the sort of considerations that Article 11(3) which provides for expeditious disposal of Convention applications, was designed to eliminate. One principal matter had founded the child’s objection and affected the Judge’s view, namely the child’s fear that he would not receive a fair hearing in France. This was given undue weight. ‘Therefore, in my view, this was not a case in which peripheral welfare considerations could be introduced into the discretionary conclusion. On the application for return the Judge had to weigh only the nature and strengths of PM’s objection against the policy of Brussels 2 Revised and the fact that the essential welfare investigations and decisions must be taken in France.’
On the submission of counsel for the husband that the provisions of the Regulation ‘raised the bar’ against an abductor above that set in relation to Hague Convention proceedings as stated in Zaffino. ‘Is my conclusion to be taken as an acceptance of Mr Scott-Manderson’s primary submission and therefore a conclusion of general application? I do not so intend, since I accept the submission of the respondents that Brussels 2 Revised is not to be taken to have achieved implicitly more than it has expressed. However, there can be little doubt as to the intention of the member states that opted for Brussels 2 Revised. The provisions relating to the return of abducted children were the most contentious and therefore the most difficult of resolution during the negotiation of Brussels 2 Revised. The resolution of the resulting impasse was the retention of the operation of The Hague Convention throughout the European region but with the fortification of what were seen, in the light of nearly 20 years of operation, as weaknesses or loopholes through which abductors were escaping. The fortifications were threefold: The emphasis on protective measures to nullify an Art 13(b) of The Hague Convention defence; The return of the case to the requesting state in the event of a refusal by the requested state; and automatic enforcement of return ordered throughout the region. The policy that underlies these provisions is clear and it is important that states bound by Brussels 2 Revised do not undermine its intended effect either in its interpretation or in its application in accordance with the stringent time limits stipulated.’
Wall LJ said that Zaffino was a restatement of well established principles and reaffirmed his observations in that case. Under the heading ‘The Brussels 2 Revised Dimension’: ‘I think there is some force in Mr Scott-Manderson’s first ground of appeal, namely that the Judge failed to give sufficient weight as to what he described as the ‘European factors’ deriving from the application of Brussels 2 Revised. It is of course true . . that for present purposes, while Art. 60 of Brussels 2 Revised gives it precedence over the Hague Convention, the only specific provision of Art. 11 which affects the implementation of Art. 13 of The Hague Convention (apart from the need, identified in Art. 11(3) for the proceedings to be concluded within 6 weeks) is Art. 11(4) which relates specifically only to a defence under Art. 13(b), which this is not. Mr Scott-Manderson was thus unable to derive direct support from Brussels 2 Revised in his efforts to rely on the protective measures available to PM in France.
Nonetheless, when the Court is considering the policy of The Hague Convention, I do not think it can shut its eyes to the fact that pursuant to Art. 11(8) the French court, in the event of an order for the non-return of PM, can subsequently require his return; and if it does so, the English authorities have no alternative but to comply.
I am, of course, far from saying that in a case to which Brussels 2 Revised applies, no child’s Art. 13 defence will ever, or should ever succeed. That this is manifestly not the case is clear from the terms of Art. 11(8) itself, which plainly envisages non-return orders being made. Nonetheless, in my judgment, when one is considering the policy of The Hague Convention in a case where there are active proceeding pending in the court of the child’s habitual residence, and where that court is plainly seized of all determinative welfare considerations, Art. 11(8) seems to me, at its lowest, a reinforcement of the policy of The Hague Convention, and thus falls to be considered in the exercise of discretion.’

Judges:

Lord Justice Thorpe Lord Justice Wall

Citations:

[2006] EWCA Civ 630, [2006] 2 FLR 1180

Links:

Bailii

Statutes:

Child Abduction and Custody Act 1985

Jurisdiction:

England and Wales

Citing:

Confirmed – Zaffino v Zaffino 2006
The court considered the treatment of a child’s objections to being returned to a home country by an order under the Act. . .

Cited by:

Cited – AF v M B-F FD 22-Feb-2008
The father sought the return of the two children to Poland after they had been brought to England by the mother. She said that she had come to seek work as a dentist, and had been unable to support the family in Poland. She said that her Polish . .
Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 06 July 2022; Ref: scu.241770

NJ v Essex County Council and Another; In re J (Care: Assessment: Fair Trial); Re J (a child) (care proceedings: fair trial): CA 11 May 2006

The family complained that the local authority had, in assessing the need for a care order, failed to follow the guideliens set down in In Re L, leading to an infringement of their human rights.
Held: Neither in the lower court nor here had the case of In re V been cited. It should have been and would have demonstrated that although minor breaches of the guidance should be rooted out, that did not mean that a minor breach was an infringement of the parent’s human rights.

Judges:

Mr Justice Wilson, Mr Justice Bennett Lord Justice Richards

Citations:

Times 21-Jun-2006, [2006] EWCA Civ 545, [2006] 2 FCR 107

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Re M (Care: Challenging Decisions by Local Authority) FD 2001
Local authorities involved in care proceedings will infringe the rights of parents and other individual parties to them under both Article 6 and Article 8 of the Convention unless they conduct themselves with integrity, transparency and . .
Cited – In re L (Care: Assessment: Fair Trial) FD 2002
The court set out precepts to be followed by courts in preparing for care proceedings so as to ensure that they did not infringe the rights of the family to respect for their family life under article 8.
Munby J said: ‘ . . it must never be . .
Cited – In re V (a Child) (Care: pre-birth actions) CA 12-Oct-2004
Immediately after a child was born, the social worker began proceedings for it to be taken into care. The judge severely criticised the actions of the social worker before the birth. The local authority now appealed against an order at the . .

Cited by:

Cited – Barracks v Coles and Commissioner of Police for the Metropolis CA 21-Jul-2006
The claimant sought to allege race discrimination and appealed refusal by the respondents to release required documents. She had been turned down for an appointment to the Trident task force, and sought disclosure of the reasons. The respondent said . .
Cited – Cheshire County Council and others v DS (Father) and others CA 15-Mar-2007
The court granted an appeal in care proceedings, but examined the relationship between the court and local authorities. There had been a late change in the proposed care plan and an application by grandparents to be made party. Some in the . .
Lists of cited by and citing cases may be incomplete.

Children, Litigation Practice

Updated: 06 July 2022; Ref: scu.241649

Re G: 2003

The mother was addicted to drugs. Whilst the grandmother was in hospital, the authority referred G’s case because of concerns at G’s development. An order freeing her for adoption was made. The grandmother sought an assessment under s38.
Held: The grandmother’s appeal failed. Her arguments presumed that she would have been the primary carer not the mother. The judge’s order was properly based on the evidence before her.

Citations:

[2003] EWHC 1711 FD

Statutes:

Children Act 1989 38(6)

Jurisdiction:

England and Wales

Children

Updated: 06 July 2022; Ref: scu.228170

Ex Parte Pye: 1811

A person acting in loco parentis is ‘in the situation of the person described as the lawful father of the child’

Judges:

Lord Eldon

Citations:

(1811) 18 Ves p 154

Jurisdiction:

England and Wales

Cited by:

Cited – In Re the Estate of Marjorie Langdon Cameron (Deceased); Peter David Phillips v Donald Cameron and Others ChD 24-Mar-1999
One of the testatrix’s children was thought to be profligate, and had failed to maintain his own son. Acting under an enduring power of attorney, the testatrix’s attorneys made a substantial gift in establishing an educational trust for that son’s . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 06 July 2022; Ref: scu.194476

Re B (Psychiatric Therapy for Parents): 1999

On the birth of their fourth child, the three older children having removed and adopted, the authority obtained psychiatric reports for the parents and applied for a further care order. One report offered treatment over two years, the other doubted whether rehabilitation was possible. The Guardian’s expert’s report suggest possible treament leading to rehabilitiation within 12 weeks. After further discussion, the court, finding that 38(6) gave it jusridiction, ordered the authority to accept the guardian’s programme. The authority appealed.
Held: The appeal succeeded. An assessment necessary for the courts function could be ordered. A programme which would in effect be treatment of the family could not. This case fell into that category, and the judge had not adequately considered the alternatives. The court noted that orders going against the authority’s clear views should be exceptional.

Citations:

[1999] 1 FLR 701

Statutes:

Children Act 1989 38

Jurisdiction:

England and Wales

Children

Updated: 06 July 2022; Ref: scu.228029

Representation of Children in Family Proceedings pursuant to FPR 1991 rule 9.5: 5 Apr 2004

Guidance was given including the following: ‘A litigant in person wishing to have the help of a McKenzie Friend should be allowed to do so unless the judge is satisfied that fairness and the interests of justice do not so require. The presumption in favour of permitting a McKenzie Friend is a strong one . . The court may refuse to allow a McKenzie Friend to act or continue to act in that capacity where the judge forms the view that the assistance he has given, or may give, impedes the efficient administration of justice. However, the court should also consider whether a firm an unequivocal warning to the litigant and / or the McKenzie Friend might suffice in the first instance. ‘

Citations:

[2004] 1 FLR 1188

Statutes:

Family Proceedings Rules 1991 9.5

Jurisdiction:

England and Wales

Cited by:

Cited – O and others (Children); In re O (Children), In re W-R (a Child), In re W (Children) CA 22-Jun-2005
In each case litigants in person had sought to be allowed to have the assistance and services of a Mackenzie friend in children cases. In one case, the court had not allowed confidential documents to be disclosed to the friend.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 06 July 2022; Ref: scu.227946

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 the considerations from the 1989 Act and had ignored the close relationship between the children and their natural mother. The children were CGH’s children by virtue of the 1990 Act.
Held: CG’s representations failed. The dispute here was between two biological parents, and the earlier case law did not apply directly: ‘we have moved into a world where norms that seemed safe twenty or more years ago no longer run. ‘ The natural mother did not in such a situation have any presumed priority.
Hallett LJ: ‘I am very concerned at the prospect of removing these children from the primary care of their only identifiable biological parent who has been their primary carer for most of their young lives and in whose care they appear to be happy and thriving. She is both a biological parent and a ‘psychological’ parent. Mindful as I am of the changing social and legal climate, on the facts of this case, I would attach greater significance perhaps than some to the biological link between the appellant and her children.’

Judges:

Lord Justice Thorpe Lord Justice Laws Lady Justice Hallett

Citations:

[2006] EWCA Civ 372

Links:

Bailii

Statutes:

Children Act 1989 1(3), Human Fertilisation and Embryology Act 1990 27(1)

Jurisdiction:

England and Wales

Citing:

Cited – J v C (An Infant) HL 19-Feb-1969
The House sought to construe the meaning of the words ‘shall regard the welfare of the infant as the first and paramount consideration’. Lord MacDermott said: ‘it seems to me that they must mean more than that the child’s welfare is to be treated as . .
See Also – In re G (Children) (Shared Residence: Same Sex partner) CA 6-Apr-2005
A lesbian couple had children by IVF. After the relationship failed, application was made by the non-resident partner for a shared residence order. She appealed a refusal.
Held: the judge had erred. The report from Cafcass had recommended the . .
Cited – In Re KD (A Minor) (Ward: Termination of Access) HL 1988
The local authority sought to terminate parental contact with a child taken into care under a wardship.
Held: The court had to consider the human rights of the parent as against the welfare interest of the child. Lord Oliver of Aylmerton said: . .
Cited – In Re D (A Minor) (Residence: Natural Parent) FD 17-Jun-1999
Where contested residence proceedings were bewteen natural, and other potential families, the presumption in favour of the natural parents was such as to require the court not to conduct the balancing exercise. The existence of grounds for concern . .
Cited – In Re W (A Minor) CA 23-Mar-1993
It was right that public should know of the high cost of family litigation. . .
Cited – Re P (A Minor)(Custody) 1983
. .
Cited – 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 . .
Cited – Re B and A and C and D (Contact and Parental Responsibility: Lesbian Mothers and Known Father) No 2 FD 12-Jan-2006
In deciding whether or not to make a parental responsibility order in favour of the child’s father Black J said: – ‘Perhaps most importantly of all, I am considerably influenced by the reality that Mr B is D’s father. Whatever new designs human . .
Cited – Re H CA 2002
Thorpe LJ said: ‘in weighing the rival claims of the biological parent over the psychological parent, the court must arrive at its choice on the application of the welfare test, the paramountcy test contained in s 1, having particular regard to the . .
Cited – C v C (A Minor) (Custody: Appeal) 1991
. .
Cited – Re K 1991
The natural bond and relationship between parent and child gives rise to universally recognized norms which ought not to be gratuitously interfered with and which, if interfered with at all, ought to be so only if the welfare of the child dictates . .

Cited by:

Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 05 July 2022; Ref: scu.240097

M, Regina (on the Application of) v Gateshead Council: CA 14 Mar 2006

The applicant had left care, but still received assistance. She was arrested and the police asked the attending social worker to arrange secure accommodation overnight. The respondent refused. The court was asked what duty (if any) is owed by local authorities to provide ‘secure accommodation’ for arrested juveniles whom they are requested to receive under the section.
Held: The application raised a point of some importance, though its significance had passed for the claimant. The authority to whom the request was made was under a duty to provide accommodation irrespective of whether in fact the child resided within their area.
The court considered whether the duty was owed to any child within the district, or only for children ordinarily resident within the area. The court noted that the Act made a clear distinction. In some sections, duties were owed to children within the area, and in others that qualification was absent.
Dyson LJ said: ‘The broad policy and objects of Part III of the Children Act 1989 are that local authorities should provide support for children and families.’

Judges:

Thorpe, Dyson, Moore-Bick LJJ

Citations:

[2006] EWCA Civ 221, Times 27-Apr-2006, [2006] 3 WLR 108, [2006] Fam Law 444, [2006] QB 650, [2007] 1 All ER 1262, (2006) 9 CCL Rep 337, [2006] 2 FLR 379

Links:

Bailii

Statutes:

Police and Criminal Evidence Act 1984 38(6), Children Act 1989 21 25(1)

Jurisdiction:

England and Wales

Citing:

Cited – Padfield v Minister of Agriculture, Fisheries and Food HL 14-Feb-1968
Exercise of Ministerial Discretion
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when . .
Cited – Regina v London Borough of Barnet ex parte G; Regina v London Borough of Lambeth ex parte W; Regina v London Borough of Lambeth ex parte A HL 23-Oct-2003
The applicants sought to oblige the local authority, in compliance with its duties under the 1989 Act, to provide a home for children, and where necessary an accompanying adult.
Held: There were four hurdles for the applicants to cross. They . .
Cited – Regina v Barnet London Borough Council, Ex parte Shah HL 16-Dec-1982
The five applicants had lived in the UK for at least three years while attending school or college. All five were subject to immigration control, four had entered as students with limited leave to remain for the duration of their studies, and the . .
Cited – Regina (on the application of K) v Camden and Islington Health Authority CA 21-Feb-2001
The duty of a local authority to seek to provide resources to care for a mental patient after release into the community, is not absolute, and is subject to the limitations of the availability of a sufficient budget. A continued detention in . .

Cited by:

Cited – M and Another, Regina (on the Application of) v London Borough of Lambeth and others Admn 20-Jun-2008
The claimant had arrived from Afhganistan and sought asylum and accomodation as a child. The social worker involved assessed him to be an adult.
Held: The decision was within the duties of the local authorities. . .
Cited – A, Regina (on the Application of) v London Borough of Croydon CA 18-Dec-2008
The court declined appeals against findings that local authorities through social workers could properly assess whether the claimants were under eighteen and entitled, though asylum seekers, to housing provision and support under the 1989 Act. . .
Cited – MM, Regina (on the Application of) v London Borough of Lewisham Admn 6-Mar-2009
The court considered the extent of an Authority’s duties when a young woman (17) came to its attention under section 17 of the 1989 Act. The claimant was fleeing the domestic violence of her partner. The authority had said that she should seek help . .
Cited – VC and Others, Regina (on The Application of) v Newcastle City Council Admn 24-Oct-2011
. .
Lists of cited by and citing cases may be incomplete.

Local Government, Children

Updated: 05 July 2022; Ref: scu.239111

Re J-S (Children): CA 24 May 2019

The court considered the appropriate practice on a first instance judge giving permission to appeal under the ‘compelling reason’ limb. In most cases, that assessment is best left to the appellate court. Particular care should be exercised when the issue is likely to be academic.

Judges:

Peter Jackson, Baker LJJ

Citations:

[2019] EWCA Civ 894, [2019] WLR(D) 312

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Children

Updated: 05 July 2022; Ref: scu.637977

In re I (Children): CA 24 May 2019

The court considered the approach to be taken where a court having sent to the parties a draft judgment, he received from counsel a request for clarification of a paragraph in it.

Judges:

Bean, King, Singh LJJ

Citations:

[2019] EWCA Civ 898, [2019] WLR(D) 311

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Children, Litigation Practice

Updated: 05 July 2022; Ref: scu.637975

A Local Authority v A Mother and Others: CA 9 May 2019

Appeal by a local authority against one finding (amongst others, not subject to appeal) in care proceedings concerning a baby girl, as to the judge’s conclusion that four rib fractures suffered by A were sustained as a result of overlaying whilst co-sleeping with her mother.

Citations:

[2019] EWCA Civ 799

Links:

Bailii

Jurisdiction:

England and Wales

Children

Updated: 05 July 2022; Ref: scu.637314

John Hamilton, of Pumpherston, Esq v Katherine Lady Cardross: HL 8 Apr 1712

A tack sustained, which, in the recital, bore to be granted by a Minor with consent of his Curators, but was signed by the landlord only.
Homologation. – In a reduction of a Tack on the ground of nullity, it being found that the receipt of the rent by the Grantor’s heir for more than 30 years, imported no homologation, the Judgment is reversed.

Citations:

[1712] UKHL Robertson – 37, (1712) Robertson 37

Links:

Bailii

Jurisdiction:

Scotland

Children

Updated: 04 July 2022; Ref: scu.553458

G, Re Application for Judicial Review: CA 11 Apr 2001

This appeal gives rise to important questions about the obligations of a local authority under the Children Act 1989 to provide accommodation and financial support for a child in need in its area when the mother herself is not entitled to housing for the homeless under the Housing Act 1996 nor to housing benefit nor to income support.

Citations:

[2001] EWCA Civ 540, [2001] Fam Law 662, (2001) 4 CCL Rep 128, [2001] 2 FCR 193, (2001) 33 HLR 59, [2002] BLGR 34, [2001] 2 FLR 877

Links:

Bailii

Jurisdiction:

England and Wales

Children, Local Government

Updated: 04 July 2022; Ref: scu.445629

A and D v B and E: FD 13 Jun 2003

In two separate actions, fathers with parental responsibility sought orders requiring the mothers of their children to ensure they received the MMR vaccine. Each mother objected, having suspicions as to the safety of the treatment. Specific issue orders were sought.
Held: The court found the evidence given by the expert for the mother’s unconvincing. There was no evidence of a medical reason for the children not to be immunised. Though part 35 of the Civil Procedure Rules did not apply directly in family proceedings, experts should follow the principles laid down. The interests of the child were paramount, and the decision made according to their best interests. immunisation is in these children’s best interests. Article 8 of the European Convention on Human Rights giving respect to private and family life is considered. There is an exception permitting the interference by the court for the protection of health.

Judges:

The Honourable Mr Justice Sumner

Citations:

[2003] EWHC 1376 (Fam)

Links:

Bailii

Statutes:

Children Act 1989 1 8, Civil Procedure Rules P35

Jurisdiction:

England and Wales

Citing:

Cited – Re R (A Minor) (Expert’s Evidence) FD 1991
The court gave guidance on the principles to be followed by experts providing evidence in children cases. . .
Cited – In Re AB (A Minor) (Medical Issues: Expert Evidence) FD 17-Aug-1994
An expert witness in child abuse cases was to explain all aspects of any controversial theory. . .
Cited – S v McC; W v W HL 1972
The distinction between the court’s ‘custodial’ and ‘protective’ jurisdictions was recognised. The case concerned the ordering of blood tests with a view to determining the paternity of a child involved in divorce proceedings. This was not a matter . .
Cited – In Re T (A Minor) (Wardship: Medical Treatment) CA 24-Oct-1996
A baby boy who was 18 months old, suffered from a life-threatening liver defect. His parents were health-care professionals experienced in the care of sick children. The unanimous medical view was that as soon as donor liver became available the . .
Cited – In Re C (A Child) (HIV Test) FD 14-Sep-1999
The parents of a baby born to a HIV positive mother were strongly opposed to the testing of the child for HIV and to any form of medical intervention.
Held: There is a presumption that the united view of the parents of a child as to the . .
Cited – Re: L (Contact: Genuine Fear) FD 2002
The Court had to consider a mother’s total opposition to any contact between a child and his father. It was compelled to reach a decision with reluctance that the mother’s phobic disorder, not based on rational thinking, nevertheless was of such . .
Lists of cited by and citing cases may be incomplete.

Children, Health, Civil Procedure Rules

Updated: 04 July 2022; Ref: scu.185473

Regina (A) v Lambeth London Borough Council: CA 5 Nov 2001

The provisions requiring local authorities to look to the welfare of children within their area was a general one, and was not enforceable to secure the interests of individual children. It was not the case that a ‘target’ duty crystallised into an enforceable one, once a child’s needs had been assessed. If that had been the intention, parliament would have had to have expressed such a process in the Act.

Judges:

Lord Justice Chadwick, Lord Justice Laws and Sir Philip Otton

Citations:

Times 20-Nov-2001, [2001] EWCA Civ 1624, (2001) 4 CCL Rep 486, [2002] Fam Law 179, [2001] 3 FCR 673, [2002] BLGR 163, [2002] HLR 13, (2002) 64 BMLR 88, [2002] 1 FLR 353, [2002] ACD 18

Links:

Bailii

Statutes:

Children Act 1989 17(1), Housing Act 1996 176 189(1)

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina (A) v Lambeth London Borough Council QBD 25-May-2001
The duty imposed by section 17 of the Act on local authorities to safeguard and promote the welfare of children is a general duty only, and is not capable of being enforced for the benefit of a particular child by way of judicial review. As a so . .

Cited by:

Applied – Regina (on the Application of J) v London Borough of Enfield and Another Admn 4-Mar-2002
The mother and child were destitute, and sought to oblige the local authority to provide accommodation and support.
Held: The duty to a child under the section could not be extended to include a duty to accommodate and support the child and . .
Cited – Regina (W) v Lambeth London Borough Council CA 3-May-2002
A family had been found to be voluntarily homeless. The family asked the authority to provide housing to the family under the 1989 Act from its duty to care for the children.
Held: The 1989 Act did not change the law in the 1980 Act. The . .
Appealed to – Regina (A) v Lambeth London Borough Council QBD 25-May-2001
The duty imposed by section 17 of the Act on local authorities to safeguard and promote the welfare of children is a general duty only, and is not capable of being enforced for the benefit of a particular child by way of judicial review. As a so . .
Lists of cited by and citing cases may be incomplete.

Housing, Children

Updated: 04 July 2022; Ref: scu.166833

In re B (Interim care order: Directions): CA 14 Jan 2002

The local authority applied for an interim care order immediately the child, B, was born. A proposal was made for the mother and child to move from the maternity hospital to a residential placement a mother and baby home which provided help in improving parents’ child care skills. The local authority was not prepared to agree to this placement and the judge did not give a section 38(6) direction.
Held: The section under the 1989 Act was designed to allow the court to obtain such information as it thought proper to help it make a decision on an application for a care order. The section gave the court a wide discretion. The court had the power to make the order requested, and that was the appropriate order. As to the proposed programme at Beacon Lodge, Thorpe LJ said: ‘one objective is to prepare women residents for independent motherhood by a process of advice, instruction and education. The assessment is ongoing and subject to continual review. Throughout assessment the mother will be made aware of areas of concern through regular key worker sessions in addition to normal contact with staff. The assessment focuses on the parents’ ability to learn and develop adequate skills and, where appropriate, independent living skills would be taught. Whilst the main focus of the work is the child, it is recognised that it is frequently the needs of the mother which must be addressed in order to meet the needs of the child.’ Buxton LJ said the court was given ‘a very broad and generous power of determination in deciding what is appropriate and what is not appropriate in respect of the assessment of the child in the interim period.’

Judges:

Lord Justice Thorpe and Lord Justice Buxton

Citations:

Times 29-Jan-2002, Gazette 06-Mar-2002, [2002] 1 FLR 545, [2002] EWCA Civ 25, [2002] 1 FLR 642, [2002] Fam Law 252, [2002] 2 FCR 367, [2002] 1 FLR 545

Links:

Bailii

Statutes:

Children Act 1989 38(6)

Jurisdiction:

England and Wales

Cited by:

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

Children

Updated: 04 July 2022; Ref: scu.167483

In re W-C-T (Children): CA 4 Apr 2019

Appeal from a finding of fact in care proceedings brought by the local authority in relation to four children and an application issued at an earlier point by the father of the eldest three for contact with them.

Citations:

[2019] EWCA Civ 845

Links:

Bailii

Jurisdiction:

England and Wales

Children

Updated: 04 July 2022; Ref: scu.637312

In re H (A Child) (Contact: Domestic Violence), Ali v Hussain (Guidelines Re Allegations of Domestic Violence Appended): CA 22 Nov 2005

The mother appealed against an order granting contact to the father. There had been allegations of domestic violence.
Held: The family courts had been subject to much criticism. It was important where there was some evidence of poor practice in the conduct of the case that courts and practitioners should be reminded of the standards for such cases laid down. The court appended to the judgment guidelines for good practice.

Judges:

Thorpe LJ, Dyson LJ, Wall LJ

Citations:

[2005] EWCA Civ 1404, Times 28-Dec-2005, [2006] Fam Law 439, [2006] 1 FCR 102, [2006] 1 FLR 943

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – In Re L (A Child) (Contact: Domestic Violence); In Re V (A Child) (Contact: Domestic Violence); In Re M (A Child) (Contact: Domestic Violence); In Re H (A Child) (Contact: Domestic Violence); In re L, V, M and H (Children) CA 21-Jun-2000
When considering contact applications after domestic violence, the approach should be child centred, and according to the criteria in the Act. The circumstances of the violence should be looked into, and the potentially damaging effect of contact . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 04 July 2022; Ref: scu.235217

GW and Another v Oldham Metropolitan Borough Council and Another: CA 31 Oct 2005

The mother appealed a refusal to allow her separate expert evidence in resisting an application for a care order.
Held: Though the issue was settled by consent, the court ventured an opinion. Where a care case alleged non-accidental injuries to a child the expert evidence might be so pivotal that it could be proper to order the appointment of separate experts for the parties.

Judges:

Wall LJ

Citations:

Times 07-Nov-2005, [2005] EWCA Civ 1247

Links:

Bailii

Jurisdiction:

England and Wales

Children

Updated: 04 July 2022; Ref: scu.231659

Langley and others v Liverpool City Council and others: CA 11 Oct 2005

Families had challenged the removal of their children into the care of foster parents by the respondents. The family father, who was blind, had taken to driving. The respondents appealed findings that they had acted unlawfully and in breach of the human rights of the families. There had been an Emergency protection Order, but the children had been removed by th epolice officer without a warrant under section 48(9).
Held: There was nothing in the Act to require a warrant. The argument on surplusage (that section 48(9) would otherwise serve no purpose) failed because the section was intended to address a particular need to have authorised entry to premises.
The police officer had however acted outside his powers in purporting to execute the Emergency Protection order. It was not for him to do so. The appeal by the local authority succeeded, but not that of the police constable, though no personal blame attached to the officer.
Dyson LJ explained the differences between the powers under sections 44 and 46: ‘In my judgment, the statutory scheme clearly accords primacy to section 44. Removal under section 44 is sanctioned by the court and it involves a more elaborate, sophisticated and complete process than removal under section 46. The primacy accorded to section 44 is further reinforced by section 46(7) and 47(3)(c). The significance of these provisions is that they show that it was contemplated by Parliament that an EPO may well not be in force when a removal is effected under section 46, and that removal under section 46 is but the first step in a process which may later include an application for an EPO . . I would therefore, hold that (i) removal of children should usually be effected pursuant to an EPO, and (ii) section 46 should be invoked only where it is not practicable to execute an EPO. In deciding whether it is practicable to execute an EPO, the police must always have regards to the paramount need to protect children from significant harm.’

Judges:

Thorpe, Dyson, Lloyd LJJ

Citations:

[2005] EWCA Civ 1173, Times 19-Oct-2005, [2006] 1 FLR 342, [2006] 1 WLR 375

Links:

Bailii

Statutes:

Children Act 1989 44 46 48(9)

Jurisdiction:

England and Wales

Citing:

Cited – Padfield v Minister of Agriculture, Fisheries and Food HL 14-Feb-1968
Exercise of Ministerial Discretion
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when . .
Cited – Wainwright and another v Home Office HL 16-Oct-2003
The claimant and her son sought to visit her other son in Leeds Prison. He was suspected of involvement in drugs, and therefore she was subjected to strip searches. There was no statutory support for the search. The son’s penis had been touched . .
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Cited – Regina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
Cited – Venema v The Netherlands ECHR 17-Dec-2002
A young child aged 11 months was separated from her mother because of fears that the mother was suffering from Munchausen syndrome by proxy and would injure her. The child was returned five months later, following medical reports which found that . .
Cited – X Council v B (Emergency Protection Orders) FD 16-Aug-2004
Munby J reviewed the grant of Emergency Protection Orders, and summarised the applicable law: ‘The matters I have just been considering are so important that it may be convenient if I here summarise the most important points:
(i) An EPO, . .

Cited by:

Cited – A v East Sussex County Council and Chief Constable of Sussex Police CA 2-Jul-2010
A appealed against the dismissal of her claim for damages under the 1998 Act after the defendants had taken action anticipating possible abuse of her baby child. The baby had been returned after the suspicions were allayed. She complained that the . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Cited – Kambadzi (previously referred to as SK (Zimbabwe)) v Secretary of State for The Home Department SC 25-May-2011
False Imprisonment Damages / Immigration Detention
The respondent had held the claimant in custody, but had failed to follow its own procedures. The claimant appealed against the rejection of his claim of false imprisonment. He had overstayed his immigration leave, and after convictions had served a . .
Lists of cited by and citing cases may be incomplete.

Children, Police, Human Rights

Updated: 04 July 2022; Ref: scu.231044

Bond v Leicester City Council: CA 23 Oct 2001

The applicant had been the victim of domestic violence. She applied to be rehoused, but the authority considered her to be intentionally homeless, since she could have applied to court for an injunction excluding the violent partner.
Held: That approach was incorrect. Although remedies might be available, these could be uncertain, and difficult for some people to achieve, and particularly so where there were children, and the courts would otherwise encourage attempts by the parties to avoid bitterness so as to encourage contact. There is still no presumption that contact with a violent parent was wrong.

Judges:

Lady Justice Hale and Mr Justice David Steel

Citations:

Times 23-Nov-2001, Gazette 06-Dec-2001, [2001] EWCA Civ 1544, [2002] 1 FCR 566, [2002] HLR 6

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Yemshaw v London Borough of Hounslow SC 26-Jan-2011
The appellant sought housing after leaving her home to escape domestic violence. The violence was short of physical violence, and the authority had denied a duty to rehouse her. She said that the term ‘domestic violence’ in the Act was not intended . .
Lists of cited by and citing cases may be incomplete.

Children, Housing, Family

Updated: 03 July 2022; Ref: scu.166859

Essex County Council v X and Y and A and B (By Their Guardian Ad Litem, Ms Kennet): FD 8 Aug 2005

Care orders had been made and the care plans looked to adoption. Once the children had been placed with foster parents, contact was withheld. The parents appealed.
Held: The judge had recognised that the proper place for children with their parents, and had made the decision only after careful thought. There had been considerable publicity adverse to the authority’s actions. However: ‘The tragedy in this case, so it seems to me, is that the parents are unable, even when the most concentrated and intensive support is deployed to assist them, to adequately manage the day to day care of their children. Neither is blameworthy. But each has limitations which cannot be set to one side when considering the children’s needs. There is a naivety and innocence about them, the mother in particular, which I found disarming. But she was quite unable to focus her answers for the most part upon the question she had been asked, concentrating as she did upon the issues which bothered her most. The father found it impossible to provide an answer to the question as to how he would feel if he gave up work. ‘ The parents’ decision to withhold consent to adoption was in the circumstances unreasonable, and heir consent would be dispensed with: ‘the welfare of the children demands that they be placed for adoption as soon as possible. A reasonable parent would recognise that his / her child’s welfare was the decisive factor in the equation and would put to one side self interest and desire.’

Judges:

The Honourable Mrs Justice Pauffley

Citations:

[2005] EWHC B16 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Adoption, Children

Updated: 01 July 2022; Ref: scu.229276

Hunter v Murrow (Abduction: Rights of Custody): CA 28 Jul 2005

Rights of access can in themselves amount to ‘rights of custody’ for the Convention. Dyson LJ divided the question of whether the father had rights of custody into two. The first, which he called ‘the domestic law question’, was what rights the father had in national law. The second, which he called ‘the Convention question’, was whether those rights were to be characterised as rights of custody for the purposes of the Convention.

Judges:

Lord Justice Thorpe Lord Justice Dyson Lord Justice Lloyd

Citations:

[2005] EWCA Civ 976, [2005] 2 FLR 1119

Links:

Bailii

Statutes:

Hague Convention on the Civil Aspects of International Child Abduction 1980

Jurisdiction:

England and Wales

Cited by:

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

Jurisdiction, Children

Updated: 01 July 2022; Ref: scu.229050

Brixey v Lynas: HL 2 Jul 1996

Delay after a hearing will increase the reluctance of an appellate court to interfere with the decision of a court on the evidence.

Citations:

1996 SLT 908, 1996 SC (HL) 1, [1996] UKHL 17

Links:

Bailii

Citing:

Appeal from – Brixey v Lynas 1994
‘However difficult it may be, the Court must as we have mentioned take a long term view in relation to the interests of a child. We agree with what is said in Wilkinson at page 212 (Wilkinson and Norrie: The Law Relating to Parent and Child in . .

Cited by:

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

Scotland, Children

Updated: 01 July 2022; Ref: scu.229104

McKee v McKee: PC 15 Mar 1951

(Canada) There was a choice open to the trial judge facing a contest for the custody of a child: ‘It is possible that a case might arise in which it appeared to a court, before which the question of custody of an infant came, that it was in the best interests of that infant that it should not look beyond the circumstances in which its jurisdiction was invoked and for that reason give effect to the foreign judgment without further inquiry. It is, however, the negation of the proposition . . that the infant’s welfare is the paramount consideration, to say that where the learned trial judge has in his discretion thought fit not to take the drastic course above indicated, but to examine all the circumstances and form an independent judgment, his decision ought for that reason to be overruled. Once it is conceded that the court of Ontario had jurisdiction to entertain the question of custody and that it need not blindly follow on order made by a foreign court, the consequence cannot be escaped that it must form an independent judgment on the question, although in doing so it will give proper weight to the foreign judgment. What is the proper weight will depend on the circumstances of each case.’

Judges:

Merriman, Simonds, Morton of Henryton, Radcliffe, Tucker LL

Citations:

[1951] AC 352, [1951] UKPC 9, [1951] 1 All ER 942, [1951] 1 TLR 755

Links:

Bailii

Citing:

Approved – Re B’s Settlement, B v B 1940
Morton J said: ‘I desire to say quite plainly that in my view this Court is bound in every case, without exception, to treat the welfare of its ward as being the first and paramount consideration, whatever orders may have been made by the Courts of . .

Cited by:

Cited – J v C (An Infant) HL 19-Feb-1969
The House sought to construe the meaning of the words ‘shall regard the welfare of the infant as the first and paramount consideration’. Lord MacDermott said: ‘it seems to me that they must mean more than that the child’s welfare is to be treated as . .
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 . .
Cited – Re KL (A Child) SC 4-Dec-2013
How should the courts of this country react when a child is brought here pursuant to an order made abroad in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction which is later over-turned on appeal? K was a . .
Lists of cited by and citing cases may be incomplete.

Children, Commonwealth

Updated: 01 July 2022; Ref: scu.228368