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Parents Who Simply Cannot Cope Don't Deserve Condemnation

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Through no fault of their own, some parents are simply incapable of providing the care and stability that all children need whilst growing up. As one case showed, however, the approach of family judges is not to condemn but to seek solutions that enable children to continue living in the bosom of their families.

The case concerned two children, aged four and five, whose mother suffered mental health difficulties, in part due to her own unhappy childhood. Unable to cope, she tended to smack and shout at them. They suffered bumps and bruises because she did not keep a proper eye on them. The state of the family home was very poor and the children were sometimes dirty and not dressed properly.

After social workers intervened, the mother sensibly recognised how bad things had become and accepted that she could not be the children’s primary carer. They went to live with their aunt and uncle, who provided them with a wonderful home. The local authority applied to the Family Court for special guardianship orders which would regularise that arrangement.

In ruling on the matter, the Court’s primary consideration was the children’s welfare. They were entitled to respect for their private and family lives and, although it was obvious that they could not return to live with their mother, their aunt and uncle had transformed their own lives in order to provide them with a stable home, within their natural family, where they were thriving.

Granting the orders sought, the Court noted that the couple had encouraged regular contact between the children and their mother, who undoubtedly loved them and was doing her best to conquer her difficulties. Close contact between them and their older sibling, who was living with another family member, had also been maintained.

The special guardianship orders meant that the children would, throughout their childhood, remain settled with the aunt and uncle, who would have overriding parental responsibility for them.

Divorce and the Increasing Use of Arbitration – Court of Appeal Test Case

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Amidst the COVID-19 pandemic it has become even more popular to seek resolution of financial issues arising from divorce via private arbitration rather than formal court proceedings – but to what extent are arbitration awards binding and enforceable? The Court of Appeal confronted that issue in a guideline case.

A divorcing couple who, due to the pressure on judicial time, faced a potentially long delay in receiving a court hearing instead took the quicker route of submitting their financial differences to arbitration. That procedure had the added advantage of being conducted away from the eyes of the media. They signed an agreement whereby they accepted that the arbitrator’s award would be final and binding.

The husband was dissatisfied with aspects of the arbitration award concerning his housing needs, the distribution of pensions and the amount of maintenance he was required to pay his ex-wife. He applied to a judge either for permission to appeal against the award or for a direction that it should not be given effect by an order under the Matrimonial Causes Act 1973. In rejecting his application, however, the judge emphasised the importance of arbitration awards being treated as final.

In ruling on the husband’s challenge to that outcome, the Court noted that the case raised an important point of principle. It was a common misconception that arbitration as an alternative to court process is the purview of the rich in search of privacy. The backlog of cases arising from the pandemic meant that arbitrations were likely to become a prevalent means of resolving even modest-value cases.

It was of the utmost importance that potential users of the arbitration process were not deterred from doing so by, on the one hand, doubts as to the certainty and enforceability of awards or, on the other, concerns that the consequences of mistaken or unfair awards may be inescapable.

In ruling that the husband’s application could succeed only if he were able to show that the arbitrator’s decision was seriously or obviously wrong, or that it was based on a fundamental error or errors that leapt from the page, the judge had applied too high a test. Noting that the overriding objective of arbitration is to achieve fairness, the Court found that the husband was entitled to relief if he could establish that the arbitrator’s award was simply wrong.

The husband’s application was sent back for redetermination by another judge. Noting the impact that growing legal costs was likely to have on the modest marital pot, the Court implored the couple to seek a negotiated settlement rather than engaging in further litigation.

Buying a Home With Your Partner? Legal Advice Today Saves Heartache Later

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Couples who buy a home together tend to assume that true love lasts forever and that the property should be owned in equal shares. As a High Court case showed, however, that is one very good reason why they should always consult a solicitor, whose job it is to take a more sanguine view.

The case concerned a mother of four who was never formally married to her partner under English law, although they had entered into an Islamic form of marriage. She was the long-term tenant of a council property which they acquired at a 45 per cent discount under the ‘Right to Buy’ scheme with the assistance of a mortgage. Very soon afterwards, he terminated the relationship and left the property. He launched proceedings, seeking a declaration that he owned half the property.

The woman resisted the claim on the basis that he had placed her under pressure to purchase the property and that, had she been aware of his lack of commitment to their relationship, she would never have entered into the transaction. She would instead have remained a secure tenant of the property. Following a hearing, a judge accepted her evidence and ruled that she was entitled to a 90 per cent beneficial interest in the property and her partner 10 per cent.

In upholding the partner’s appeal against that outcome, the High Court noted that the property was conveyed to the couple as joint tenants to be held in equal shares. All the documents relevant to the transaction indicated that that was their common intention at the time. In that respect, the evidence was all one way.

The Court had no doubt that the woman would not have agreed to the property’s purchase, or to it being placed in joint names, had she known of her partner’s view that their relationship was essentially over. However, she had not put forward a formal case that his conduct amounted to fraud, deceit or misrepresentation. With regret, the Court declared that they had equal beneficial shares in the property.

Cross-Border Child Abduction and Habitual Residence – Guideline Ruling

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A parent who wishes to move from one country to another with his or her child must first obtain the consent of the parent left behind. That principle of international law is easily stated but, as a guideline Court of Appeal ruling showed, applying it in a way that protects the child’s welfare is often a much more complicated matter.

The case concerned two children, aged six and eight, who were born in Germany, where they spent the first years of their lives. Both their parents were also born in Germany. After the parents’ marriage came to an end, the father agreed that the mother could move to England with the children for 12 months or so.

After disagreements arose concerning the level of contact between the children and their father, the parents engaged in mediation. An approximate date for the children’s return to Germany was agreed and a letter of intent signed by the parents stated in terms that the children’s home would remain in Germany.

The mother, however, later announced that she would not be returning to Germany with the children. She had by then formed a relationship with a man in this country, whom she had since married, and was heavily pregnant with his child. The children had settled quickly in England and were doing well at English schools.

The father’s response to the mother’s decision was to launch proceedings under the 1980 Hague Convention, which enshrines the international ban on cross-border child abduction. In ordering the mother to return the children to Germany, a judge found that they remained habitually resident in the country of their birth and it would not be intolerable for them to go back there.

In upholding the mother’s appeal against that outcome, the Court noted that she had always been the children’s primary carer and that they had predominantly lived in England for a year prior to her decision. Whilst not diminishing the importance of their links to Germany, the Court found that the extent of their integration and the stability of their lives with their mother in England meant that they had become habitually resident in this country. The father’s application was dismissed.

Court Urges Peace on Unmarried Couple at War Over Family Business

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Unmarried couples should be under no illusions that they have legal rights equivalent to those who have tied the knot. The point could hardly have been more powerfully made than by a case concerning an unmarried former couple whose close-knit life together yielded three children and a family business.

During their relationship, the couple were the sole directors and equal shareholders of a company that ran a vehicle repair and MOT garage. Had they been married, the value of the business would have formed part of the financial pot to be divided between them on divorce. As their relationship was never solemnised, however, the option of divorce proceedings was not open to them.

After the relationship ended, the man took steps to transfer the company’s business to a new corporate vehicle which he wholly owned. He did so without the woman’s agreement. She responded by launching proceedings under Section 994 of the Companies Act 2006 on the basis that he had, by his unilateral move, unfairly prejudiced her position as a shareholder.

Ruling on the matter, the High Court noted that the man did not dispute that claim and had been ordered to purchase the woman’s 50 per cent shareholding in the company. The value of that shareholding was, however, not agreed and there was a risk that the costs of the proceedings would be disproportionate to the modest value of the business.

After hearing expert valuation evidence, the Court took a broad-brush approach to the issue and found that £45,500 represented a fair price that the man should be required to pay for the woman’s shares. Noting the commercial realities of the dispute, however, the Court urged the couple to settle their differences.

The woman could only receive what the man was able to pay and forcing him into bankruptcy would be futile. A fair division of their joint assets in a manner that secured both of their futures, and most importantly that of their children, would ultimately be in the best interests of all concerned.

COVID-19 and Parental Contact With Children in Care – Guideline Ruling

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How, if at all, is the duty of local authorities to allow children in their care reasonable contact with their parents affected by social distancing rules arising from the COVID-19 pandemic? The Court of Appeal confronted that issue in a guideline case.

The case concerned three young children who were taken into interim care after one of them suffered a broken leg, an injury which was considered likely to have been inflicted. The mother was in the pool of potential perpetrators and the children were therefore taken from her care and sent to live with their maternal grandmother.

Until lockdown was announced in March 2020, the children had face-to-face contact with their mother three times a week. As the pandemic took hold, however, the council’s contact centres were shut down and the mother’s only contact with her children became indirect, via telephone and video calls.

The council took the view that direct contact could not be managed in a safe manner in that the children were too young to be expected to socially distance themselves from their mother. It persisted in refusing direct contact after lockdown rules were changed so as to permit ‘social bubbles’ in which two households could meet with each other exclusively as if they were one household.

The mother applied for a contact order on the basis that professionally supervised face-to-face meetings could take place between her and the children in a local park. Her application was rejected by a judge, who noted that, in such unprecedented times, it was difficult to assess what level of contact would be ‘reasonable’ within the meaning of Section 34(1) of the Children Act 1989.

The judge expressed enormous sympathy for parents whose contact with their children was restricted during the pandemic. Their situation was similar to that of patients dying in hospital being denied visits from friends and family, grandparents being unable to hug their grandchildren and mourners being prevented from attending loved ones’ funerals.

Amidst the unprecedented crisis, however, he found that the council was entitled to have regard to its depleted human and other resources. There was nothing so unusual about the mother’s case to justify an exception being made to the council’s policy, whilst lockdown continued, of permitting only indirect contact between parents and children in care.

Ruling on the mother’s appeal against that outcome, the Court noted that the local authority had recently agreed to a resumption of face-to-face contact once a week. That rendered the case academic in practical terms, but the Court nevertheless heard the appeal on the basis that it raised issues of wider importance.

Upholding the mother’s appeal, the Court observed that, by the time the judge came to make his decision, social distancing was no longer an absolute obstacle to face-to-face contact between her and her children. The evidence did not support his conclusion that no direct contact at all was possible.

Giving guidance for the future, the Court emphasised that contact arrangements must be considered on a case-by-case basis with the welfare of children always treated as the paramount consideration. There was no doubt that face-to-face contact would be in the children’s best interests if it could be achieved. Rather than deferring to the council’s policy on the basis that it was reasonable, the judge was required to form his own view as to what level of contact was appropriate.

The Court concluded that the ordinary principles governing applications for contact with children in care continue to apply during the pandemic, even though outcomes may well be affected by the practical difficulties that are being faced.

Judge Breaks Deadlock Between Unmarried Ex-Couple With Children

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When long-term relationships between unmarried couples break down, disentangling their property and financial affairs can be challenging, particularly where children are involved. As one case showed, however, a clean break is often the best option for all concerned.

The case involved a middle-aged couple who had continued to live uncomfortably under the same roof for more than three years after their relationship ended. Their oldest child had grown up and gone to university but their 14-year-old son still lived in the house with them amidst an increasingly fraught atmosphere. The woman largely inhabited an upstairs bedroom. She said that she felt unwelcome elsewhere in the house and was finding her situation increasingly intolerable.

The four-bedroom house, which they had bought together, was worth about £440,000. Although he for a long time disputed the point, the man eventually agreed that they each beneficially owned 50 per cent of the property. The woman, who earned a good living as an accountant, was in a stronger financial position than the man, who had been out of work for five years due to health difficulties.

The woman launched proceedings, seeking an order that the property be sold and the proceeds equally divided so that they could move on with their lives. The man, however, argued that their son’s welfare demanded that a sale be put off until he turned 21 or finished his education, whichever was the later.

Ruling on the matter, a judge noted that the boy’s school had expressed concern that his very difficult home environment was not conducive to his welfare. He needed stability and security and to be protected from exposure to his parents’ disputes. Delaying a sale of the property would also require the woman to continue living for some years in a house where she felt uncomfortable, excluded and unwanted.

Directing that the house be put on the open market as soon as possible, the judge noted that this was not a divorce case in which she had to strive to achieve financial or lifestyle parity between the higher-earning woman and the lower-earning man. His parents had given him generous financial support and had paid the boy’s school fees. The boy did not require to live in a four-bedroom house and the couple each had equity in the house of up to £170,000 which should enable them to purchase more modest properties in the area.

Don't Even Consider a Foreign Adoption Without Specialist Legal Advice

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Adopting children from abroad can complete families and be of great benefit to all concerned. However, as a High Court case showed, it is fraught with legal pitfalls and should not be attempted without first taking specialist legal advice.

The case concerned a British citizen who adopted a child in Iran under Iranian law. The child had thrived in the adoptive placement. The parent launched proceedings in London, seeking recognition of the adoption in this country. The Home Office opposed the application on the basis that the criteria for recognition specified in the Adoption and Children Act 2002 had not been met.

Ruling on the matter, the Court noted that Iran has not ratified the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoptions. It is also not one of the countries where adoption is recognised by operation of the Adoption (Recognition of Overseas Adoptions) Order 2013.

The parent was domiciled in Iran at the time of the adoption and it was not disputed that the child had been legally adopted in accordance with the requirements of Iranian law. However, the Home Office argued that adoption in Iran does not have the same essential characteristics as adoption in England and that recognition should, for that reason alone, be refused.

The effect of an English adoption is to sever the legal relationship between the child and his or her biological parents. Section 67 of the Act provides that, if an adoption order is made, the child will be treated as if born to the adopter(s). Adoption orders made in this country can only be revoked in highly exceptional and very particular circumstances and such revocations are extremely rare.

The Court noted that those principles differ starkly from the position under Iranian law, where an adoption order does not extinguish the legal relationship between a child and his or her biological father. The threshold for revocation of Iranian adoption orders is also set at a much less demanding level.

The Iranian adoption had provided the child with much-needed security and stability. However, in refusing to grant recognition, the Court observed that the case turned not on the child’s welfare but on the interpretation of the legal principles through which English law recognises foreign adoptions.

The Court observed that an application for an English adoption order in respect of the child could be made under Section 49(3) of the Act if it could be shown that the child had been habitually resident in this country for 12 months. Any interference with the human rights of the child and the parent arising from the refusal to recognise the Iranian adoption was, in the circumstances, justified.

Want to Adopt a Child From Overseas? Beware the Legal Pitfalls

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Adopting children from overseas is fraught with legal pitfalls and those who attempt to do so without first taking expert advice expose themselves to heartbreak. In one case, however, the High Court came to the aid of a British woman who adopted a little girl who was found abandoned beside a Ugandan roadside.

The girl appeared to be about eight months old when she was found. After attempts to trace her genetic parents or wider family failed, she was placed in the foster care of a British woman who had been living in Uganda for some years. After forming a strong bond with the child, the woman applied successfully to a Ugandan court to adopt her.

The woman wished to return to England, but the Home Office had refused to grant a visa in respect of the child, who was believed to be aged about six, on the basis that the UK does not automatically recognise Ugandan adoptions. The woman sought legal advice and applied for an order officially recognising the Ugandan adoption in England.

In granting the order sought, the Court found that the woman was domiciled in Uganda at the time of the adoption. Although her marriage to a Ugandan man had failed, she had been living in Uganda for over a decade and had intended to make it her permanent home. She had dual British and Ugandan citizenship and had only decided to return to England for pressing family reasons.

The Court was satisfied that she had legally adopted the girl in accordance with the requirements of Ugandan law and that the foreign adoption had the same essential characteristics as an English adoption. There was no public policy or other reason why the Ugandan adoption should not be recognised.

The final decision as to whether the girl would be permitted to enter the UK with her mother lay with the Home Secretary, but the Court’s ruling greatly improved the chances of the required visa being issued.

Secret Marriage Leads to Legal Complications – High Court Ruling

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It is not only in the realms of fiction that lovers choose to marry in secret, away from the gaze of their disapproving families. A highly unusual High Court case, however, showed the legal difficulties that can arise from such arrangements.

The case concerned a former couple who, without telling their families, went through a ceremony of marriage in Madrid in 1993. About a year later, after their families’ attitude to their relationship had mellowed, they went through a second marriage ceremony in London.

The marriage did not prosper and, after the man petitioned for divorce, decrees nisi and absolute were pronounced in 1997. The couple settled their financial differences shortly afterwards. Crucially, however, the petition and the decrees only referred to the English marriage, making no mention of the earlier Spanish marriage.

More than 20 years after those events, the woman asserted that she and the man remained husband and wife. The Spanish marriage, she argued, remained extant and could only be brought to an end by divorce proceedings in Spain. She did, however, indicate her willingness to consent to a divorce, provided that a very substantial financial settlement was made in her favour.

After the man launched proceedings, the Court found that the Spanish marriage was valid. Whilst the subsequent English marriage may have been important in emotional and social terms in bringing both sides of the two families together, it had no impact on the couple’s legal status. By then, they were already married.

Ruling on the matter, the Court found that the error on the face of the decrees, in giving the wrong date of the couple’s effective marriage, was one of process rather than substance. The decree absolute had the effect of bringing to an end their true legal marriage – the Spanish marriage – and they were thus validly divorced in 1997. In order to set the record straight, the Court directed that both decrees be rectified so as to state that it was the Spanish marriage that was being dissolved.

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