The diversity of judgments by John Bolch

Divorce|Family Law | 18 Mar 2014 1

The publication of new family law judgments continues apace. Yesterday I came across six, dealing with a wide spectrum of family law matters. I thought it would be worth while having a quick look through them, to demonstrate the diversity of problems faced by our family law judges.

First up was Re M-M (A Child). This involved an application by a mother for financial provision for her child, under Schedule 1 of the Children Act 1989. Such applications are normally made where, as here, the parents were not married (if they had been then the divorce court can make appropriate financial provision). The court made an order providing for the father to pay a lump sum to the mother so that she could pay off various debts, and for the father to pay maintenance for the child (the father lived in France, so the child support scheme did not apply). Neither parent was satisfied with the order, so they both appealed. The mother claimed, amongst other things, that the maintenance did not meet the child’s needs, and the father claimed that it was far higher than the Child Support Agency would have required him to pay. The mother’s appeal was dismissed, but the father’s was allowed.

The next case was Ahmed and Another v Mustafa. The question that the Court of Appeal had to determine here was set out by Lord Justice McFarlane in the first paragraph of his judgment:

“Where a party to a marriage has taken a full part in contested financial provision proceedings, which have resulted in a comprehensive determination of all financial issues between the parties, what jurisdiction, if any, does the court in England and Wales have to prevent that person from seeking to pursue a fresh application for financial provision with respect to the same marriage in a foreign jurisdiction?”

The wife had commenced divorce proceedings here and, after a fully contested hearing, the court had made a final financial remedies order. The wife had then returned to her country of origin, the Turkish Republic of Northern Cyprus, where she issued fresh divorce proceedings and a fresh application for financial provision, giving her more than the English court had ordered. To stop this, the husband obtained an ‘anti-suit injunction’ here, restraining the wife from commencing or carrying on any proceedings in any jurisdiction. The wife appealed against this, but the Court of Appeal found that it “was proportionate and necessary when seen in the light of the wife’s conduct having given her one hundred per cent commitment to the English process”. Her appeal against the injunction was therefore dismissed.

The third case was X And Y (Children: Disclosure of Judgment to Police). This case involved long-running care proceedings concerning two children. The court had found that the father had inflicted injuries to one of the children. The police sought disclosure of the court’s judgment, and the father objected to this. After carefully considering the factors for and against disclosure, Mr Justice Baker concluded that the balance fell in favour of disclosure of the judgment to the police and the Crown Prosecution Service, subject to a restriction against further disclosure of the judgment or any information contained in it without permission of the court.

The fourth case was the child abduction case FB v IB. It involved two children, who were both born in New York, USA. In 2011 the mother brought them to England, where they have resided ever since. The father sought their return to the USA, saying that he did not consent to them permanently relocating here. The mother claimed that they were now habitually resident in this country. Mrs Justice Russell in the High Court found that the father did consent to the children moving to this country, and that they had integrated into the local community here, so that it would not be in their best interests to order their return.

Next up was Re L (A Child). Another care case, but this time dealing with a girl believed to be about thirteen years old who had been the victim of child trafficking, having been brought to this country unlawfully from Ghana. I won’t go into the details of this awful case, suffice to say that Mr Justice Baker made an order placing the girl in the care of the local authority.

Finally we had the case Chai v Peng. This was an application by a wife for further maintenance pending suit (i.e. maintenance pending the outcome of the divorce case). The husband, who primarily lives in Malaya, is apparently a very rich man. The wife, who lives here, has no significant assets. The wife commenced proceedings in England and the husband commenced proceedings in Malaya. Neither set of proceedings has yet got very far, despite being in existence now for around a year. Notwithstanding this, legal costs have already been incurred that Mr Justice Holman described as ‘eye-watering’: over £1 million by the wife alone. The husband had already made a payment to the wife, but she now sought further maintenance in the sum of £125,000 per month. Mr Justice Holman found that she could not ‘sensibly expect’ further provision at that rate, and made an order for the husband to pay £35,000 per month until the next hearing at the end of April, plus £100,000 for her legal costs.

And there we are. An example of the diversity of problems facing our family court judges every day.

Photo of the Royal Courts of Justice by Tony Hadnutt via Flickr under a Creative Commons licence.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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    1. Luke says:

      “Mrs Justice Russell in the High Court found that the father did consent to the children moving to this country, and that they had integrated into the local community here, so that it would not be in their best interests to order their return.”

      I understand why the Judge decided this because it’s not an easy decision, but sadly it is another example where it shows that it pays for a father to be as obstructive and uncooperative as possible from the start.

      Unfortunately because he was reasonable enough to consent to this move this has been used against him and he has now permanently lost regular access to his child.

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