Family Law News 25th January– 8th February 2011

Domestic Violence

27.01.2011: A Supreme Court ruling has unanimously found that the term ‘domestic violence’ in homelessness cases includes psychological as well as physical abuse, aligning housing law with the existing definition used in family law. The ruling arose from the case of Yemshaw (Appellant) v London Borough of Hounslow (Respondent) [2011] UKSC 3, where a woman had left the marital home with her two young children complaining of the behaviour of her husband, such as shouting in front of the children, and expressing the fear that if she were to confront him she would be at risk of physical violence. The local housing authority had decided that as the woman had not left the home following a physical instance of domestic violence, her homelessness was intentional. The successful appeal extends the definition of domestic violence in relation to section 177(1) of the Housing Act 1996, which declares that those who are at risk of domestic violence are to be considered automatically homeless regardless of all other potential factors. Source http://www.familylaw.co.uk/articles/UKSCDomesticViolence27012011-865  

06.02.2011: The Charity Family Rights Group has published research examining how social workers deal with domestically abusive fathers. The research expresses concern that fathers, particularly those not resident with the children, are rarely given parenting assessments or offered services to help them confront their behaviour. Source: http://www.familylawweek.co.uk/site.aspx?i=ed79429.

Legal aid

29.01.2011: The Law Society’s Gazette has reported fears of some family solicitors that the withdrawal of legal aid in private law family cases may produce a significant rise in instances of child abduction from those who are unable to see their children, yet cannot afford the fees associated with litigation. There are reservations that the current proposals will increase the incidence of false allegations of domestic abuse to secure access to legal aid. Law Society President Linda Lee has also expressed her concern that genuine victims of domestic violence may face further trauma, as the granting of legal aid to victims but not alleged perpetrators may result in cases where a victim is cross-examined by their alleged abuser, who does not have legal representation. Source: http://www.familylawweek.co.uk/site.aspx?i=ed79154

06.02.2011: The Young Barristers’ Committee has established a petition to oppose proposals regarding reform of legal aid in the Ministry of Justice’s consultation. Source: http://www.familylawweek.co.uk/site.aspx?i=ed7915406.02.2011 

Court Cases of Interest

26.01.2011: Bird Vs Sec of State for Work & Pensions [2008] EWHC 3159
The High Court was asked to consider whether, when making a Liability Order against the non-resident parent under Section 33 of the Child Support Act 1991, and the only disputed matter is whether maintenance has been paid, a Court is obliged to make an Order if they are satisfied maintenance has been paid but by a method different to that specified by the CSA. Mr. Bird had been required to pay Mrs. Bird £34.10 a week by Transcash, with Mr. Bird’s liability beginning on 12th February 2003 and continuing to 1st July 2005, when his liability to pay was assessed as nil. The Secretary of State had obtained a liability order for the sum of £4016.20 for maintenance payments, excluding an agreement Mr. Bird had reached with Mrs. Bird to pay her share of the joint mortgage in place of maintenance payments. The High Court was not asked whether payment of the mortgage constituted child maintenance. They ruled that magistrates are not obliged to make a Liability Order if they are satisfied that payment has been made by a method other than that specified by the CSA. Source: http://www.familylawweek.co.uk/site.aspx?i=ed79014 

25.01.2011: Case: Abduction/Habitual Residence: DT V LBT [2010] EWHC 3177 (FAM). For the majority of a 10 year relationship, the British mother had lived with her two children in the UK while the Italian father lived and worked in Italy. In this time, the mother had endured considerable physical and emotional abused from the father. The father had forced the mother to move to Italy with the children, but she fled 9 months later via an Italian refuge. The father brought proceedings under the Hague Convention. The mother had suggested she would not return with the children, regardless of the Court’s direction. It was held that the high and present risk of harm to the children, regardless of whether the mother returned with them or not, would not be in the children’s interests. Source: http://www.familylaw.co.uk/articles/2010EWHC3177

03.02.2011: Case: Intractable Contact Dispute: CW v NT [2011] EWHC 76. Two sisters (aged 10 and 12) living with their mother had no direct contact with their father. The court considered i) an application by the paternal grandparents for contact, and ii) an application by the mother to commit the father to prison for contempt. Concerning the latter application, it was found that the father had breached an order banning him from entering the children’s school, or any other event or activity they may be expected to be in attendance at. Sentencing was adjourned in the father’s absence, and to allow him to offer mitigation. In relation to the application by the paternal grandparents for contact, despite finding that their support for the father and hostility to the mother had contributed to the problems experienced by all parties in the case, an occasion of supervised contact was ordered (to be revised when the matter returned to court). Source: http://www.familylawweek.co.uk/site.aspx?i=ed79321