Hilary highlights

Family Law|April 2nd 2015

As we reach the end of the Hilary term, the second term of the legal year, I thought it might be interesting to look back at some of the most important decisions our courts have made thus far in 2015.

The New Year began with the President of the Family Division grappling, or continuing to grapple with, the case D (A Child), in which parents faced with the possibility of having their child adopted against their wishes could not initially get legal aid to be represented in the proceedings.

As I said at the time, the judgment included the memorable words from the President:

“The parents can be forgiven for thinking that they are trapped in a system which is neither compassionate nor even humane.”

An indication of the new reality of family justice post-legal aid cuts.

Just a week later the President was dealing with the topical issue of Female Genital Mutilation, or FGM, in the case B and G (Children) (No 2). He exhorted the courts to use every weapon in their “protective arsenal if faced with a case of actual or anticipated FGM”, although in this particular case he found that the local authority had not proved that the child concerned had been, or was at risk of being, subjected to FGM. This was certainly not the only topical issue with which the family courts had to deal, as the last case mentioned below will show.

Returning to the issue of legal aid, the Divisional Court rejected a challenge over the lawfulness of government changes to legal aid for domestic violence victims. In Rights of Women, R (On the Application Of) v The Lord Chancellor And Secretary of State for Justice the Rights of Women charity applied for judicial review to quash the regulations that set out what evidence victims of domestic violence have to provide in order to get legal aid for family cases, which they argued were preventing victims of domestic abuse from getting legal aid. This particular argument is still continuing, and hopefully common sense will eventually prevail, with the requirements being eased.

In February we saw once again what difficult decisions our family judges are regularly faced with, when Mr Justice Cobb in the Court of Protection authorised the sterilisation of a mother of six with learning difficulties. The 36-year old woman has Autistic Spectrum Disorder and specialists said she had physical health problems that could put her life in danger if she became pregnant again. Mr Justice Cobb authorised the health authority and social services to use forced entry into the woman’s home and ‘necessary restraint’ so that she could be taken to hospital for the sterilisation procedure. He emphasised, however, that the Court of Protection will only intervene in the life of a person who lacks capacity where it is demonstrated that it is in their best interests to do so.

Also in February the President severely criticised managers at a local authority over the way they handled a case involving a child who had been placed in foster care at birth because of the father’s links to the English Defence League. The President dismissed the authority’s adoption application and ordered that the child be returned to his father. As he quite rightly said, the courts are not in the business of social engineering.

One of my favourite cases this term was Gray v Work decided by Mr Justice Holman 6 March. There were a number of aspects to this financial remedies case, but the one that I liked best was when Mr Justice Holman told the multi-millionaire parties that there was “plenty of money to go round”, that there were no difficulties and that it “should be so easy”, adding that: “People who are struggling to afford two-bedroom houses have difficulties.” An excellent reality check.

A few days later the Supreme Court handed down its decision in Wyatt v Vince, in which it allowed the wife to proceed with her financial remedies application, despite the fact that it had been made some eighteen years after the parties were divorced. The case caused quite a stir in the media, although we must not get too carried away. As Lord Wilson made clear, the wife is only likely to be entitled to a modest award, at most.

Finally I come to the other ‘topical issues’ case that I referred to above. On 27 March Mr Justice Hayden handed down his decision barring five teenage girls who had shown an interest in going to Syria from travelling abroad. The girls – two aged 15 and three aged 16 – were made wards of court, had their passports removed and were banned from leaving England and Wales. At the end of his judgment Mr Justice Hayden commented upon the use of the family court for dealing with unusual issues.

He said:

“The family court system, particularly the Family Division, is, and always has been, in my view, in the vanguard of change in life and society. Where there are changes in medicine or in technology or cultural change, so often they resonate first within the family. Here, the type of harm I have been asked to evaluate is a different facet of vulnerability for children than that which the courts have had to deal with in the past.”

Let us hope that the family court continues to rise to the challenges thrown at it.

The courts will be sitting again on 14 April, and who knows what interesting decisions the new term will bring? Until then, though, do enjoy your Easter break.

Photo by Ronnie Macdonald via Flickr

Author: Stowe Family Law

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