Family & Case Law

 

Contents

 

Family Law


Family Law Act 1996

 

Case Law


Introduction

 

Summaries

 

Family Law Act 1996

The Family Law Act 1996 came into force in 2000. It made substantial changes to the law on marital and relationship breakdown. Divorce, mediation, financial provision and pension rights will all be affected.

The Government has, however, postponed implementation of Part II of the Act, which introduces New Procedures for divorce and which encourages Mediation and conflict resolution for divorcing couples. No date has been set for implementation (as at January 2000).

Part IV of the Act, covering new provisions on Domestic Violence, came into force in October 1997. It introduced Non-molestation and Occupation Orders which affect property and tenancy rights and which may be made during family proceedings.

For information on the domestic violence provisions see the relevant Family Proceedings Rules for Magistrates Courts or County Courts. Further information on Rules and Forms can be downloaded in PDF format from these pages.

See also the Domestic Violence Guide provided by the Judicial Office for England and Wales.

Read the full text of the Family Law Act 1996 for more information.

 

Case Law


It should be remembered that case law can be contradictory and is constantly evolving.
For more recent developments the Jordans Family Law website is recommended.

If you need a transcript of your own court hearing or judgement, click here

 

Full text

McKenzie Friends: O&Ors 22/06/05

Change of Residence: V v V 20/04/2004

Munby Judgement: F vs M 01/04/04

Please note that the Munby judgement may
now be known as: RE D (INTRACTABLE CONTACT DISPUTE: PUBLICITY) [2004] EWHC 727 (Fam)

Shared Residence: A vs A 04/02/04

Shared Residence: D v D 20/11/2000


Also see wikipedia Case Law section (which you can update)

Full text copies of Judgments available to Members Only.

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G (A Child) [2006] EWCA Civ 348
An appeal by a father against the rejection of a request that a CAFCASS officer have the opportunity to see his child to discuss the possibility of future direct contact with him.

The father was allowed indirect contact with his daughter which was supported by the mother. He agreed that there had to be a measured approach to direct contact in the future since he had not seen his daughter for some years. The suggestion that a CAFCASS officer should have meetings with the child to discuss direct contact was rejected by Waine HHJ. On appeal, Thorpe LJ agreed with the criticism of Waine HHJ's reason for the rejection which was that, were the child to agree to direct contact which the mother would most probably not allow, the court would be on a collision course with the mother which was a situation the judge wanted to avoid.

Thorpe LJ allowed the appeal on the basis that Waine HHJ had not pursued all possible avenues to the resumption of direct contact, and he ordered that the CAFCASS officer should resume meetings with the child.

Click here for more information.

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Re CH (Contact)[1996] 1 FLR 569, FD
A child born by artificial insemination by donor (AID) to a married couple was, in law, the child of the husband who consented to AID and, in principle, contact could not be refused on the basis that he was not the biological father.

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Domestic Violence and Contact
In re L and others is now the leading case from the Court of Appeal (published in The Times, 21 June 2000)

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Re H (A Child) [2005] EWCA Civ 1404 [Domestic Violence, Contact]
An Appeal dealing with how a finding of fact regarding domestic violence was not taken into account in a contact hearing.  That Re L (a child) (contact: domestic violence) [2000] 4 All ER 609, [2000] All ER (D) 827 applied.  That the father's contact application be remitted to the county court to be reheard by a different judge.

Re H (Contact: Enforcement) [1996] 1 FLR 614
Dealing with enforcement of contact in the family proceedings court (rather than the county court), by using s63 of the Magistrates Courts Act 1980. Two points emerge: (1) this particular procedure should only be used as a last resort. (2) in order to enforce the order it must be drawn as though it were an injunction, i.e. requiring a parent to produce the child at a specified date, time and place. The effect of this case is to apply to s63 enforcement by way of committal under the County Court Rules and the Rules of the Supreme Court.

See also In re M (a Minor) (Contact Order: Committal) (The Times 31 December 1998).

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Re P (Contact: Supervision) [1996] 2 FLR 314, CA
A reiteration of the principle that where children live with one parent it is almost always in their interests to have contact with the other parent, even when as in this case there had been violence. Also of importance is the court's willingness to grant contact in the face of the mother's hostility. The CA decided that the judge had made no error of principle but that he had made an error in the balancing exercise which rendered his decision not to order direct contact plainly wrong. He had given too much weight to the risk of emotional harm to the children through deterioration in the mother's health due to her stress and anxiety over contact, and insufficient weight to the importance of the children maintaining direct contact with their father. The Court of Appeal ordered supervised contact not exceeding two hours on not less than three occasions per year. (There was psychiatric evidence for the mother that her health had been and would be affected and further evidence by way of the Official Solicitor's child psychiatrist which suggested the level of contact, which the CA finally substituted as appropriate).

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Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124, CA
The welfare of the child is the paramount consideration, the court being concerned with the interests of the mother and father only insofar as they bear on the welfare of the child. It is almost always in the interests of the child whose parents are separated that he or she should have contact with the parent with whom the child is not living. The court has power to enforce orders for contact, which it should not hesitate to exercise where it judges that it will overall promote the welfare of the child. Infrequently cases do arise in which a court is compelled to conclude that in the existing situation an order for immediate direct contact should not be ordered because to do so would injure the welfare of the child. In such cases where direct contact cannot for the time being be ordered, it is highly desirable that there should be indirect contact so that the child grows up knowing of the love and interest of the absent parent with whom, in due course, direct contact should be established. The judge ordered indirect contact, requiring the mother to send the father:

  1. photographs of the child every three months
  2. copies of all nursery or playgroup reports
  3. information about any serious illness
  4. to accept delivery of cards and presents for the child through the post, read and show the child any communication, and give him any presents.

The CA found that s 11(7) of the Children Act 1989 conferred on the judge the powers to impose these conditions, even to impose positive obligations requiring the mother to perform an act - to read the letters to the child. It would be quite wrong to give her the power of censorship. If she found anything untoward in the letters, that the father abused this privilege, the mother could approach the court and the order could be varied accordingly. The court has ample power to compel one parent to send photographs, medical reports and school reports - and in a proper case the court could require the mother herself to write reports

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Re R (Contact: Leave) (1996) The Times, July 23, CA
Requirements to obtain leave imposed in 1992 by an order made under s91(14) of the 1989 Act. Father appealed against the dismissal of his application for leave to make a contact application. Bracewell J said that he judge had not been referred to RE M (Care: Contact: Grandmother's Application for Leave) [1995] 2 FLR 86 which gave a clear test for determining applications for leave. In the context of the general principle that a child should have contact with an absent parent unless there were cogent reasons to the contrary, the judge had not balanced the various factors in order to determine whether the father had an arguable case with a real prospect of success. Had he done so he would have been impelled to conclude that there was a serious issue to be tried.

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Re S (Contact: Grandparents) [1996] 1 FLR 158, CA
This case is noted on two points: (1) as a reminder of how positions can become entrenched if family proceedings are not firmly handled from the outset: and (2) as a reminder that the court should not accede to the implacable opposition of a parent to contact where other factors indicate that contact would be in the child's interests. The daughter when seven years old had made allegations indecent assault against the father. Prior to this the father and paternal grandparents had had regular contact. For the following two and a half years the grandparents struggled to get contact to their granddaughter, culminating in a decision not to order contact. The mother's hostility and the judge's confidence that in time she would change her mind were factors. The CA found that they did not outweigh the judges finding that three was a real risk that the child would suffer significant harm if contact was not re-established.

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Change of Surname
Case law on changes of surname for children changes frequently. Leading cases include:

  • Dawson v Wearmouth (reported in The Times, 26 March 1999)
  • In re W (a Child) etc (reported in The Times, 5 August 1999)

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Re S (Parental Responsibility) [1995] 2 FLR 648, CA
Besides giving a resume of other authorities setting important precedents this case adds a new dimension; the loss of self-esteem for the child who has a father without parental responsibility. This is a major authority on parental responsibility.

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Re H (Parental Responsibility Order: Maintenance) [1996] 1 FLR 867, CA
A refusal to make such an order is not to be used as a means of coercing a reluctant parent into payment of maintenance for a child; the proper tests are attachment, commitment and motive. The approach of the judge, of adjourning the case so that the father could demonstrate his commitment to the children by assisting in their financial upkeep, had been wrong. The degree of devotion the father had shown towards the children demonstrated his commitment. There were other measures which could be taken to ensure the father's financial contributions. The judge's decision to adjourn the application also ran counter to s 1(2) of the Children Act which addresses the prejudicial effects for the children of delay in deciding proceedings.

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Re H (Shared Residence: Parental Responsibility) [1995] 2 FLR 883, CA Re WB (Residence Orders) [1995] 2 FLR 1023
In both cases a man, who was neither married nor the biological father, had acted as a father to the children. Where the circumstances might justify the making of a joint residence order under s 11(4), then the fact that such an order would also confer parental responsibility was an additional ground to support the making of such an order (per CA). However, where such an order was not otherwise justified and would merely confuse children, the conferring of parental responsibility could not justify such an order, and the man would, if necessary, have to resort to wardship.

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Re C (Adoption: Parties) [1995] 2 FLR 483, CA
A father without parental responsibility is not a 'parent' for the purposes of the Adoption Act 1976 so that he does not have to be joined as a party as a matter of law. Whether such a father should be joined is a matter of discretion based on the facts of each particular case.

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K v M (Paternity: Contact) [1996] 1 FLR 312, Johnson J
This case provides an example of when blood tests might be refused. The mother had had an extra-marital affair but was now reconciled with her husband who could have been - and accepted himself as - the child's father. Irrespective of biological parentage, there was no prospect of the other man having contact and, accordingly, it was not in the child's interests to determine the issue of paternity.

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O v L (Blood Tests) [1995] 2 FLR 930, CA
This case provides an interesting illustration of circumstances when blood tests to determine paternity might not be in the child's interests. Even here, however, it was recognised that the time would come when the child's interests would require that issue to be determined.

See also In re O (Minor) (Blood tests: Constraint) (Times Law Report, March 2000).

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B v B (Child Orders: Restricting Applications) (1996) The Times, October 14, CA
The judge made a direction tied to a residence order that the father not be allowed to make an application in respect of his 10 year-old son without the leave of the court (Children Act 1989 s91(14)). The Court of Appeal allowed the father's appeal, saying that the s91(14) power should only be exercised with great care and sparingly because such an order would, inevitably, deny to a party the inalienable right to bring proceedings in the court and to be heard in matters which affected the children. It should not be used unless the parent had crossed that line from applications which were in one sense oppressive or might be said to be vexatious.

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Re V (Residence: Review) [1995] 2 FLR 1010, CA
(Not following FCWO's recommendations regarding a change of residence to the father) The FCWO and a child psychologists had recommended a change of residence whereby the boy who had expressed a strong wish to do so, would live with his father, rather than with his mother and siblings. The judge refused the father's residence application but directed a review in six months time. The father's appeal, on the grounds that the judge failed to give reasons for departing from the FCWO's recommendation was dismissed since it was held that the judge had, by giving full reasons for his judgement had provided a sound basis for the exercise of his discretion and departure from the welfare officer's report.

The following factors had been taken into account when considering a change of residence: the boy's emotional confusion, the father's lesser capacity to meet disciplinary and practical needs, the emotional support provided by siblings, the risk to the boy's emotional development in being brought up by his father, and the recommendation of a child psychotherapist favouring residence with the mother. It was stated that it would have been appropriate to have waited for the review rather than go to appeal. Reported cases where the court has departed from a court welfare report: Leete v Leete and Stevens [1984] Fam Law 21, H v H [1984] Fam Law 112, Re P (A Minor) (Contact)[1994] 2 FLR 374.

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Re D (Residence: Imposition of Conditions) [1996] 2 FLR 281, CA
A court cannot prevent a parent having the partner of their choice living with them by purporting to attach conditions to a residence order pursuant to s11(7) of the Children Act 1989. The true question is whether, having regard to the presence of the partner, it is right for the children to live with that parent.

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Poel v Poel [1970] 1 WLR 1469
A court will almost always allow an application by the mother to relocate abroad with the children, even though this will in many cases terminate the children's contact with their father.

See Removal from the Jurisidiction (first published in McKenzie 39, February 1999).

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Brixey v Lynas [1996] 2 FLR 499, HL and The Times Law Reports, 5 July 1996
This case concerns a four-year-old girl of unmarried parents, the mother being 20 and the father 18 when she was born. Lord Jauncey's opening remarks in his House of Lords judgement included the words " ...[this appeal] raises no questions of legal principle and is devoid of merit." Before the child's birth the mother already had another daughter by someone else. The father came from an affluent family and at the initial contested custody hearing when the child was 14 months old the sheriff reversed the interim order and gave custody to the father - though the child was never to be in the custody of the father since the mother appealed and from then onwards the child remained living with the mother.

The sheriff had taken into account the differences in the father's and mother's background. The father was comfortably middle-class; the child would have all the advantages of comfort, education and a strong and stable moral framework which the extended paternal family could offer. The mother's lifestyle was not particularly stable, although that was not unusual for a person of her background. The sheriff decided, "I think, however, that the best way of serving the child's best interest at this stage is to award custody to the father."

The mother's first appeal to 'sheriff principal' failed but her subsequent appeal to the Court of Session succeeded. The judge at the Court of Sessions was referred to a summary of Scottish case law "Mother's Custody of Child of Tender Years" and went on to say that though there was no presumption in favour of the mother there is nonetheless "a generally recognised belief that a mother is ordinarily better able, for whatever reason, to minister to a very young child's needs than is the father." He buttressed this reliance upon maternal preference by referring to the status quo whereby the child had lived with the mother throughout and also referred to the benefits of the child being with her half-sister.

Lord Jauncey delivered the House of Lords judgement. In reviewing the Court of Sessions judgement he supported the early-years maternal preference stance saying, "I should think that it did little more than state what sensible people with experience of the world, if all other things are equal, consider to be a natural fact of life." Lord Jauncey reacted to a challenge to this doctrine thus: "I cannot help feeling that these views begin to transcend the bounds of common sense." Much was made of the sheriff's failure in his judgement to address the positive aspects of the status quo, implying that he had failed to take these into account, and that neither had he considered the possibility of the father's situation changing if he formed another relationship and moved out of his parents' home. Had he done so "there might have been some substance in the argument."

Butler-Sloss LJ's Court of Appeal judgements in 1991 addressing the 'tender years doctrine', though not generally advancing the prospect of father custody for 'babies or toddlers', stand in stark contrast to the judgement of Lord Jauncey and his colleagues in this, our highest appellate court.

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