High Court: Family Division judgments, 2010

In personal-welfare proceedings in the Court of Protection, the general rule is that there is no order as to costs. The court may depart from that rule where…

When deciding whether to make or continue a forced marriage protection order, the court must realistically assess the protected person’s health, safety and…

Under section 54 of the Human Fertilisation and Embryology Act 2008, payments exceeding reasonable expenses in a foreign commercial surrogacy arrangement…

For the purposes of the Matrimonial and Family Proceedings Act 1984, the operative date of a transaction subject to a condition precedent is the date on which…

An appeal from a district judge’s financial provision order under Schedule 1 to the Children Act 1989 is not a rehearing. Intervention is justified where the…

When an application for a reporting restriction order affects freedom of expression, the court must comply strictly with Human Rights Act 1998, section 12.…

The High Court’s inherent jurisdiction may protect a vulnerable adult who retains capacity where coercion, undue influence or other circumstances may prevent a…

CAFCASS must disclose to the court material relevant to a child’s welfare, but it must comply with applicable safeguarding and data-protection requirements.…

The court directed that the judgment must not be published, whether in full or anonymised form, without a further application on notice to all parties…

A court may refuse to hear a party who is in wilful and continuing contempt where the contempt impedes the course of justice and no other effective means…

Where parental-responsibility jurisdiction has been accepted under Article 12(3) of Brussels II Revised, a party cannot unilaterally withdraw that acceptance…

Where a person aged 16 or over lacks capacity and has lifelong or long-term disabilities, proceedings under the Children Act 1989 may be transferred to the…

Under section 23 of the Matrimonial and Family Proceedings Act 1984, a transaction may be set aside where a material, though subsidiary, intention was to…

Disclosure is the normal rule in family proceedings. Withholding relevant material requires exceptional circumstances. The court must balance the parties’ ECHR…

The forced marriage protection jurisdiction is protective and quasi-injunctive. The court may make an order ex parte and may rely on hearsay or undisclosed…

A freezing injunction may be varied where the evidence shows that a lower level of security adequately protects the respondent’s position. A party should not…

Where an adult welfare case becomes academic because the protected person dies, the court may still determine issues of historical importance, but should limit…

The Court of Protection may determine Convention-rights arguments brought under section 7(1)(b) of the Human Rights Act 1998 and grant declaratory relief where…

In fact-finding proceedings concerning alleged domestic and sexual violence, the burden of proof rests on the party making the allegation. The applicable…

In Hague Convention proceedings, the child-objections exception has a relatively low threshold. The court must decide whether the child objects to an immediate…

In proceedings concerning an incapacitated adult, the ordinary costs principles applicable in children’s proceedings and Court of Protection proceedings may be…

A care order is discretionary and the child’s welfare remains paramount. The court must balance the importance of family reunification, identity, cultural and…

Permission to withdraw care proceedings is a discretionary welfare decision. The court must focus on whether withdrawal promotes the child’s welfare, rather…

Recognition of an overseas divorce under section 51(3)(a)(i) of the Family Law Act 1986 involves two stages. The court must first decide whether reasonable…

Under Council Regulation (EC) No. 2201/2003, jurisdiction over parental responsibility generally follows the child’s habitual residence. The former state of…

Capacity under the Mental Capacity Act 2005 must be determined by applying the statutory test to the particular decision and the evidence. The functional…

For the purposes of Article 16 of Brussels II Revised, a court is seised when the document instituting proceedings is lodged, subject to the applicant’s…

Sections 28 and 85 of the Adoption and Children Act 2002 must be read compatibly. Section 85 is a penal provision directed to permanent removal abroad for…

Where a child-support calculation prevents an order for periodical payments, it does not necessarily prevent a lump-sum order under Schedule 1 to the Children…

Care proceedings are not a vehicle for the court to decide a medical-treatment issue which is not properly constituted between parties who seek a decision. The…

In ancillary relief proceedings, conduct under section 25(2)(g) of the Matrimonial Causes Act 1973 requires conduct sufficiently serious to affect the fairness…

Where a parent is alleged to have been deliberately stranded abroad and separated from a child, the Family Division should consider urgent protective and…

An order is enforceable as an injunction only if it is directed to a person, group or class and is expressed in clear, precise and unambiguous terms.…

Capacity to decide about contraception is assessed under the Mental Capacity Act 2005 by reference to the immediate medical information relevant to…

Where parties have agreed that disputes concerning a child’s maintenance are to be dealt with in a specified Member State, Article 23 of Brussels I may confer…

For financial relief under Schedule 1 to the Children Act 1989, “parent” means a legal parent, subject to the statutory extensions in paragraph 16. The…

Capacity to consent to sexual relations or marriage must be determined under the statutory framework in the Mental Capacity Act 2005. The person must…

In an international relocation application, the child’s welfare remains the paramount consideration. The court must apply the statutory welfare checklist and…

An appellate court should interfere with findings of fact only where the conclusion is demonstrably contrary to the evidence or the decision-making process is…

In foreign commercial surrogacy cases, an application for a parental order under Human Fertilisation & Embryology Act 1990, section 30, should not be treated…

Where an adult lacks capacity to decide about medical treatment, the Court of Protection may authorise treatment that is objectively in the person’s best…

Disclosure of adoption records relating to a person adopted before the appointed day requires exceptional circumstances under section 79(4) of the Adoption and…

Habitual residence is determined as a question of fact by evaluating the child’s circumstances as a whole. A child may lose habitual residence in one day only…

Habitual residence is a question of fact determined by the ordinary and natural meaning of the words and all the circumstances of the case. A child’s habitual…

In assessing the effect of a new relationship on periodical payments, cohabitation is not equivalent to marriage and does not automatically terminate or reduce…

Recognition of a foreign adoption under the common law requires consideration of three matters: whether the order was lawfully obtained; whether the foreign…

When appointing deputies for a person who lacks capacity, the court must apply the best-interests principles and the statutory preference for court decisions…

In ancillary relief proceedings, inherited wealth brought into a marriage before it began may justify a substantial departure from equal sharing, particularly…

Leave under section 13 of the Matrimonial and Family Proceedings Act 1984 requires both prima facie jurisdiction and a substantial ground for financial relief.…

Article 5 is not engaged merely because a child or incapacitated adult lacks capacity, is supervised, or has a bedroom door locked at night. The court must…

The High Court’s inherent jurisdiction over an adult lacking capacity is, apart from the incidents of wardship, as extensive in practical terms as its…

Where a child is removed from Scotland without the consent of a parent with parental responsibility, Family Law Act 1986, section 41 preserves the child’s…

In ancillary relief proceedings, the sharing principle does not require inherited or gifted assets to be treated as an undifferentiated whole. Where there is…

A court with jurisdiction under the Brussels regime is not automatically deprived of a domestic discretion to stay matrimonial proceedings in favour of…

A person’s lack of capacity to consent to a placement does not, by itself, amount to deprivation of liberty. The court must examine the person’s concrete…

Information produced by comparing a retained DNA sample with other samples is information derived from the sample. Its disclosure is therefore restricted by…

Under the Mental Capacity Act 2005, the only threshold for the Court of Protection’s welfare jurisdiction is that the person lacks capacity in relation to the…

The slip rule permits correction or clarification of an order so that it accurately gives effect to the judgment, but it cannot be used to make a substantive…

An overseas divorce obtained through judicial proceedings may qualify for recognition under Part II of the Family Law Act 1986 even where the proceedings…

In ancillary relief proceedings, inherited or gifted property does not automatically fall outside the sharing principle. A family farm or farming company may…

In Hague Convention proceedings, acquiescence depends principally on the wronged parent’s actual state of mind, assessed from all the circumstances; practical…

In financial remedy proceedings, fairness does not require a precise mathematical division between matrimonial and non-matrimonial property in every case. The…

Jurisdiction for divorce is assessed at the date when the petition is presented. Habitual residence depends on the person’s established permanent or habitual…

Disclosure from private care proceedings to the police is governed by a fact-sensitive balancing exercise. Relevant considerations include the administration…

Permission to appeal may be granted only where the proposed appeal has a real prospect of success or there is some other compelling reason for it to be heard.…

Applications to relax reporting restrictions affecting birth parents require an intense, fact-specific comparison of the competing rights under Articles 8 and…

In ancillary relief proceedings, an objectively fair division of matrimonial assets already implemented should not be reopened merely because later events…

In care proceedings involving unexplained infant collapse, recurrence of unexplained events does not itself justify an inference of deliberate harm. The court…

Equal sharing of wealth at the date of trial is not automatic after marital separation. The court must determine the fair overall outcome by applying the…

Information irregularly obtained from another party’s computer must not confer an advantage on the recipient. The recipient must establish entitlement to…

Section 12 of the Administration of Justice Act 1960 protects information relating to private family proceedings, not every fact or document placed before the…

In private-law disputes about residence, the child’s welfare is the paramount consideration. There is no parental right which displaces that focus. The court…