Results: 33

• Valcheva v Babanarakis

  31 May 2018 (Case C-335/17); EU:C:2018:359; EU:C:2018:242; [2018] Fam 359; [2018] 3 WLR 1386; [2019] 1 FLR 302; [2018] WLR (D) 324, ECJ (President of Chamber R Silva de Lapuerta, Judges CG Fernlund, J-C Bonichot, A Arabadjiev, S Rodin Advocate General M Szpunar)

  Subsequent considerations : 1 positive. Subsequent citations: 1.
  CONFLICT OF LAWS — Jurisdiction under Council Regulation — Orders with respect to children

  CONFLICT OF LAWS — Jurisdiction under European Union Regulation — Orders with respect to children

  EUROPEAN UNION — Reference for a preliminary ruling — Judicial cooperation in civil matters
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  CONFLICT OF LAWS — Jurisdiction under Council Regulation — Orders with respect to children — Grandparent residing in Bulgaria applying to Bulgarian court for rights of access to grandchild residing in Greece — Concept of “rights of access” — Whether rights of access of grandparents to grandchild coming within scope of Council Regulation in order to determine whether court having jurisdiction to rule on application to be determined on the basis of Regulation or on basis of private international law rules — Council Regulation (EC) No 2201/2003, arts 1(2)(a), 2(7) (10)

  CONFLICT OF LAWS — Jurisdiction under Council Regulation — Orders with respect to children — Grandmother residing in Bulgaria applying to Bulgarian court for rights of access to grandson residing in Greece — Whether grandparents’ rights of access within scope of Council Regulation — Whether court with jurisdiction to be determined on basis of Regulation or on basis of rules of private international law — Council Regulation (EC) No 2201/2003, arts 1(2)(a), 2(7)(10)

  CONFLICT OF LAWS — Jurisdiction under European Union Regulation — Orders with respect to children — Grandmother residing in Bulgaria applying to Bulgarian court for rights of access to grandson residing in Greece — Whether grandparents’ rights of access within scope of Regulation — Whether court with jurisdiction to be determined on basis of Regulation or of rules of private international law — Council Regulation (EC) No 2201/2003, arts 1(2)(a), 2(7)(10)

  EUROPEAN UNION — Reference for a preliminary ruling — Judicial cooperation in civil matters — Regulation (EC) No 2201/2003 — Scope — Concept of ‘rights of access’ — Article 1(2)(a) and Article 2.7 and 2.10 — Rights of access of grandparents

  1 EU Enactment considered
• M v Carmarthenshire County Council

  06 Jun 2018 [2018] EWFC 36; [2018] Fam 303; [2018] 3 WLR 1126; [2018] 2 FLR 1375; [2018] WLR (D) 361, Fam Ct (Mostyn J)

  Subsequent considerations : 1 negative. Subsequent citations: 1.
  CHILDREN — Care order — Application to discharge

  EVIDENCE — Expert evidence — Admissibility
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  CHILDREN — Care order — Application to discharge — Mother applying to discharge care order — Local authority opposing application in reliance on social worker’s report of child’s attachment to foster parents — Test to be applied when considering discharge — Whether social worker’s report admissible as expert evidence — Whether care order to be discharged — Children Act 1989 (c 41), ss 1(3), 31, 39

  CHILDREN — Care order — Application to discharge — Mother applying to discharge care order — Local authority opposing application on basis of child’s attachment to foster parents — Test to be applied when considering discharge of care order — Whether local authority under positive duty to take measures to facilitate reunification of child and his blood family — Whether required to show continuation of care order necessitated by overriding requirement pertaining to child’s best interests — Whether paramount consideration of promotion of child’s welfare best served if raised by natural parent unless positively shown that his physical or moral health would thereby be endangered — Whether care order to be discharged — Children Act 1989 (c 41), ss 1(3), 31, 39

  EVIDENCE — Expert evidence — Admissibility — Children proceedings — Mother applying to discharge care order — Local authority opposing application in reliance on expert evidence in social worker’s report detailing child’s attachment to foster parents — Whether social worker’s report admissible as expert evidence — Whether “necessary” to assist the court to resolve proceedings justly — Whether expert evidence properly admitted — Whether applications to adduce such evidence to be determined with utmost rigour — Children and Families Act 2014 (c 6), s 13(6)

  CHILDREN — Care order — Application to discharge — Mother applying to discharge care order — Local authority opposing application on basis of child’s attachment to foster parents — Test to be applied on discharge application — Whether local authority under positive duty to facilitate reunification of child and his blood family — Whether required to show continuation of care order necessitated by overriding requirement pertaining to child’s best interests — Whether child’s welfare best served if raised by natural parent unless positively shown his physical or moral health would thereby be endangered — Whether care order to be discharged — Children Act 1989 (c 41), ss 1(3), 31, 39

  EVIDENCE — Expert evidence — Admissibility — Children proceedings — Mother applying to discharge care order — Local authority opposing application in reliance on expert evidence in social worker’s report detailing child’s attachment to foster parents — Whether social worker’s report admissible as “expert evidence” — Whether “necessary” to assist the court to resolve proceedings justly — Whether expert evidence properly admitted — Whether applications to adduce such evidence to be determined with utmost rigour — Children and Families Act 2014 (c 6), s 13(6)

  7 Case(s) considered

  2 Words & Phrases considered

  2 Statutes considered

• Mazhar v Lord Chancellor

  12 Oct 2017 [2017] EWHC 2536 (Fam); [2018] Fam 257; [2018] 2 WLR 1304; [2017] WLR(D) 680, Fam D (Ryder LJ sitting as a High Court judge)

  02 Oct 2019 [2019] EWCA Civ 1558; [2021] Fam 103; [2020] 2 WLR 541; [2020] 1 All ER 246; [2019] WLR (D) 533, CA (Sir Terence Etherton MR, Singh, Baker LJJ)

  Subsequent citations: 9.
  HUMAN RIGHTS — Breach of Convention rights — Judicial act

  HUMAN RIGHTS — Claimant alleging decision of judge breaching his Convention rights — Whether open to claimant to bring claim for declaration to that effect
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  HUMAN RIGHTS — Breach of Convention rights — Judicial act — Judge authorising removal of claimant to hospital under inherent jurisdiction — Claimant seeking declaration against Lord Chancellor that removal and detention unlawful and constituting breach of Convention rights by judicial act — Whether power to grant declaratory relief against Crown in respect of judicial act — Means by which claim for damages for breach of Convention right by judicial act to be brought — Whether court of co-ordinate jurisdiction able to hear claim — Whether Lord Chancellor vicariously liable for judicial act — Human Rights Act 1998 (c 42), ss 6, 7(1)(a), 8(1), 9(1)(c)(3), Sch 1, Pt I, arts 5, 6, 8 — CPR r 7.11

  HUMAN RIGHTS — Breach of Convention rights — Judicial act — Judge authorising removal of claimant to hospital under inherent jurisdiction — Claimant bringing claim seeking declaration against Lord Chancellor that removal constituting unlawful breach of Convention rights — Whether open to claimant to bring claim for declaratory relief against Crown in respect of judicial act — Human Rights Act 1998 (c 42), ss 7, 9, Sch 1, Pt I, art 5 — CPR r 7.11

  HUMAN RIGHTS — Claimant alleging decision of judge breaching his Convention rights — Whether open to claimant to bring claim for declaration to that effect

  HUMAN RIGHTS — Breach of Convention rights — Judicial act — Judge authorising removal of claimant to hospital under inherent jurisdiction — Claimant bringing claim seeking declaration against Lord Chancellor that removal and detention constituting unlawful breach of Convention rights — Whether open to claimant to bring claim for declaratory relief against Crown in respect of judicial act — Means by which claim for damages for breach of Convention right by judicial act to be brought — Whether court of co-ordinate jurisdiction able to hear claim — Human Rights Act 1998 (c 42), ss 7, 9, Sch 1, Pt I, art 5 — CPR r 7.11

  5 Case(s) considered

  1 Statute considered
• Proceedings brought by HR (with the participation of KO)

  28 Jun 2018 (Case C-512/17); EU:C:2018:513; [2018] Fam 385; [2018] 3 WLR 1139; [2018] WLR(D) 415, ECJ (President of Chamber JL da Cruz Vilaça, Judges E Levits, A Borg Barthet, M Berger, F Biltgen Advocate General N Wahl)

  Subsequent considerations : 1 positive; 1 neutral; most recently considered: 2022. Subsequent citations: 16.
  CONFLICT OF LAWS — Jurisdiction under Council Regulation — Orders with respect to children

  CONFLICT OF LAWS — Jurisdiction under European Union Regulation — Orders with respect to children

  EUROPEAN UNION — Reference for a preliminary ruling — Judicial cooperation in civil matters
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  Case index catchwords

  CONFLICT OF LAWS — Jurisdiction under Council Regulation — Orders with respect to children — Circumstances for determining child’s place of habitual residence — Council Regulation (EC) No 2201/2003, art 8(1)

  CONFLICT OF LAWS — Jurisdiction under European Union Regulation — Orders with respect to children — Unmarried Polish mother and Belgian father having child in Belgium — Parents separating and child living with mother in Belgium and seeing father regularly — Mother employed in Belgium — Child staying with mother and her family in Poland during holidays — Child speaking mainly Polish — Mother wishing to settle in Poland with child — Factors determining child’s place of habitual residence — Council Regulation (EC) No 2201/2003, art 8(1)

  EUROPEAN UNION — Reference for a preliminary ruling — Judicial cooperation in civil matters — Jurisdiction, recognition and enforcement of judgments in matrimonial matters and in the matters of parental responsibility — Regulation (EC) No 2201/2003 — Article 8(1) — Place of habitual residence of the child — Infant — Decisive circumstances for establishing that place of habitual residence

  3 Case(s) considered

  1 EU Enactment considered

• A v C (Hague Convention: Rights of Access) (B v C (Hague Convention: Rights of Access))

  30 Jul 2018 [2018] EWHC 2048 (Fam); [2018] Fam 399; [2018] 3 WLR 1562; [2019] 1 FLR 429; [2018] WLR (D) 534, Fam D (Cohen J)

  CHILDREN — Custody rights — Breach
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  CHILDREN — Custody rights — Breach — Rights of access — Maternal aunt residing in Poland applying for rights of access to child removed to England following death of mother — Whether rights of access of aunt coming within scope of Hague Convention — Child Abduction and Custody Act 1985 (c 60), Sch 1, art 21 — Council Regulation (EC) No 2201/2003, art 2(10)

  CHILDREN — Custody rights — Breach — Rights of access — Maternal aunt residing in Poland applying for “rights of access” to child removed to England following death of mother — Whether aunt having rights of access within scope of Hague Convention — Child Abduction and Custody Act 1985 (c 60), Sch 1, arts 5(b), 21

  CHILDREN — Custody rights — Breach — Rights of access — Maternal aunt residing in Poland applying for rights of access to child removed to England following death of mother — Whether aunt having “rights of access” within scope of Hague Convention — Child Abduction and Custody Act 1985 (c 60), Sch 1, arts 5(b), 21

  1 Case considered

  1 Words & Phrases considered

  1 Statute considered
• In re T (A Child) (Non-molestation Order)

  23 Nov 2017 [2017] EWCA Civ 1889; [2018] Fam 290; [2018] 2 WLR 1570; [2018] 1 FLR 1457; [2017] WLR (D) 781, CA (McFarlane, Davis, Hickinbottom LJJ)

  Subsequent considerations : 1 positive. Subsequent citations: 2.
  CHILDREN — Orders with respect to children — Non-molestation order

  INJUNCTION — Family proceedings — Non-molestation order
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  CHILDREN — Orders with respect to children — Non-molestation order — Local authority applying for order against mother and partner — Whether court seised of “family proceedings” — Whether court having jurisdiction to make order — Whether order justified — Family Law Act 1996 (c 27), ss 42(2)(b), 42A(1), 63(1)

  INJUNCTION — Family proceedings — Non-molestation order — Mother and her partner attempting to abduct child in foster care but not directly interacting with child — Injunction under inherent jurisdiction granted restricting their movements — Local authority subsequently seeking non-molestation order — Whether court having jurisdiction to make such order — Whether court seised of “family proceedings” — Whether actions of mother and partner amounting to molestation — Family Law Act 1996 (c 27) (as amended by Domestic Violence, Crime and Victims Act 2004 (c 28), s 1), ss 42(2)(b), 42A(1)

  3 Case(s) considered

  1 Words & Phrases considered

  1 Statute considered
• In re Briggs (Incapacitated Person)

  24 Nov 2016 [2016] EWCOP 48; [2017] Fam 207; [2017] 2 WLR 926; [2016] WLR (D) 634, Ct of Protection (Charles J)

  31 Jul 2017 [2017] EWCA Civ 1169; [2018] Fam 63; [2018] 2 WLR 152; [2018] 2 All ER 990; [2017] WLR (D) 535, CA (Sir Brian Leveson P, King, Burnett LJJ)

  Subsequent considerations : 2 positive. Subsequent citations: 8.
  MENTAL DISORDER — Incapable person — Deprivation of liberty

  LEGAL AID — Availability — Determination of patient’s best interests

  LEGAL AID — Availability — Incapacitated person’s representative
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  MENTAL DISORDER — Incapable person — Deprivation of liberty — Incapacitated person in minimally conscious state in hospital under deprivation of liberty authorisation — Application by person’s representative to determine whether in person’s best interests to continue to receive clinically assisted nutrition and hydration necessary for survival — Whether application brought under correct statutory provision — Whether issue relating to medical treatment to be taken into account in applying best interest requirement in deprivation of liberty safeguards — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 5 — Mental Capacity Act 2005 (as amended by Mental Health Act 2007, s 50, Schs 7, 9, para 2), s 21A, Sch A1, para 16

  LEGAL AID — Availability — Determination of patient’s best interests — Incapacitated person in minimally conscious state in hospital under deprivation of liberty authorisation — Application by person’s representative to determine whether in person’s best interests to continue to receive clinically assisted nutrition and hydration necessary for survival — Whether non-means tested legal aid funding available to incapacitated person’s representative — Mental Capacity Act 2005 (c 9) (as amended by Mental Health Act 2007 (c 12), s 50, Schs 7, 9, para 2), s 21A, Sch A1, para 16 — Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 (SI 2013/480), reg 5(1)(g) (as amended by Civil Legal Aid (Financial Resources and Payment for Services) (Amendment) Regulations 2013 (SI 2013/753), reg 2(2)(a))

  MENTAL DISORDER — Incapable person — Deprivation of liberty — Incapacitated person in minimally conscious state in hospital under deprivation of liberty authorisation — Application by person’s representative to determine whether in person’s best interests to continue to receive clinically assisted nutrition and hydration necessary for survival — Whether application brought under correct statutory provision — Whether issues relating to medical treatment to be determined under procedure for issues relating to deprivation of liberty — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 5 — Mental Capacity Act 2005 (c 9) (as amended by Mental Health Act 2007 (c 12), s 50, Schs 7, 9, para 2), ss 16, 21A, Sch A1

  LEGAL AID — Availability — Incapacitated person’s representative — Incapacitated person in minimally conscious state in hospital under deprivation of liberty authorisation — Application by person’s representative to determine whether in person’s best interests to continue to receive clinically assisted nutrition and hydration necessary for survival — Whether representative entitled to non-means tested legal aid funding — Mental Capacity Act 2005 (c 9) (as amended by Mental Health Act 2007 (c 12), s 50(7), Sch, 9, para 2), s 21A — Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 (SI 2013/480), reg 5(1)(g)

  3 Case(s) considered

  2 Statutes considered

  1 Statutory Instrument considered
• Hart v Hart

  31 Aug 2017 [2017] EWCA Civ 1306; [2018] Fam 93; [2018] 2 WLR 509; [2018] 1 FLR 1283; [2017] WLR (D) 585, CA (Lord Justice Lloyd Jones, Lord Justice Beatson, Lord Justice Moylan)

  15 Mar 2018 [2018] EWHC 549 (Fam); [2018] EWHC 549 (Fam), Fam D (Judge Wildblood QC sitting as a judge of the Family Division)

  Subsequent considerations : 1 positive; 2 neutral. Subsequent citations: 18.
  MARRIAGE — Divorce — Financial provision
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  MARRIAGE — Divorce — Financial provision — Identification of assets — “Non-matrimonial property” — Build-up of husband’s assets in decades prior to marriage — Judge awarding wife over one third of capital assets following parties’ separation in financial remedies order—Whether equal division of assets appropriate — Guidelines on court’s approach to non-matrimonial and matrimonial property when applying sharing principle — Matrimonial Causes Act 1973 (c 18), s 25(2) (as substituted by Matrimonial and Family Proceedings Act 1984 (c 42), ss 3, 48(2) and amended by Pensions Act 1995 (c 26), s 166(2) and Pensions Act 2008 (c 30), s 120, Sch 6, para 4)

  2 Case(s) considered

  1 Words & Phrases considered
• In re A (Children) (Adoption: Scottish Permanence Orders) (In re E (A Child) (Adoption: Scottish Permanence Orders), In re F (A Child) (Adoption: Scottish Permanence Orders), In re D (A Child) (Adoption: Scottish Permanence Orders), In the matter of A, B, C, D, E and F (Children))

  17 Jan 2017 [2017] EWHC 35 (Fam); [2018] Fam 177; [2018] 2 WLR 770; [2017] 2 FLR 995; [2017] WLR (D) 225, Fam D (Sir James Munby P)

  Subsequent considerations : 1 neutral. Subsequent citations: 2.
  ADOPTION — Adoption order — Scottish permanence order
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  ADOPTION — Adoption order — Scottish permanence order — Applications for adoption orders in respect of children subject of Scottish permanence order — Natural parents retaining exercisable rights of contact — Whether English court required to obtain consent of natural parents — Whether natural parents retaining parental responsibility — Whether natural parents entitled to be joined to proceedings — Children (Scotland) Act 1995 (c 36), ss 1, 2 — Adoption and Children Act 2002 (c 38), (as amended by Adoption and Children (Scotland) Act 2007 (Consequential Modifications) Order 2011 (SI 2011/1740), Sch 1, para 6), ss 47(6)(a), 52(1)(6), 105(2) — Adoption and Children (Scotland) Act 2007 (asp 4), ss 80, 81, 82, 83

  ADOPTION — Adoption order — Scottish permanence order — Applications for adoption orders in respect of children subject of Scottish permanence orders — Natural parents retaining exercisable rights of contact — Whether English court required to obtain consent of natural parents — Whether natural parents retaining parental responsibility — Whether entitled to be joined to proceedings — Children (Scotland) Act 1995 (c 36) (as amended by Human Fertilisation and Embryology Act 2008 (c 22), s 56, Sch 6, paras 48, 49), ss 1, 2 — Adoption and Children Act 2002 (c 38) (as amended by Mental Capacity Act 2005 (c 9), s 67(1), Sch 6, para 45 and Adoption and Children (Scotland) Act 2007 (Consequential Modifications) Order 2011 (SI 2011/1740), Sch 1, para 6), ss 47(6)(a), 52(1)(6), 105(2) — Adoption and Children (Scotland) Act 2007 (asp 4), ss 80, 81, 82, 83 — FPR r 14.3

  ADOPTION — Adoption order — Scottish permanence order — Applications for adoption orders in respect of children subject of Scottish permanence orders — Natural parents retaining exercisable rights of contact — Whether English court required to obtain consent of natural parents — Whether natural parents retaining “parental responsibility” — Whether entitled to be joined to proceedings — Whether Scottish local authority “adoption agency” — Whether to be joined to proceedings — Children (Scotland) Act 1995 (c 36) (as amended by Human Fertilisation and Embryology Act 2008 (c 22), s 56, Sch 6, paras 48, 49), ss 1, 2 — Adoption and Children Act 2002 (c 38) (as amended by Mental Capacity Act 2005 (c 9), s 67(1), Sch 6, para 45 and Adoption and Children (Scotland) Act 2007 (Consequential Modifications) Order 2011 (SI 2011/1740), Sch 1, para 6), ss 47(6)(a), 52(1)(6), 105(2) — Adoption and Children (Scotland) Act 2007 (asp 4), ss 80, 81, 82, 83 — FPR r 14.3

  3 Statutes considered

  1 Statutory Instrument considered
• F v M (Joint Council for the Welfare of Immigrants intervening)

  26 Apr 2017 [2017] EWHC 949 (Fam); [2018] Fam 1; [2018] 2 WLR 178; [2018] 1 FLR 1217; [2017] WLR (D) 594, Fam D (Hayden J)

  Subsequent considerations : 1 positive; 1 negative. Subsequent citations: 12.
  CHILDREN — Custody rights — Abduction
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  CHILDREN — Custody rights — Abduction — Father seeking to enforce order for child’s return to Pakistan — Child having been granted refugee status in United Kingdom — Whether grant of refugee status bar to court ordering child’s return — Whether mother’s allegations against father in asylum claim to be disclosed to court — Need to balance competing rights — Immigration Act 1971 (c 77) — Child Abduction and Custody Act 1985, Sch 1 — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 8 — Council Directive 2004/83/EC — Council Directive 2005/85/EC — Convention and Protocol relating to the Status of Refugees (1951) (Cmd 9171) and (1967) (Cmnd 3906)

  CHILDREN — Custody rights — Abduction — Pakistani mother and child entering United Kingdom and claiming asylum — Court by consent granting father’s application for return of child to Pakistan — Child granted refugee status in United Kingdom — Father seeking to enforce order for child’s return — Whether grant of refugee status bar to court ordering child’s return — Whether father able to challenge grant of refugee status — Whether mother’s allegations against father in asylum claim to be disclosed to court — Need to balance competing rights — Council Directive 2004/83/EC — Council Directive 2005/85/EC — Convention and Protocol relating to the Status of Refugees (1951) (Cmd 9171) and (1967) (Cmnd 3906)

  1 Case considered

  2 EU Enactments considered

  1 International Agreement considered