Category: Family

B v B: CA 16 Oct 2007

Application by the wife for permission to bring a second appeal in a matrimonial ancillary relief case. The suggested issue of principle is whether an order which aimed at broadly equal division of capital was one which could properly be made in this case.

Citations:

[2007] EWCA Civ 1101

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 24 July 2022; Ref: scu.341668

Moore v Moore: CA 18 Dec 2008

Application for leave to appeal to answer the question ‘whether a substantial maintenance pending suit order is enforceable against the husband in full when the wife withdraws the divorce proceedings in this jurisdiction which gave the maintenance pending suit order its foundation.’

Citations:

[2008] EWCA Civ 1599

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 24 July 2022; Ref: scu.341656

KC and Another v City of Westminster Social and Community Services Dept. and Another; Westminster City Council v C and others: CA 19 Mar 2008

A ‘marriage’ though valid under both Sharia law and the lex loci celebrationis despite the manifest incapacity of one of the parties was not, on grounds of public policy, entitled to recognition in English law.
The 2005 Act has not abolished the inherent jurisdiction, which continues to exist alongside the new jurisdiction

Judges:

Thorpe, Wall, Hallett LJJ

Citations:

[2008] EWCA Civ 198, [2008] 2 FLR 267, [2008] Fam Law 517, [2009] 2 WLR 185

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Johns and Another, Regina (on The Application of) v Derby City Council and Another Admn 28-Feb-2011
The claimants had acted as foster carers for several years, but challenged a potential decision to discontinue that when, as committed Christians, they refused to sign to agree to treat without differentiation any child brought to them who might be . .
Cited – N v ACCG and Others SC 22-Mar-2017
The local authority and a young man’s parents disputed his continued care, he having substantial incapacities. The parents wanted assistance caring for him on visits home. The LA declined to fund that support. The LA now argued that the CoP had not . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 24 July 2022; Ref: scu.266390

S v S: FD 19 Mar 2008

The husband appealed against an ancillary relief order, and particularly as to an order that he should continue to pay maintenance for the joint lives of the parties rater than for five years. He was earning a substantial income but anticipated that he might lose that income within a few years. The court had said that he should endeavour to continue for two to three years before leaving his position, and should then re-apply as necessary.
Held: It could not be said that the judge had failed to consider the requirements of the Act. It had been unclear as to whether the husband would in fact be leaving his job, and the judge had been entitled to make the order he did. The order would provide a standard of living for the wife which was reasonable while the husband continued in his work. The appeal was dismissed.

Judges:

Sir Mark Potter

Citations:

[2008] EWHC 519 (Fam), [2008] 2 FLR 113

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 25

Jurisdiction:

England and Wales

Citing:

Cited – Piglowska v Piglowski HL 24-Jun-1999
No Presumption of House for both Parties
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
Cited – Miller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
Cited – Cordell v Cordell 2002
To succeed in an appeal against an ancillary relief order, the appellant should be able to show some procedural irregularity or that, in conducting the necessary balancing exercise, the district judge has taken into account matters which were . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 24 July 2022; Ref: scu.266245

Mark v Mark: CA 19 Feb 2004

The husband sought to stay divorce proceedings saying that his wife was an illegal overstayer, and could not therefore establish residence either as habitual or as domicile of choice.
Held: Jurisdiction existed. The law since Shah had developed and the rule was one of public policy, not of construction. The Human Rights Act required the courts to provide a remedy, and jurisdiction could be granted based upon the wife’s habitual residence here. The need to prevent unlawful residence creating rights to benefits has no place in family law. The law has a margin of appreciation within which it could prevent an ouster of jurisdiction for an element of illegality.

Judges:

Thorpe, Waller, Latham LJJ

Citations:

Times 27-Feb-2004, [2004] EWCA Civ 361, [2004] EWCA Civ 168, Gazette 01-Apr-2004

Links:

Bailii, Bailii

Statutes:

Domicile and Matrimonial Proceedings Act 1973 5(2)

Jurisdiction:

England and Wales

Citing:

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 . .
See Also – Mark v Mark CA 27-Nov-2002
Effect of questions about immigration status on domicile and jurisdiction to issue divorce petition. . .

Cited by:

Appeal from – Mark v Mark HL 30-Jun-2005
The petitioner sought to divorce her husband. Both were Nigerian nationals, and had married under a valid polygamous marriage in Nigeria. She claimed that the courts had jurisdiction because of her habitual residence here despite the fact that her . .
Cited – Tigere, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills SC 29-Jul-2015
After increasing university fees, the student loan system was part funded by the government. They introduced limits to the availability of such loans, and a student must have been lawfully ordinarily resident in the UK for three years before the day . .
Lists of cited by and citing cases may be incomplete.

Family, Jurisdiction

Updated: 24 July 2022; Ref: scu.194817

Ms B v An NHS Hospital Trust: FD 22 Mar 2002

The applicant had come to suffer from a completely disabling condition, and requested that her life support machine be turned off. She did not want to live on a ventilator, and had made a living will. She was found at first to have capacity to make that decision, but the doctors revised their opinions. She now sought a declaration that she had capacity, and that her treatment against her will was unlawful.
Held: The right to determine what shall be done with one’s own body is a fundamental right in our society. There is a presumption of capacity. It was dangerous to generalise about the effect of particular placements in this case her presence in an intensive care unit as reducing capacity. Capacity might need to be established to a higher degree where an especially grave decision was being made. In this case the patient had capacity. The treating clinicians and the hospital should always have in mind that a seriously physically disabled patient who is mentally competent, has the same right to personal autonomy, and to make decisions as any other person with mental capacity. If there is no disagreement about competence but the doctors are for any reason unable to carry out the wishes of the patient, their duty is to find other doctors who will do so.

Judges:

The President, Dame Elizabeth Butler-Sloss

Citations:

(2002) 65 BMLR 149, [2002] Fam Law 423, [2002] 2 FCR 1, [2002] 1 FLR 1090, [2002] 2 All ER 449, [2002] Lloyd’s Rep Med 265, [2002] EWHC 429 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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 F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .
Cited – In re T (Adult: Refusal of Treatment) CA 1992
A patient’s right to veto medical treatment is absolute: ‘This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or . .
Cited – In re MB (Medical Treatment) CA 26-Mar-1997
The patient was due to deliver a child. A delivery by cesarean section was necessary, but the mother had a great fear of needles, and despite consenting to the operation, refused the necessary consent to anesthesia in any workable form.
Held: . .
Cited – St George’s Healthcare National Health Service Trust v S, Regina v Collins and Others ex parte S CA 8-May-1998
The authority wanted S to be admitted to hospital, if necessary against her will. She was pregnant and wanted to have a natural birth, even at great risk to herself and her baby. She had refused medical treatment for eclampsia. The caesarian had by . .

Cited by:

Cited – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 24 July 2022; Ref: scu.170008

Paulin v Paulin: CA 17 Mar 2009

The court considered an application by the wife when, anticipating ancillary relief claims, the husband sought to have himself declared bankrupt, and she intervened to have the bankruptcy set aside. The husband now appealed.
Held: Wilson LJ set out examples of the application to particular facts of the jurisdiction to reverse an error prior to the perfection of a judgment. The jurisdiction does not exist so as to enable a party to re-argue points already argued orally or to advance points which were not argued before judgment was given.
Wilson LJ said: ‘Until 1972 the courts made no attempt to narrow the circumstances in which it would be proper for a judge to exercise his jurisdiction to reverse his decision prior to the sealing of the order’.

Judges:

Wilson, Longmore, Lawrence Collins LJJ

Citations:

[2009] EWCA Civ 221, [2009] 2 FLR 3, [2009] BPIR 572, [2009] 3 All ER 88, [2009] Fam Law 567, [2009] 2 FCR 477

Links:

Bailii

Statutes:

Insolvency Act 1986 306

Jurisdiction:

England and Wales

Cited by:

Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 5) Admn 16-Oct-2009
The claimant sought to assert that he had been tortured whilst held by the US Authorities. He sought publication of an unredacted report supplied by the US security services to the respondent. The respondent argued that the full publication was . .
Cited – Sheikh and Another v Dogan and Others ChD 17-Nov-2009
The judge had reserved his judgment, but had since received further voluminous representations from a party.
Held: None of the matters raised suggested a proper reason for exercising the jurisdiction given by In re Barrell. The claimant was . .
Cited – Re L and B (Children) SC 20-Feb-2013
The court was asked as to the extent to which a court, having once declared its decision, could later change its mind. Though this case arose with in care proceedings, the court asked it as a general question. The judge in a fact finding hearing in . .
Cited – TZ v General Medical Council Admn 17-Apr-2015
Appeal against decision of a Fitness to Practise Panel holding that the Appellant’s fitness to practise as a medical practitioner was impaired by reason of his misconduct. It directed that his name be erased from the Medical Register under section . .
Lists of cited by and citing cases may be incomplete.

Family, Insolvency, Litigation Practice

Updated: 23 July 2022; Ref: scu.321828

Rothwell v Rothwell: CA 9 Dec 2008

The parties, H and W had disputed ancillary relief on their divorce. After a contested hearing, and an appeal lodged, the court proposed mediation. Mediation led to an agreement, which was at first repudiated but then re-instated by H. W applied for costs after the mediation.
Held: The mediated agreement provided for no costs to be paid. That would apply also to the later vacillation.
As a matter of general law there is no doubt at all that once the parties have arrived at a compromise of litigation, the court will uphold and enforce that compromise, absent some vitiating element.

Judges:

Thorpe, Jackson LJJ

Citations:

[2008] EWCA Civ 1600, [2009] 2 FLR 96, [2009] Fam Law 388

Links:

Bailii

Jurisdiction:

England and Wales

Family, Costs

Updated: 23 July 2022; Ref: scu.291920

V v M and Another: CA 16 May 2006

The court gave directions to ensure that administrative staff could identify child abduction cases to help ensure that time limits were complied with.

Citations:

Times 30-Jun-2006

Jurisdiction:

England and Wales

Family

Updated: 21 July 2022; Ref: scu.242945

Y v Slovenia: ECHR 28 May 2015

ECHR Article 8-1
Respect for private life
Positive obligations
Failure to protect complainant’s personal integrity in criminal proceedings concerning sexual abuse: violation
Facts – In 2001, at the age of 14, the applicant was allegedly victim of repeated sexual assaults by a family friend, X. Following a criminal complaint by the applicant’s mother, investigations started in 2003 and criminal proceedings were brought against X in 2007. In 2009, after having held 12 hearings in total, the domestic courts acquitted X of all charges on the ground that some of the applicant’s allegations concerning X’s physical conditions had been disproved by an expert, thus making it impossible, in the domestic courts’ view, to prove X’s guilt beyond reasonable doubt. The State Prosecutor’s appeal against that judgment was rejected in 2010, as was the applicant’s request to the Supreme State Prosecutor for the protection of legality a few months later.
Law – Article 8: The Court had to examine whether the respondent State had afforded sufficient protection of the applicant’s right to respect for her private life, and especially for her personal integrity, with respect to the manner in which she had been questioned during the criminal proceedings against her alleged sexual abuser. In so doing, it had to strike a fair balance between the rights of the applicant as a victim called upon to testify in criminal proceedings, protected by Article 8, and those of the defence, namely the right of the accused to call and cross-examine witnesses set out in Article 6 – 3 (d). Unlike the position in other similar cases previously examined by the Court, which had all been brought by the accused persons, in the present case the Court had to examine this issue from the perspective of the alleged victim.
In the instant case, the interests of securing a fair trial required X to be provided an opportunity to cross-examine the applicant, especially as the applicant’s testimony at the trial provided the only direct evidence in the case and the other evidence presented was conflicting.
However, given that criminal proceedings concerning sexual offences were perceived as a very unpleasant and prolonged experience by the victims, and that a direct confrontation between those charged with sexual abuse and their alleged victims involved a risk of further traumatisation for the victims, personal cross-examination by the defendant had to be subject to the most careful assessment by the national courts. Indeed, several international instruments, including European Union law, provided that certain rights should be granted to victims of, inter alia, sexual abuse, including the duty of the State to protect them from intimidation and repeat victimisation when providing testimony of the abuse.
In this respect, the Court noted that the applicant’s questioning had stretched over four trial hearings held over seven months, a lengthy period which in itself raised concerns, especially given the absence of any apparent reason for the long intervals between the hearings. Moreover, at two of those hearings X had personally cross-examined the applicant, continuously contesting the veracity of her answers and addressing her with questions of a personal nature. In the Court’s view, those questions were aimed at attacking the applicant’s credibility as well as at degrading her character. However, despite the duty incumbent on the judicial authorities to oversee the form and content of X’s questions and comments and, if necessary, to intervene, the presiding judge’s intervention had been insufficient to mitigate what had clearly been a distressing experience for the applicant.
As to the applicant’s claim that X’s counsel should have been disqualified from the proceedings as he had been consulted by her on the sexual assaults shortly after the alleged events took place, the Court found that the applicable domestic law, or the manner in which it had been applied in the present case, had not taken sufficient account of the applicant’s interests. This was so because the negative psychological effect of being cross-examined by X’s counsel had considerably exceeded the apprehension the applicant would have experienced if she had been questioned by another lawyer. Moreover, any information he might have received from her in his capacity as a lawyer should have been treated as confidential and should not have been used to benefit a person with adverse interests in the same matter.
The Court also noted the inappropriateness of the questions put to the applicant by the gynaecologist appointed by the district court to establish whether she had engaged in sexual intercourse at the material time. In this regard, the authorities were required to ensure that all participants in the proceedings called upon to assist them in the investigation or the decision-making process treated victims and other witnesses with dignity and did not cause them unnecessary inconvenience. However, the appointed gynaecologist not only lacked proper training in conducting interviews with victims of sexual abuse, but had also addressed the applicant with accusatory questions and remarks exceeding the scope of his task and of his medical expertise. As a consequence, the applicant had been put in a defensive position unnecessarily adding to the stress of the criminal proceedings.
Even though the domestic authorities had taken a number of measures to prevent further traumatisation of the applicant, such measures had ultimately proved insufficient to afford her the protection necessary to strike an appropriate balance between her rights and interests protected by Article 8 and X’s defence rights protected by Article 6 of the Convention.
Conclusion: violation (six votes to one).
The Court also found unanimously a violation of Article 3 on account of the failure of the authorities of the respondent State to ensure a prompt investigation and prosecution of the applicant’s complaint of sexual abuse.
Article 41: EUR 9,500 in respect of non-pecuniary damage.
(See also S.N. v. Sweden, 34209/96, 2 July 2002; Aigner v. Austria, 28328/03, 10 May 2012; and the Factsheet on Violence against women)

Citations:

41107/10 – Legal Summary, [2015] ECHR 532

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights, Family

Updated: 21 July 2022; Ref: scu.547592

X v Y: CA 11 Sep 2014

Oral renewal of an application for permission to appeal a refusal to permit the applicant to intervene in family ancillary relief proceedings by the wife seeking to enforce a financial remedy order made in her favour against the estate of the husband, who died in 2013, before the order had been fully implemented.

Judges:

Lord Justice Briggs

Citations:

[2014] EWCA Civ 1465

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 21 July 2022; Ref: scu.539131

H v L and R: FD 7 Dec 2006

A male litigant in person wished to cross-examine a young adult woman whom he was alleged to have abused sexually when she was a child. The young woman in question was a borderline anorexic and a suicide risk. In criminal proceedings, section 34A of the 1988 Act and sections 34 and 35 of the 1999 Act would forbid a defendant from cross-examining a child witness personally.
Held: No such provisions applied in the Family Courts. The Attorney-General , at the court’s urgent request, agreed, exceptionally, to provide an advocate.
Wood J concluded: ‘I would invite urgent attention as to creating a new statutory provision which provides for representation in such circumstances, analogous to the existing statutory framework governing criminal proceedings as set out in the 1999 Act. Such a statutory provision should also provide that the costs of making available to the court an advocate should fall on public funds. I can see no distinction in policy terms between the criminal and the civil process. Logic strongly suggests that such a service should be made available to the family jurisdiction. If it is inappropriate for a litigant in person to cross-examine such a witness in the criminal jurisdiction, why not in the family jurisdiction? This is my judgment’.

Judges:

Wood J

Citations:

[2006] EWHC 3099 (Fam), [2007] 2 FLR 162, [2007] 1 FCR 430

Links:

Bailii

Statutes:

Youth Justice and Criminal Evidence Act 1999 34 35, Criminal Justice Act 1988 34A

Jurisdiction:

England and Wales

Cited by:

Approved – Chief Constable and Another v YK and Others FD 6-Oct-2010
The court gave directions in Forced Marriage Protection order applications. An order had been made at the request of the police on behalf of A, and the court had declined to discharge it on A’s own application.
Held: Special advocates were not . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 21 July 2022; Ref: scu.279030

NA v MA: FD 24 Nov 2006

The very wealthy H found that W had committed adultery with one of his friends. H pressured W to sign an agreement providing that she would receive a specified lump sum and annual payments if their marriage ended in divorce. W signed it because H insisted that she should do so if the marriage was to continue.
Held: Baron J said that: ‘as the idea of an agreement evolved it hardened into a legal, post-nuptial agreement’. It was on this basis that H sought to have the agreement converted into an order of the court. When dealing with the law Baron J did not distinguish clearly between ante-nuptial, post-nuptial and separation agreements. She said: ‘It is an accepted fact that an agreement entered into between husband and wife does not oust the jurisdiction of this court. For many years, agreements between spouses were considered void for public policy reasons but this is no longer the case. In fact, over the years, pre-nuptial ‘contracts’ have become increasingly common place and are, I accept, much more likely to be accepted by these courts as governing what should occur between the parties when the prospective marriage comes to an end. That is, of course, subject to the discretion of the court and the application of a test of fairness/manifest unfairness. It may well be that Parliament will provide legislation but, until that occurs, current authority makes it clear that the agreements are not enforceable per se, although they can be persuasive (or definitive) depending upon the precise circumstances that lead to their completion.’
The judge went on to apply the law of undue influence, holding: ‘I am clear that, to overturn the agreement, I have to be satisfied that this wife’s will was overborne by her husband exercising undue pressure or influence over her. I am also clear that if I do not overturn the agreement per se, I still have to consider whether it is fair and should be approved so as to become a court order.’
She overturned the agreement on the ground of undue influence.

Judges:

Baron J DBE

Citations:

[2006] EWHC 2900 (Fam), [2007] 1 FLR 1760, [2007] Fam Law 295

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Radmacher v Granatino CA 2-Jul-2009
Husband and wife, neither English, had married in England. Beforehand they had signed a prenuptial agreement in Germany agreeing that neither should claim against the other on divorce. The wife appealed against an order to pay a lump sum to the . .
Cited – Radmacher (Formerly Granatino) v Granatino SC 20-Oct-2010
The parties, from Germany and France married and lived at first in England. They had signed a pre-nuptial agreement in Germany which would have been valid in either country of origin. H now appealed against a judgment which bound him to it, . .
Lists of cited by and citing cases may be incomplete.

Family, Undue Influence

Updated: 21 July 2022; Ref: scu.279027

Mubarak v Mubarik: FD 9 May 2006

Judges:

Bodey J

Citations:

[2006] EWHC 1260 (Fam), [2007] 1 FLR 722, [2007] Fam Law 13, [2007] 1 WLR 271

Links:

Bailii

Citing:

See Also – Mubarak v Mubarak FD 30-Nov-2000
In ancillary relief proceedings, where a respondent company director conceded that the assets and income of a company could be treated as his own, it could be proper to draw aside the veil of incorporation. Nevertheless the court should be careful . .
See Also – Mubarak v Mubarak CA 2001
A judgment summons, issued was issued by the wife to enforce a lump sum order made against her husband in their divorce proceedings. The judge had performed his statutory duty which included having to satisfy himself under s. 25 of the 1973 Act of . .
See Also – Mubarak v Mubarik 2003
The court was asked as to whether the expression ‘in the possession of’ in RSC Ord.48 extended to documents not physically held by the judgment debtor but to sight of which he has a clear and enforceable right.
Held: The expression did so . .

Cited by:

See Also – Mubarak v Mubarik and others FD 12-Jan-2007
. .
See Also – Mubarak v Mubarak and others CA 17-Jul-2007
Application for leave to appeal against ancillary relief order – protracted proceedings. . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 21 July 2022; Ref: scu.279019

NG v KR (Pre-nuptial contract): FD 28 Jul 2008

The parties were foreign nationals, but married and lived in England after the wedding. They had signed a pre-nuptial agreement which would be valid in either country of origin, but the husband now sought ancillary relief putting the aside.
Held: The circumstances of the agreement fell short of several acknowkedged safeguards and the weight to be attached to it fell to be reduced. Even so the husband’s his award was restricted to reflect the fact that he had signed it. Provision was made for the two unanticipated children. The husband was awarded andpound;5,560,000, helping provide him with an annual income of andpound;100,000 for life and a house in London, where the two children could visit him. Each child was to receive andpound;35,000 a year until they ceased full time education. In addition she awarded a sum to enable him to buy a home in Germany (which would remain owned by the wife) where the two children could stay with him.

Judges:

Baron DBE J

Citations:

[2008] EWHC 1532 (Fam), [2009] 1 FLR 1478, [2009] 1 FCR 35, [2008] Fam Law 1082

Links:

Bailii

Cited by:

Appeal from – Radmacher v Granatino CA 2-Jul-2009
Husband and wife, neither English, had married in England. Beforehand they had signed a prenuptial agreement in Germany agreeing that neither should claim against the other on divorce. The wife appealed against an order to pay a lump sum to the . .
At First instance – Radmacher (Formerly Granatino) v Granatino SC 20-Oct-2010
The parties, from Germany and France married and lived at first in England. They had signed a pre-nuptial agreement in Germany which would have been valid in either country of origin. H now appealed against a judgment which bound him to it, . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 21 July 2022; Ref: scu.278555

Topping v Topping: CA 10 Sep 2008

Appeal by Mr Topping from an order committing the appellant to prison for 42 days or until he had paid the sum of andpound;442,816.74 to the respondent, his ex-wife.

Judges:

Tuckey, Longmore LJJ

Citations:

[2008] EWCA Civ 1142

Links:

Bailii

Jurisdiction:

England and Wales

Family, Contempt of Court

Updated: 19 July 2022; Ref: scu.277355

MM (Lebanon) and Others, Regina (on The Applications of) v Secretary of State and Another: SC 22 Feb 2017

Challenge to rules requiring certain minimum levels of income (Minimum Income Requirement – MIR) for allowing entry for non-EEA spouse.
Held: The challenges udder the Human Rights Act to the Rules themselves failed. Nor did any separate issue of discrimination arise under article 14.
However, the appendix with instructions for entry clearance officers considering the situation was inadequate: ‘Rather than treating the best interests of children as a primary consideration, taking account of the factors summarised in Jeunesse, they lay down a highly prescriptive criterion requiring ‘factors . . that can only be alleviated by the presence of the applicant in the UK’, such as support during a major medical procedure, or ‘prevention of abandonment where there is no other family member . . ‘. ‘
and ‘while the rules as such are not open to challenge, there are aspects of the instructions to entry clearance officers which require revision to ensure that the decisions made by them are consistent with their duties under the HRA. In the light of that conclusion, the Secretary of State might wish to consider whether it would be more efficient to revise the rules themselves, to indicate the circumstances in which alternative sources of funding should or might be taken into account, rather than simply to revise the guidance.’
‘The MIR is part of an overall strategy aimed at reducing net migration. Its particular aims are no doubt entirely legitimate: to ensure, so far as practicable, that the couple do not have recourse to welfare benefits and have sufficient resources to be able to play a full part in British life. As accepted by the courts below, those aims are sufficient to justify the interference with, or lack of respect for, the article 8 right . . we would also reject the suggestion that there is no rational connection between those legitimate aims and the particular income threshold chosen. The work of the Migration Advisory Committee is a model of economic rationality. Even though it had to make certain assumptions, it was careful to identify and rationalise these. Making those assumptions, it arrived at an income figure above which the couple would not have any recourse to welfare benefits, including tax credits and housing benefits. That being a legitimate aim, it is also not possible to say that a lesser threshold, and thus a less intrusive measure, should have been adopted. It may, of course, have a disproportionate effect in the particular circumstances of an individual case, but that is not the claim currently before us . . ‘

Judges:

Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Reed, Lord Carnwath, Lord Hughes, Lord Hodge

Citations:

[2017] UKSC 10, [2017] 1 WLR 771, [2017] Imm AR 729, [2017] HRLR 6, [2017] WLR(D) 124, [2017] INLR 575, UKSC 2015/0011

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video

Statutes:

Immigration Rules, European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

Appeal from – MM (Lebanon) and Others, Regina (on The Application of) v Secretary of State for The Home Department and Another CA 11-Jul-2014
Aikens LJ said: ‘The court would not be entitled to strike down the rule unless satisfied that it was incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all cases.’ and ‘If the particular . .
Appeal from – The Secretary of State for The Home Department v SS (Congo) and Others CA 23-Apr-2015
The court considered the proper approach to be adopted, in light of new Immigration Rules promulgated in July 2012, to applications for leave to enter the United Kingdom by persons who are family members of someone already present here. . .
Cited – KA and others (Adequacy of Maintenance) Pakistan IAT 4-Sep-2006
The Tribunal adopted the level of income support as the test of adequate maintenance – at that level it could not be said that the family were not properly maintained but neither should it be contemplated that immigrants would live below that level. . .
Cited – AM (Ethiopia) and others v Entry Clearance Officer CA 16-Oct-2008
When applying for entry under a sponsorship arrangement, the three applicable rules disallowed third party support.
Laws LJ said: ‘The immigrant’s article 8 rights will (must be) protected by the Secretary of State and the court whether or not . .
At First Instance – MM and Others v Secretary of State for The Home Department Admn 5-Jul-2013
WLRD When applied to either recognised refugees or British citizens Appendix FM of the Statement of Changes in Immigration Rules (HC 395), as inserted, which prevented entry clearance to a party to a marriage . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – Ali and Bibi, Regina (on The Applications of) v Secretary of State for The Home Department SC 18-Nov-2015
At the claimants alleged that the rules requiring a foreign spouse or partner of a British citizen or a person settled in this country to pass a test of competence in the English language before coming to live here were an unjustifiable interference . .
Cited – Abdulaziz etc v The United Kingdom ECHR 28-May-1985
Three women, all lawfully settled in the UK, had married third-country nationals but, at first, the Secretary of State had refused permission for their husbands to remain with them, or join them, in the UK.
Held: The refusals of permission had . .
Cited – Boultif v Switzerland ECHR 2-Aug-2001
The applicant complained under Article 8 that the Swiss authorities had not renewed his residence permit, after which he had been separated from his wife, a Swiss citizen and who could not be expected to follow him to Algeria. Switzerland argued . .
Cited – Tuquabo-Tekle and Others v The Netherlands ECHR 1-Dec-2005
ECHR Judgment (Merits and Just Satisfaction) – Preliminary objection dismissed (estoppel); Violation of Art. 8; Pecuniary damage – claim dismissed; Non-pecuniary damage – financial award; Costs and expenses . .
Cited – Rodrigues Da Silva and Hoogkamer v The Netherlands ECHR 31-Jan-2006
A Brazilian mother came to the Netherlands in 1994 and set up home with a Dutch national but not applying for a residence permit. In 1996 they had a daughter who became a Dutch national. In 1997 they split up and the daughter remained with her . .
Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Cited – Uner v The Netherlands ECHR 18-Oct-2006
(Grand Chamber) The court considered the application of article 8 considerations in extradition and similar proceedings, and said: ‘the best interests and well-being of the children, in particular the seriousness of the difficulties which any . .
Cited – Neulinger And Shuruk v Switzerland ECHR 6-Jul-2010
(Grand Chamber) The Swiss Court had rejected the claimant mother’s claim, under article 13b of the Hague Convention, that there was a grave risk that returning the child to Israel would lead to physical or psychological harm or otherwise place him . .
Cited – Nunez v Norway ECHR 28-Jun-2011
Article 8 rights can be sufficient to tip the balance in favour against deportation of an immigrant. . .
Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
Cited – IAA And Others v The United Kingdom ECHR 13-Jan-2014
. .
Cited – Jeunesse v The Netherlands ECHR 3-Oct-2014
(Grand Chamber) Although the applicant had married and had three children while her immigration status in the Netherlands was precarious, there were exceptional circumstances such that a fair balance had not been struck between the competing . .
Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
Cited – Ahmut v The Netherlands ECHR 28-Nov-1996
The bond between natural parents and their children is a strong indicator of the existence of family life: ‘from the moment of the child’s birth and by the very fact of it, there exists between him and his parents a bond amounting to ‘family life’, . .
Cited – Sen v The Netherlands ECHR 21-Dec-2001
. .
Cited – Konstatinov v The Netherlands ECHR 26-Apr-2007
The applicant, of Roma origin with a troubled and criminal history. The Court considered the minister’s refusal of her request for a residence permit to enable her to live with her husband (entitled to permanent residence since 1988) and their son . .
Cited – EB (Kosovo) v Secretary of State for the Home Department HL 25-Jun-2008
The claimant arrived as a child from Kosovo in 1999. He said that the decision after so long, it would breach his human rights now to order his return.
Held: The adjudicator had failed to address the effect of delay. That was a relevant . .
Cited – Baiai and others, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2008
In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present . .
Cited – Y v Russia ECHR 4-Dec-2008
The applicants complained about the first applicant’s deportation to China, about his unlawful detention, about the disruption of their family life and about the absence of domestic remedies. They referred to Articles 3, 5, 8 and 13 of the . .
Cited – O’Donoghue and Others v United Kingdom ECHR 14-Dec-2010
. .
Cited – Alvi, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimant had entered as a student, and then stayed under a work permit. New rules were brought in, and because his occupation as a physiotherapy assistant was not listed, he was not credited with sufficient points for a permit. The Court of . .
Cited – Zoumbas v Secretary of State for The Home Department SC 27-Nov-2013
The appellant challenged a decision that he did not qualify for asylum or humanitarian protection and that his further representations were not a fresh human rights claim under paragraph 353 of the Immigration Rules. He argued that the return to the . .
Cited – SS (Nigeria) v Secretary of State for The Home Department CA 22-May-2013
Laws LJ’s observed that for a claim under article 8 of the ECHR to prevail, it must be ‘a very strong claim indeed’ . .
Cited – EB (Kosovo) v Secretary of State for the Home Department HL 25-Jun-2008
The claimant arrived as a child from Kosovo in 1999. He said that the decision after so long, it would breach his human rights now to order his return.
Held: The adjudicator had failed to address the effect of delay. That was a relevant . .
Cited – AM (Ethiopia) and others v Entry Clearance Officer CA 16-Oct-2008
When applying for entry under a sponsorship arrangement, the three applicable rules disallowed third party support.
Laws LJ said: ‘The immigrant’s article 8 rights will (must be) protected by the Secretary of State and the court whether or not . .
Cited – Jones v First Tier Tribunal and Another SC 17-Apr-2013
The claimant had been injured when a lorry driver swerved to avoid hitting a man who stood in his path. He said that the deceased’s act of suicide amounted to an offence of violence under the 1861 Act so as to bring his own claim within the 2001 . .
Cited – SS (Nigeria) v Secretary of State for The Home Department CA 22-May-2013
Laws LJ’s observed that for a claim under article 8 of the ECHR to prevail, it must be ‘a very strong claim indeed’ . .
Cited – MM (Lebanon) and Others, Regina (on The Application of) v Secretary of State for The Home Department and Another CA 11-Jul-2014
Aikens LJ said: ‘The court would not be entitled to strike down the rule unless satisfied that it was incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all cases.’ and ‘If the particular . .
Cited – The Secretary of State for The Home Department v SS (Congo) and Others CA 23-Apr-2015
The court considered the proper approach to be adopted, in light of new Immigration Rules promulgated in July 2012, to applications for leave to enter the United Kingdom by persons who are family members of someone already present here. . .
Cited – Mukarkar v Secretary of State for the Home Department CA 25-Jul-2006
The applicant, a Yemeni citizen, obtained entry clearance as a visitor by deception and then unsuccessfully sought leave to remain as a dependent relative of his many children settled here. He had numerous ailments and his health was continuing to . .
Cited – Mahad (Previously referred to as AM) (Ethiopia) v Entry Clearance Officer SC 16-Dec-2009
The claimants each sought entry to be with members of their family already settled here. The Court was asked whether the new Immigration Rules imposed a requirement which permitted third party support by someone other than the nominated sponsor.
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, Family

Updated: 19 July 2022; Ref: scu.575312

MM and Others v Secretary of State for The Home Department: Admn 5 Jul 2013

WLRD When applied to either recognised refugees or British citizens Appendix FM of the Statement of Changes in Immigration Rules (HC 395), as inserted, which prevented entry clearance to a party to a marriage where the income of the sponsor did not meet the minimum threshold, was a disproportionate interference with the right to respect for family life under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Judges:

Blake J

Citations:

[2013] EWHC 1900 (Admin), [2013] WLR(D) 280, [2014] Imm AR 245, [2014] 1 WLR 2306

Links:

Bailii, WLRD

Statutes:

European Convention on Human Rights 8

Jurisdiction:

England and Wales

Cited by:

Appeal from – MM (Lebanon) and Others, Regina (on The Application of) v Secretary of State for The Home Department and Another CA 11-Jul-2014
Aikens LJ said: ‘The court would not be entitled to strike down the rule unless satisfied that it was incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all cases.’ and ‘If the particular . .
At First Instance – MM (Lebanon) and Others, Regina (on The Applications of) v Secretary of State and Another SC 22-Feb-2017
Challenge to rules requiring certain minimum levels of income (Minimum Income Requirement – MIR) for allowing entry for non-EEA spouse.
Held: The challenges udder the Human Rights Act to the Rules themselves failed. Nor did any separate issue . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Immigration, Family

Updated: 19 July 2022; Ref: scu.512208

Arif v Zar and Another: CA 18 Jul 2012

H had declared himself bankrupt. W asserted that he had done this by hiding his assets and fabricating debts in order to defeat her financial claims on the divorce. She appealed from a refusal to transfer the annulment proceedings to the family court to allow the investigation to become part of

Judges:

Thorpe, Rimer, Patten LJJ

Citations:

[2012] EWCA Civ 986, [2012] WLR(D) 239

Links:

Bailii, WLRD

Statutes:

Insolvency Rules 1986

Jurisdiction:

England and Wales

Insolvency, Family

Updated: 19 July 2022; Ref: scu.462947

Mitchell v Gibson: ScSf 2011

Sheriff Principal R A Dunlop QC considered the need to show ‘disadvantage’ under the Act and concluded that, provided that disadvantage has been suffered in the interests of the defender to some extent, the door is open to an award of a capital sum even though it may also have been suffered in the interests of the applicant.

Judges:

Sheriff Principal R A Dunlop QC

Citations:

2011 Fam LR 53

Jurisdiction:

Scotland

Cited by:

Cited – Gow v Grant SC 24-May-2012
The parties had lived together as an unmarried couple, but separated. Mrs Gow applied under the 2006 Act for provision. Mr Grant’s appeal succeeded at the Inner House, and Mrs Gow now herself appealed.
Held: The appeal succeeded. The Act did . .
Lists of cited by and citing cases may be incomplete.

Scotland, Family

Updated: 19 July 2022; Ref: scu.463495

Nunez v Norway: ECHR 28 Jun 2011

Article 8 rights can be sufficient to tip the balance in favour against deportation of an immigrant.

Citations:

55597/09, [2011] ECHR 1047, (2011) 58 EHRR 17

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – BH and Another v The Lord Advocate and Another SC 20-Jun-2012
The appellants wished to resist their extradition to the US to face criminal charges for drugs. As a married couple that said that the extraditions would interfere with their children’s rights to family life.
Held: The appeals against . .
Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
Cited – MM (Lebanon) and Others, Regina (on The Applications of) v Secretary of State and Another SC 22-Feb-2017
Challenge to rules requiring certain minimum levels of income (Minimum Income Requirement – MIR) for allowing entry for non-EEA spouse.
Held: The challenges udder the Human Rights Act to the Rules themselves failed. Nor did any separate issue . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Immigration, Family

Updated: 19 July 2022; Ref: scu.441267

Whitehouse-Piper v Stokes: CA 15 Jul 2008

The court examined its jurisdiction to hear an appeal on an ancillary relief application where one party had remarried.

Judges:

Thorpe LJ, Wall LJ, Stanley Burnton LJ

Citations:

[2008] EWCA Civ 1049, [2009] 1 FLR 983, [2009] Fam Law 184

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 28(3)

Jurisdiction:

England and Wales

Citing:

Cited – Robin v Robin CA 1983
At the first ancillary relief application orders had been made but the registrar had postponed enforcement of a charge while the child was under age. Four years later, W returned for clarification of the order, but the judge dismissed her . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 19 July 2022; Ref: scu.276758

Stodgell v Stodgell Admn: Admn 18 Jul 2008

The court heard divorce ancillary relief applications against the background of an impending criminal confiscation order against the husband.

Citations:

[2008] EWHC 1925 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Stodgell v Stodgell FD FD 18-Jul-2008
The parties were involved in ancillary relief proceedings. At the same time the husband was in prison after having hidden earnings from his business, and was subject to an unsatisfied confiscation order. The guardian had had doubts about the . .
Lists of cited by and citing cases may be incomplete.

Family, Crime

Updated: 19 July 2022; Ref: scu.276245

In Re M (A Debtor) (488-Io of 1996): ChD 10 Feb 1999

A wife who had an order for ancillary relief in her favour, but whose husband entered into an Individual Voluntary Arrangement, was obliged to accept the allotted dividend, but her special position under the Act was also to be acknowledged. She had the choice of awaiting discharge from the IVA first.

Citations:

Gazette 03-Mar-1999, Times 10-Feb-1999

Statutes:

Insolvency Act 1986 281(5)

Jurisdiction:

England and Wales

Family, Insolvency

Updated: 19 July 2022; Ref: scu.82012

Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department and Another: Admn 10 May 2006

The claimants had successfully brought judicial review of the defendant’s policies concluding that the defendant had unlawfully interfered with their right to family life by effectively preventing them marrying under the 2004 Act. They now sought damages.

Judges:

Silber J

Citations:

[2006] EWHC 1035 (Admin)

Links:

Bailii

Statutes:

European Convention on Human Rights 12 14, Asylum and Immigration (Treatment of Claimants etc) Act 2004 19, Immigration (Procedure for Marriage) Regulations 2005

Jurisdiction:

England and Wales

Citing:

See Also – Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department Admn 10-Apr-2006
The respondent brought in laws restricting marriages between persons subject to immigration control, requiring those seeking non Church of England marriages to first obtain a certificate from the defendant that the marriage was approved. The . .

Cited by:

See Also – Baiai and Another, Regina (on the Application of) v Secretary of State for Home Department Admn 16-Jun-2006
The 2004 Act and Regulations operated to prevent the claimant marrying. He succeeded in challenging the regulations, and now sought damages. . .
See Also – Secretary of State for the Home Department v Baiai and others CA 23-May-2007
The claimants challenged rules which meant that certain immigrants subject to immigration control were unable to marry, save only those marrying according to the rites of the Church of England.
Held: The rules were not justified by evidence . .
See Also – Baiai and others, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2008
In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present . .
Lists of cited by and citing cases may be incomplete.

Immigration, Family, Human Rights

Updated: 18 July 2022; Ref: scu.241606

Baiai and Another, Regina (on the Application of) v Secretary of State for Home Department: Admn 16 Jun 2006

The 2004 Act and Regulations operated to prevent the claimant marrying. He succeeded in challenging the regulations, and now sought damages.

Judges:

Silber J

Citations:

[2006] EWHC 1454 (Admin), [2006] HRLR 39, [2007] 1 WLR 735, [2006] 4 All ER 555

Links:

Bailii

Statutes:

European Convention on Human Rights 12 14, Immigration (Procedure for Marriage) Regulations 2005, Asylum and Immigration (Treatment of Claimants etc) Act 2004 19

Jurisdiction:

England and Wales

Citing:

See Also – Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department Admn 10-Apr-2006
The respondent brought in laws restricting marriages between persons subject to immigration control, requiring those seeking non Church of England marriages to first obtain a certificate from the defendant that the marriage was approved. The . .
See Also – Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department and Another Admn 10-May-2006
The claimants had successfully brought judicial review of the defendant’s policies concluding that the defendant had unlawfully interfered with their right to family life by effectively preventing them marrying under the 2004 Act. They now sought . .

Cited by:

See Also – Secretary of State for the Home Department v Baiai and others CA 23-May-2007
The claimants challenged rules which meant that certain immigrants subject to immigration control were unable to marry, save only those marrying according to the rites of the Church of England.
Held: The rules were not justified by evidence . .
See Also – Baiai and others, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2008
In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present . .
Lists of cited by and citing cases may be incomplete.

Immigration, Family, Human Rights

Updated: 18 July 2022; Ref: scu.242573

Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department: Admn 10 Apr 2006

The respondent brought in laws restricting marriages between persons subject to immigration control, requiring those seeking non Church of England marriages to first obtain a certificate from the defendant that the marriage was approved. The applicants said this was discriminatory and infringed their human rights.
Held: Legislation which prevented marriages of convenience between aliens and nationals as a means of immigration control could be justified, but the exemption only of marriages conducted in accordance with the rites of the Church of England made the legislation discriminatory: ‘the jurisprudence of the European Commission on Human Rights expressly permits the introduction of legislation to prevent marriages entered into for the purpose of avoiding immigration control notwithstanding that this legislation might interfere with the right to marry.’ and ‘the Secretary of State and Parliament are entitled to substantial deference in determining what restrictions, if any, are appropriate to impose on article 12 rights ‘ There is clear evidence of sham marriages entered into to secure residence in the UK. However there was no evidence to justify the distinction between the use of the different forms of ceremony. The legislation took no account of steps which would be taken by other religions which might have the same protective effect as those of the rites of the Church of England. The legislation took no account either of evidence that the relationship to be solemnised may have been demonstrably long standing and loving. ‘[T]he new regime is not rationally connected to the legislative objective as it regards the only and crucial relevant factors in determining whether a non EU national can marry in this country as his or her immigration status or the length of an outstanding application . .’, and nor were those present for less than three months allowed to make any representations. The regime was not proportionate.

Judges:

Silber J

Citations:

[2006] EWHC 823 (Admin), Times 14-Apr-2006, [2007] 1 WLR 693, [2006] 36 Fam Law 535, [2006] 2 FLR 645, [2006] 2 FCR 131, [2006] 3 All ER 608

Links:

Bailii

Statutes:

European Convention on Human Rights 12 14, Asylum and Immigration (Treatment of Claimants etc) Act 2004 19-25, Immigration (Procedure for Marriage) Regulations 2005, Marriage Act 1949, Immigration Rules and the Immigration (European Economic Area) Regulations 2000

Jurisdiction:

England and Wales

Citing:

Cited – Taylor v Lancashire County Council and others CA 17-Mar-2005
The tenant occupied his farm under a lease limiting his use of the farm. He was found to be trading in breach of his covenant and a notice to quit was issued and possession sought. He argued that the 1986 Act was discriminatory and inadequate to . .
Cited – Hamer v United Kingdom ECHR 1979
(Commission) The Commission considered the right of a prisoner in prison to get married.
Held: A rule against such marriages was incompatible with article 12. The Commission explained the power of national laws in relation to article 12: ‘Such . .
Cited – F v Switzerland ECHR 18-Dec-1987
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 12; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – domestic proceedings; Costs and expenses award – Convention . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Cited – Klip and Kruger v Netherlands ECHR 1997
The Commission heard a complaint that the parties’ article 12 rights were infringed because under Dutch Act on prevention and suppression of marriages of convenience, there had to be a systematic examination of all intended marriages involving . .
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 – De Freitas v The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others PC 30-Jun-1998
(Antigua and Barbuda) The applicant was employed as a civil servant. He joined a demonstration alleging corruption in a minister. It was alleged he had infringed his duties as a civil servant, and he replied that the constitution allowed him to . .
Cited – Sanders v France ECHR 1996
A male Turkish national and a female French national, living together in Istanbul, complained of delays in obtaining a certificate of capacity to marry under French law. The issue as to the obtaining of a certificate related to (alleged) concerns . .
Cited – A v United Kingdom ECHR 1982
The Commission considered a complaint where entry clearance was refused for the Philippine fiancee of a disabled man of limited means on the basis that she did not have the means to maintain and support herself without access to public funds.
Cited – Samaroo and Sezek v Secretary of State for the Home Department CA 17-Jul-2001
Two foreign nationals with leave to remain in this country committed serious crimes. The Secretary of State ordered their deportation.
Held: Where the deportation of a foreigner following a conviction here, would conflict with his human . .
Cited – Vervaeke v Smith HL 1983
A petitioner for a decree of nullity of an English marriage in the English courts on the grounds of lack of consent to the marriage, having failed to obtain such decree, obtained a declaration from the Belgian court that the English marriage, was . .
Cited – Netherlands ECHR 1985
(Commission ) The first applicant (a Moroccan) had come to the Netherlands and obtained a residence permit on the strength of a permanent relationship with a Dutch woman. That had failed, but he now wished to marry another Dutch national. The . .

Cited by:

See Also – Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department and Another Admn 10-May-2006
The claimants had successfully brought judicial review of the defendant’s policies concluding that the defendant had unlawfully interfered with their right to family life by effectively preventing them marrying under the 2004 Act. They now sought . .
See Also – Baiai and Another, Regina (on the Application of) v Secretary of State for Home Department Admn 16-Jun-2006
The 2004 Act and Regulations operated to prevent the claimant marrying. He succeeded in challenging the regulations, and now sought damages. . .
Appeal from – Secretary of State for the Home Department v Baiai and others CA 23-May-2007
The claimants challenged rules which meant that certain immigrants subject to immigration control were unable to marry, save only those marrying according to the rites of the Church of England.
Held: The rules were not justified by evidence . .
See Also – Baiai and others, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2008
In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present . .
Lists of cited by and citing cases may be incomplete.

Family, Immigration, Human Rights, Discrimination

Updated: 18 July 2022; Ref: scu.240336

Scheeres v Scheeres: CA 23 Sep 1998

A husband earning pounds 41,000 per year had been ordered to pay maintenance to his wife at pounds 18,000pa and for children at pounds 7956pa reduced to half his earnings at pounds 1,000 per month. There is a need always to judge the award against s25 checklist. Adjusted approach was conventional.

Citations:

Gazette 18-Nov-1998, [1998] EWCA Civ 1451

Statutes:

Matrimonial Causes Act 1973 25

Jurisdiction:

England and Wales

Family

Updated: 18 July 2022; Ref: scu.144930

Crown Prosecution Service v MN: Admn 21 Nov 2005

Application by the Crown Prosecution Service for the appointment of a receiver under section 80 of the Criminal Justice Act 1988 (CJA No 3 of 2000) and in the Family Division hearing ancillary relief proceedings.

Judges:

Munby J

Citations:

[2005] EWHC 2622 (Admin)

Links:

Bailii

Statutes:

Criminal Justice Act 1988

Jurisdiction:

England and Wales

Crime, Family

Updated: 18 July 2022; Ref: scu.271158

In re J and Another: FD 20 Jul 2007

The court emphasised that experts providing reports to the court should where such decisions exist, base their factual assumptions on findings of fact already made by the judge in the case.

Citations:

Times 17-Aug-2007

Jurisdiction:

England and Wales

Family

Updated: 17 July 2022; Ref: scu.259288

Trebell v Trebell: CA 19 Mar 2001

Mother’s application for permission to appeal against an order refusing her application to commit her 19-year-old son, the respondent, to prison for breach of an order and instead revoking that earlier order.

Citations:

[2001] EWCA Civ 428

Links:

Bailii

Jurisdiction:

England and Wales

Family, Torts – Other

Updated: 17 July 2022; Ref: scu.200938

A and Others v Times Newspapers Ltd and Others: FD 27 Nov 2002

Applications had been made by fathers for specific issue orders that their children be immunised. The respondents sought orders to allow the cases to be either heard in open court or for other reporting restrictions to be lifted. As a result of their application, the time allocated for the substantive hearings had been severely compromised, and costs were sought against them.
Held: A timely application by the media should not result in a costs order, but here the applications had been late, and had considerably disrupted the hearing. Even if the application was arguable, as it was here, it was not for the media to argue that the individuals involved should themselves have taken any steps. The matter of whether reporting should be allowed and on what terms was for the court alone. An application which was late might be viewed as improper for that very reason, if disruption resulted. Here, however, a pre-trial order might have raised expectations that reporting would be allowed, and a costs order was not appropriate.

Judges:

Sumner J

Citations:

Times 11-Dec-2002

Jurisdiction:

England and Wales

Family, Children, Media, Costs

Updated: 17 July 2022; Ref: scu.178369

Practice Note (Family Division: Incapacitated adults): FD 2 Jan 2002

Proceedings which invoked the jurisdiction of the High Court to grant declarations as to the best interests of incapacitated adults were civil proceedings to which the Civil Procedure Rules applied. Although not assigned to any division, having regard to their nature and the issues raised within them, such proceedings were more suitable for hearing in the Family Division.
Accordingly, those proceedings should be commenced, and would be determined, as follows:


(a) Permanent vegetative state cases should be issued in the principal registry of the Family Division and would be determined by the President of the Family Division or by a judge nominated by her. Interlocutory applications would be heard by the President or by the nominated judge.
(b) Other proceedings might be commenced in any registry but must be determined by a judge of the division. Interlocutory applications were to be heard by a judge of the division.
Practice Note: Declaratory proceedings: Medical and welfare decisions for adults who lack capacity ((2001) 2 FLR 158), dated May 1, 2001 and issued by the Official Solicitor, provided valuable guidance in relation to those proceedings and should be followed.

Judges:

Dame Elizabeth Butler-Sloss, President of the Family Division

Citations:

Times 04-Jan-2002, [2002] 1 WLR 325

Jurisdiction:

England and Wales

Citing:

Cited – Practice Note: Declaratory proceedings: Medical and welfare decisions for adults who lack capacity 2001
. .

Cited by:

Cited – A (a Patient) v A Health Authority and Others; In re J (a Child); Regina (S) v Secretary of State for the Home Department and Another CA 24-Jan-2002
The case asked how cases involving disputes as to the care of children, and of the treatment of adults claimed to be mentally incompetent. Where the issues were solely ones of public law, then they should be heard by way of judicial review in the . .
Cited – McFaddens (A Firm) v Platford TCC 30-Jan-2009
The claimant firm of solicitors had been found negligent, and now sought a contribution to the damages awarded from the barrister defendant. They had not managed properly issues as to their clients competence to handle the proceedings.
Held: . .
Lists of cited by and citing cases may be incomplete.

Health, Family

Updated: 17 July 2022; Ref: scu.167325

Commissioners of Customs and Excise v A; A v A: FD 18 Apr 2002

The husband had been convicted of trafficking in cannabis, and an order had been made confiscating his assets. His wife had already petitioned for divorce and begun ancillary relief proceedings. She claimed that her interest in the house under section 24 of the Act was protected. The receiver sought sale of the house to recover the sum ordered.
Held: The section under the 1994 Act did protect the interest of the wife. Her right to occupy the house under the 1973 Act created an interest over and above her financial interest, and that interest was protected by section 31(4). There had to be a right and that right had to be ‘in’ the property. She claimed a similar protection under the Human Rights Act. Despite the risk of the husband being unable to satisfy the confiscation order, and thus be returned to prison, the proper order in this case was to vest the entire house in the wife’s name.

Judges:

Mr Justice Munby

Citations:

Times 09-May-2002

Statutes:

Matrimonial Causes Act 1973 24, Drug Trafficking Act 1994 31(4) 62(5)(a) 62(3), European Convention on Human Rights Art 8 Pro 1

Jurisdiction:

England and Wales

Customs and Excise, Family, Human Rights

Updated: 17 July 2022; Ref: scu.170297

H v W: FD 17 Jul 2019

Two applications arising out of an arbitration of financial disputes between the parties following the end of their marriage.

Judges:

Ms Clare Ambrose

Citations:

[2019] EWHC 1897 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 17 July 2022; Ref: scu.639773

WF v NF and Others: FD 2007

Citations:

[2007] EWHC 3050 (Fam)

Jurisdiction:

England and Wales

Cited by:

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

Family

Updated: 17 July 2022; Ref: scu.441619

Akinnoye-Agbaje v Akinnoye-Agbaje: CA 15 Jun 2007

Renewed application for leave to appeal against order made under 1984 Act.

Judges:

Wall, Wilson LJJ

Citations:

[2007] EWCA Civ 681

Links:

Bailii

Statutes:

Matrimonial Proceedings and Property Act 1984

Jurisdiction:

England and Wales

Cited by:

Leave – Agbaje v Agbaje CA 20-Jan-2009
The court was asked as to the operation of section 10 of the 1984 Act where the marriage had been dissolved abroad. W had obtained an order under the 1984 Act though the parties had divorced in Nigeria.
Held: Leave was granted and the . .
See Also – Agbaje v Akinnoye-Agbaje SC 10-Mar-2010
The parties had divorced in Nigeria, but the former wife now sought relief in the UK under section 10 of the 194 Act. The wife said that she lived here, but the order made in Nigeria was severely detrimental requiring her either to live here in . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 17 July 2022; Ref: scu.270398

B-Q (A Child): CA 30 Apr 2008

Father’s appeal against residence order – possible mistake by CAFCASS and by judge in power to attach power of arrest to injunction.

Judges:

Thorpe LJ, Charles J

Citations:

[2008] EWCA Civ 586

Links:

Bailii

Jurisdiction:

England and Wales

Children, Family

Updated: 15 July 2022; Ref: scu.268704

MH, SB, MB v Local Authority (Supplemental Judgement): FD 3 Aug 2001

The effect of section 12(5)(b) of the Criminal Justice and Court Services Act 2000 was to continue the appointment of a child’s guardian ad litem after the making of a supervision order until the order expired or the guardian’s appointment was terminated by the court. His functions should be carefully defined to provide a specific and identified role and there should be no duplication or confusion between the role of the local authority and that of the guardian.

Judges:

Mr Justice Wall

Citations:

Times 15-Nov-2001, FPC 178/00162/163 and FPC 96 OO/8899

Statutes:

Criminal Justice and Court Services Act 2000 12(5)(b), Children Act 1989

Jurisdiction:

England and Wales

Family, Children

Updated: 15 July 2022; Ref: scu.166189

Hutton v Harper: HL 9 Mar 1876

Held (aff. judgment of Court of Session) that the proclamation of banns is one of the functions and duties of the office of minister of a church erected into a parish church under the Act 7 and 8 Vict, c. 44, for the district attached thereto as a parish quoad sacra.

Citations:

[1876] UKHL 740, 13 SLR 740

Links:

Bailii

Jurisdiction:

Scotland

Family

Updated: 15 July 2022; Ref: scu.639637

Thomas, Regina (on the Application of) v Ministry of Defence: Admn 22 May 2008

The claimant had the benefit of a pension sharing order but had not yet reached the age when, under the impugned provision, payment of the pension can be made to her yet her ex-husband is being paid his share notwithstanding, as I understand it, that he is only about 50 years old. She sought judicial review of the decision by the respondent not to make payment to her of any share of the sums paid to her former husnband.
Held: The request for a review was denied: ‘I simply do not see how a pension sharing order converts the sum payable to the Claimant under the order to pay.’

Judges:

Wyn Williams J

Citations:

[2008] EWHC 1119 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Regina (on the Application of Smith) v Secretary of State for Defence, Secretary of State for Work and Pensions QBD 26-Jul-2004
The claimant was divorced from her husband, a member of the armed forces, and was to receive a share of his pension. She complained that although he had been able to take his share of the pension early, she had been obliged to wait.
Held: . .
Lists of cited by and citing cases may be incomplete.

Family, Discrimination

Updated: 15 July 2022; Ref: scu.268003

CC v AB: QBD 4 Dec 2006

The claimant sought an order to prevent the defendant and others from making it known that the claimant had had an adulterous relationship with the defendant’s wife.

Judges:

Eady J

Citations:

[2006] EWHC 3083 (QB), [2007] EMLR 11, [2007] Fam Law 591, [2007] 2 FLR 301

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Bonnard v Perryman QBD 1891
The libel in issue was a very damaging one. Unless it could be justified at the trial it was one in which a jury would give the plaintiff ‘very serious damages’. The court was asked to grant an interlocutory injunction to restrain publication.
Cited – Tse Wai Chun Paul v Albert Cheng 13-Nov-2000
(Court of Final Appeal of Hong Kong) For the purposes of the defence to defamation of fair comment: ‘The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or . .
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .

Cited by:

Cited – Mosley v News Group Newspapers Ltd QBD 24-Jul-2008
The defendant published a film showing the claimant involved in sex acts with prostitutes. It characterised them as ‘Nazi’ style. He was the son of a fascist leader, and a chairman of an international sporting body. He denied any nazi element, and . .
Lists of cited by and citing cases may be incomplete.

Family, Media, Human Rights

Updated: 14 July 2022; Ref: scu.247986