High Court: Family Division judgments, 2016

A child may be deprived of liberty where he is confined, continuously supervised and controlled, and not free to leave, applying the Storck and Cheshire West…

A valid choice-of-court agreement under Article 4 of the Maintenance Regulation may exclude English jurisdiction over maintenance claims, but it does not…

In care proceedings, rehabilitation to parents may be approved despite serious previous harm where the evidence establishes that risk can be sufficiently…

Habitual residence is a question of fact. The court must assess the child’s integration in a social and family environment without adding legal glosses or…

Dispositions of assets may be set aside where the evidence shows that they were made at an undervalue, or for no consideration, as part of an attempt to evade…

Legal professional privilege does not protect communications made for the purpose of fraud or serious iniquity. The exception is not confined to criminal fraud…

Public authorities conducting a joint safeguarding investigation must co-operate, share accurate and relevant information promptly, comply with disclosure…

In a needs-based financial remedy case following a short marriage, periodical payments are assessed primarily by reference to needs, not by sharing future…

An appellate court may correct a material factual error in a judgment where the record inaccurately states a person’s convictions or background. The correction…

Under Art.12(2) of the Hague Convention, settlement requires sufficient physical, emotional and psychological stability. The assessment is child-focused…

In financial remedy proceedings, anonymisation is determined by an intense, fact-specific balancing exercise between Article 8 privacy rights and Article 10…

In an application under the inherent jurisdiction for the summary return of a child to a non-Hague Convention country, the child’s welfare is the paramount…

In financial remedy proceedings, the court assesses resources by considering likely access to assets, not merely legal ownership or control. A discretionary…

Where parents and treating clinicians disagree about medical treatment for a child lacking capacity, the court must make an independent and objective decision…

Information relating to private Children Act proceedings may be disclosed without permission where the recipient is a professional acting in furtherance of…

Third-party disclosure in care proceedings must be necessary to dispose of the proceedings fairly. Necessity lies between what is indispensable and what is…

In a family fact-finding hearing, the local authority must prove its allegations to the civil standard. It need not establish every individual element of the…

In deciding whether a child should be compelled to give evidence, the court must balance the possible assistance to determining the truth against the potential…

In an application under the 1980 Hague Convention, the Art 13(b) defence may be established where returning a child with the respondent parent would…

Competing adoption and family-placement applications are determined by a straight welfare test focused on the child’s welfare throughout life. There is no…

An occupation order under Family Law Act 1996, section 33(7), does not require proof of physical violence. Significant harm may include mental ill-treatment…

A foreign adoption is recognised at common law where the adopters were domiciled in the foreign country, the adoption was lawful there, its essential…

In child-protection fact-finding proceedings, the local authority bears the burden of proving allegations on the balance of probabilities. The court must…

On an appeal concerning registration and enforcement of foreign child-welfare orders, the enforcing court must have the information necessary to exercise its…

Proceedings for contempt based on an allegedly false statement of truth in family proceedings may be brought only by the Attorney General or with the court’s…

A ceremony which is incapable of recognition as a valid marriage may nevertheless be a void marriage capable of founding a decree of nullity. The distinction…

The judgment text was not supplied. No legal proposition or holding can be reliably extracted.

On rehearing a financial remedy application after a final order has been set aside for non-disclosure, the court has broad discretion to determine a fair…

In an international adoption case, the child’s welfare throughout life remains the paramount consideration. The court must undertake a global and holistic…

In a substantial-marriage financial remedy application, assessment under the sharing principle requires broad fairness rather than arithmetical precision. A…

An order for sale made to secure payment of a lump sum can create an immediate equitable interest in the specified property. The interest is not lost merely…

An applicant cannot evade an extended civil restraint order by presenting an application in a different court or by creating a spurious link with separate…

Where parental consent is unavailable or cannot be given, the court may exercise its inherent jurisdiction to authorise medical treatment for a child. The…

On a rehearing of findings in child-protection proceedings, the court must consider the fresh evidence alongside the earlier material and assess the totality…

For the purposes of the Hague Convention, wrongful retention is an event occurring on a specific occasion. The judgment declined to recognise a binding legal…

The High Court may make prospective orders concerning arrangements after a child’s death where the issue is an actual and pressing dispute, all interested…

In disputes about medical treatment for a child lacking decision-making capacity, the court must make its own objective best-interests decision. Best interests…

Jurisdiction under the Family Law Act 1986 is assessed at the relevant procedural date. Where the court is considering making an order, that date may be…

Damages for breach of Convention rights are subject to the statutory charge only where they are recovered in proceedings in connection with which civil legal…

A parent’s withdrawal from proceedings does not, by itself, determine whether a court should continue. In an exceptional case, the court may proceed where…

In public-law children proceedings, the court must determine welfare by applying the paramountcy principle and the statutory welfare checklist. An order should…

The inherent jurisdiction may support injunctions preventing an undesirable association where a local authority has reasonable cause to believe that a child is…

Under Human Fertilisation and Embryology Act 2008, a parental order cannot be made unless all statutory conditions are satisfied, including the surrogate’s…

Permission to appeal a reporting restrictions order requires an arguable error in the balancing exercise or a properly formulated point of general legal…

Under Article 16 of Brussels II revised, a court is seised when the document instituting proceedings is lodged, subject to the applicant subsequently failing…

Applications for reporting restrictions in family proceedings require a parallel analysis of the competing rights under Articles 8 and 10 ECHR. Neither right…

A child’s gender identity must not be imposed by a parent or prematurely fixed by professionals. The court must focus on the child’s welfare, autonomy and…

In an international relocation application, the child’s welfare remains the paramount consideration. The court must conduct an overall, comprehensive…

Case management directions in public law care proceedings are orders which must be obeyed fully, on time and to the letter. Parties must obtain the court’s…

Under article 9 of the 1996 Hague Convention, a court may request authorisation to exercise jurisdiction where the child has the required connection with the…

An application to commit a person to prison for contempt of court must be dealt with in public, with a public explanation for the court’s decision. Where the…

In financial remedy proceedings, a party’s failure to give full, frank and clear disclosure may justify adverse inferences. Those inferences must be properly…

A consent to embryo storage, and any variation or withdrawal of that consent, must comply with the writing and signature requirements in Schedule 3 to the…

In proceedings to set aside a financial consent order for material non-disclosure, the court has a clean sheet when deciding costs. The usual no-order…

A foreign adoption may exceptionally be recognised at common law despite non-compliance with the domicile or habitual-residence condition in Re Valentine’s…

Disclosure of confidential material from family proceedings is not a binary choice. The Family Court may permit disclosure while imposing conditions needed to…

Where one party is represented and the other is a litigant in person, the court should ordinarily direct timely service of the documents required for the final…

Where intended legal parenthood depends on statutory consent forms, the court may infer that a required form was signed from the contemporaneous clinical…

Where children are habitually resident abroad, pending English divorce proceedings do not automatically confer jurisdiction to determine their welfare. The…

In applications concerning publication of family proceedings, the court must balance the competing rights under Articles 8 and 10 of the European Convention on…

A court should not repeat an earlier order for the return of children where subsequent events make the asserted jurisdiction uncertain and the court lacks…

The High Court’s inherent jurisdiction permits protective injunctions for vulnerable adults who retain capacity and fall outside the Mental Capacity Act 2005.…

For the Hague Convention to apply, the child must have been habitually resident in the requested state immediately before the alleged breach. Habitual…

In an application to relocate a child permanently overseas, the child’s welfare is paramount and no legal presumption favours relocation by a primary carer.…

Where cross-border children proceedings are compromised before disputed allegations have been examined, the court should record clearly that it has made no…

Where a child’s birth parents cannot be found, the court may dispense with consent under Adoption and Children Act 2002, s 52(1)(a). The court must then apply…

Where a vulnerable adult’s expressed wishes remain equivocal and the court cannot assess whether they are communicated freely, the court should take reasonable…

Where a person is already the legal parent of a child, an adoption order made on the fundamental mistake that adoption is required may be revoked under the…

A court in England cannot make a statutory secure accommodation order under Children Act 1989, section 25, for accommodation in Scotland. The territorial…

In determining a child’s best interests, the court must adopt a holistic welfare appraisal. Relevant considerations may extend beyond narrowly medical matters…

Where statutory consent requirements for legal parenthood following assisted reproduction have not been satisfied, the court should generally declare the…

Wardship proceedings may properly continue where the child is abroad and previous orders have achieved little practical success, provided that continuation…

In care proceedings, threshold findings must be based on evidence proved on the balance of probabilities, rather than allegation, suspicion or speculation. The…

A Hague Convention return order does not determine the merits of children’s future care. The court should respect and support that order and should not…

On an interim care application, the court may remove children before final fact-finding where there are reasonable grounds to believe that they face a real and…

A child's habitual residence is determined by a factual enquiry into the child's integration in a social and family environment. The enquiry centres on the…

A fact-finding hearing in private-law children proceedings should proceed only where it remains necessary, proportionate and fair. The court must consider the…

In care proceedings involving alleged radicalisation, the court must distinguish between lawful religious or political belief and conduct or influence causing…

In care proceedings, allegations that an expert has inaccurately reported an assessment are determined on the balance of probabilities. There is no heightened…

Where Brussels II Revised applies to an application concerning parental responsibility, the court cannot invoke the residual jurisdiction in section 2(1)(b) of…

Ex parte relief in family proceedings should remain exceptional because it departs from the fundamental right to be heard. It is justified only where there is…

Under the 1980 Hague Convention, a parent’s actual right to veto removal of a child from the state of habitual residence is a right of custody. A merely…

The High Court has an inherent jurisdiction to protect a vulnerable adult with capacity who is habitually resident abroad but is a British citizen. The…

In care and adoption proceedings, adoption is an option of last resort requiring a high degree of justification. The court must first undertake a global and…

Under Art 53(2) of the 1996 Hague Convention, recognition and enforcement provisions apply only to measures taken after the Convention entered into force…

For an adoption placement order where a parent has not been identified, the court must be satisfied that the parent cannot be found. This requires all…

Strike out under rule 4.4 of the Family Procedure Rules 2010 is a summary remedy for applications that are incoherent, factually baseless, legally…

In a non-Convention child-removal case, the court must determine whether summary return serves the child’s welfare, which remains the paramount consideration.…

A capacitous adult is entitled to decide whether to have contact with a parent. The inherent jurisdiction may protect a vulnerable person from undue pressure…

In a financial remedies application, the court should ordinarily take the asset snapshot at the hearing rather than update valuations before judgment. A…

Habitual residence is determined from all the circumstances of the individual case. For an infant, particular weight may be given to the integration of the…

Legal costs funding may cover costs already incurred as well as future costs where the underlying proceedings remain ongoing. The court must distinguish those…

The court may dispense with service on an automatic party where a very high degree of exceptionality is established, while retaining that person as a party.…

In a Part III application, the court must consider the statutory factors holistically and may fashion a bespoke award reflecting the applicant’s present and…

Care proceedings concerning alleged child radicalisation are governed by the ordinary civil standard of proof. The seriousness of the allegations or…

A judgment handed down in public is not subject to Administration of Justice Act 1960, section 12. Publication requires no judicial permission unless a…

Habitual residence is a fact-sensitive question requiring an overall assessment of the child’s integration in a social and family environment. The duration…

In financial remedy proceedings, pre-marital property does not become matrimonial property merely because income from it is used to support the household or…

An incomplete fertility-treatment consent form does not necessarily defeat legal parentage where the evidence establishes that the statutory consent was in…

In care proceedings, religious belief is protected, but the State may restrict its manifestation where proportionate intervention is necessary to protect…

Under Part III of the Matrimonial and Family Proceedings Act 1984, the court must decide both whether England and Wales is an appropriate forum and what…

A consent form may satisfy the statutory requirements for legal parenthood if, on its proper construction, it operates as the required parental and partner…

The High Court may exercise its inherent or parens patriae jurisdiction to protect a British child outside England, even where another country has jurisdiction…

Consent to a child’s removal under the Hague Convention must be clear and unequivocal. It is assessed from the parents’ words and conduct in the realities of…

Applications to publish a judgment in private care proceedings require a careful balance between open justice, freedom of expression, privacy and the integrity…

A child’s habitual residence is determined from the factual circumstances of the child’s life. Continuous, settled residence in England for substantially the…

A supplemental family judgment may clarify the meaning and effect of an earlier judgment and order where that clarification is necessary to resolve an asserted…

An application to terminate a children’s guardian’s appointment should be approached by reference to the guardian’s duty to act fairly, rather than the…

Habitual residence is a question of fact, requiring consideration of the child’s degree of integration in a social and family environment. The assessment is…

In Hague Convention child-abduction proceedings, jurisdiction requires a sufficient connection with England and Wales. Actual presence or habitual residence…

Recognition and enforcement of a foreign parental-responsibility judgment under Council Regulation (EC) no. 2201/2003 is mandatory unless the stringent…

The power to extend a supervision order under Schedule 3, paragraph 6(3) of the Children Act 1989 does not depend on the order still being current when the…

Permission to withdraw public law care proceedings is determined primarily by the child’s welfare. The court must also consider the overriding objective…

Financial remedy proceedings are generally private, but that starting point may be displaced where the parties’ lives and finances have already entered the…

Where substantial new evidence casts real doubt on findings previously made in care proceedings, the court may reopen the fact-finding process under the…

Under section 9(2) of the Matrimonial Causes Act 1973, the court may defer decree absolute where special circumstances justify doing so. The ordinary…

Suspicion, surmise, speculation and assertion cannot establish a factual finding in public law proceedings. The local authority must prove each discrete…

Where a consent form is intended to record consent to legal parenthood, an obvious clerical error in completing the form may be corrected as a matter of…

Where fertility treatment was undertaken jointly and both partners intended that the male partner should be a legal parent, the court may find that the woman…

Under Part III of the Matrimonial and Family Proceedings Act 1984, the court must consider both whether England and Wales is an appropriate venue and whether…

In care proceedings, the court may undertake a proportionate fact-finding exercise even where the care plan would be unchanged, if a disputed issue is material…

In determining children’s welfare, the court must assess all realistic options globally and holistically. Adoption is appropriate only where the evidence shows…

In Hague Convention proceedings, a sibling outside the Convention may be joined where she has sufficient interest in the subject child’s welfare and…

In welfare proceedings, the court may continue supervision where the children’s arrangements and relationships remain fragile. Contact may be increased in…

The High Court may exercise its inherent jurisdiction to protect a British child whose whereabouts and welfare are unknown, even where the child has never been…

In determining whether adoption or family placement better serves a child, the court must assess welfare throughout the child’s life. It must evaluate every…

Under Article 13(b) of the 1980 Hague Convention, the court must assess the particular situation facing the particular child on return. A grave risk of…

A declaration of incompatibility may be made only where the court is independently satisfied that the declaration is soundly based in law and fact; consent or…

In care proceedings, the court must distinguish permissible diversity in parenting from conduct that causes, or perpetuates, significant harm. The welfare of…

Habitual residence is essentially a factual question. The court must consider all the circumstances without imposing legal sub-rules or glosses. For a child…

In proceedings concerning possible female genital mutilation, the court cannot give a fact-finding judgment that eliminates all future risk where the evidence…

In care proceedings, a party’s Article 6 right to a fair trial does not create an absolute entitlement to every piece of information held by the local…

In Hague Convention child-abduction proceedings, the court must balance the need for prompt determination with the child’s welfare, both parents’ entitlement…

A court may make declarations concerning the meaning or effect of an earlier order, but declaratory relief is discretionary. Declarations which merely repeat…

For the purposes of article 13 of the Hague Convention, acquiescence depends primarily on the wronged parent’s actual subjective intention. The abducting…

Under Article 11(7) and (8) of Brussels IIa, the court of habitual residence retains jurisdiction after a requested-state court refuses return under the Hague…

On an application for summary return from a non-Convention country, the child’s welfare remains paramount. There is no presumption that return will accord with…

A local authority caring for a child must obtain an appropriate legal basis for exercising parental responsibility, particularly where the child is no longer…

On a judgment summons, the applicant must establish a case to answer, but need not prove every matter afresh where the order and default permit proper…

In an application under Part III of the Matrimonial and Family Proceedings Act 1984 after a foreign divorce, the court must decide whether an English order is…

An application for a female genital mutilation protection order requires an assessment of risk having regard to all the circumstances, including the girl’s…

A court should not determine a contested confidentiality or disclosure application in the total absence of notice to the affected respondents, even where…

There is no statutory power under the Family Law Reform Act 1969 to direct testing of DNA extracted during a person’s lifetime after that person has died. The…

In determining allegations of historic sexual abuse in private-law children proceedings, the court must decide each disputed fact on the balance of…

A consent document need not bear the prescribed form’s title if, as a matter of content and construction, it satisfies the statutory requirements for legal…

Neither biological parenthood nor a substantial period of care creates a presumption in favour of residence. Each is a significant factor whose weight depends…

The inherent jurisdiction may supplement the statutory and regulatory scheme governing recognition and enforcement of a foreign child-welfare order where…

A parental order may be made despite an application being lodged outside the six-month period in Human Fertilisation and Embryology Act 2008, s 54(3), where a…

Where fertility-treatment consent forms are completed in error, the court may rectify them retrospectively where the parties intended the legally required…

Applications concerning international travel and non-therapeutic circumcision must be determined by the children’s welfare as the paramount consideration. For…

Where maintenance proceedings are brought in England and Wales under Matrimonial Causes Act 1973, jurisdiction under the European Maintenance Regulation…

Capacity to consent to sexual relations requires a practical and non-paternalistic assessment of whether the person understands the sexual nature and mechanics…

Under the Presumption of Death Act 2013, the court may make a declaration where a person has either died or has not been known to be alive for at least seven…

Where a child has no habitual residence, the Family Division may have jurisdiction based on necessity. That conclusion should be revisited only where later…

Habitual residence is an essentially factual question. The court must assess the child’s integration into the social and family environment, having regard to…

Permission is required under Family Procedure Rules 2010 r 29.4 to withdraw proceedings under the 1980 Hague Convention. The rule applies disjunctively to…

In a child relocation application, the governing principle is the child’s welfare. The court must assess the practical consequences of the proposed move…

In a very wealthy financial remedy case governed principally by the principle of need, the marital standard of living is the appropriate starting point and…

In Hague Convention return proceedings, the child-objections defence has two stages. The court must first determine robustly whether the child objects to…

In disputes between cohabitees concerning beneficial ownership of property held in one party’s name, the claimant must establish a common intention that the…

When parents and clinicians disagree about life-sustaining treatment for a child lacking capacity, the court must make its own independent and objective…

In private-law fact-finding proceedings, abuse allegations must be determined on the balance of probabilities by evaluating all available evidence in its wider…

In a Hague Convention child-objections case, whether a child objects to return is a factual question requiring a straightforward approach. Once the exception…

Hague Convention proceedings are inherently summary, but an “ultra-summary” disposal is permissible only in very limited circumstances. Arguments going to the…

In financial-relief proceedings, the distinction between matrimonial and non-matrimonial property is analytical, not a rigid rule producing automatic…

In fact-finding proceedings, the local authority bears the burden of proving each allegation on the balance of probabilities. The court must assess the…

Trustees of settlements should ordinarily be joined to proceedings seeking to vary the trusts of which they are trustees. Joinder is required where an existing…

Adoption jurisdiction in England and Wales is statutory. The inherent jurisdiction may supplement the statutory scheme, but cannot be used to circumvent or…

Permission to revisit an earlier fact-finding determination requires more than speculation, hope or the mere existence of new evidence. The applicant must show…

Where parties agree to family arbitration, the court should adopt a stringent approach when asked to incorporate the award. An award should ordinarily be made…

In financial remedy proceedings, a company that owns property legally and beneficially does not hold it on trust for a spouse merely because family funds…

Where the relief sought would have no bearing on the orders required, the court should not determine an important jurisdictional issue that has become…

Where a local authority plans to seek the removal of a newborn child, it must issue care proceedings and any interim care order application promptly. The…

In a financial remedies case involving equal sharing, the court must determine the fair market value of assets at the agreed valuation date. Discounts for…

A fact-finding hearing should not be dismissed merely because a parent currently cannot enter the United Kingdom. The court must consider whether the disputed…

Diplomatic immunity protects the effective performance of diplomatic functions. It does not attach merely because a person holds a diplomatic title where the…

When deciding whether to withhold or withdraw medical treatment from a child, the court must determine the child’s best interests from the child’s assumed…

In Hague Convention proceedings, a child should be joined as a party only in the limited cases where doing so is in the child’s best interests. The court must…

In family fact-finding proceedings, allegations of radicalisation must be proved by the local authority on the balance of probabilities. The court must decide…

Where a maintenance creditor seeks enforcement in one Member State of an order made in another, the interaction between Chapter IV of the Council Regulation…

A parental order may be made where the statutory conditions are satisfied, including the child’s home being with the applicants, valid consent, and authorised…

In family fact-finding proceedings, allegations are determined on the balance of probabilities. The seriousness of an allegation or its consequences does not…

A mediation agreement which conditionally stays enforcement of an existing financial order does not replace that order where the specified condition is…

An order remains binding unless set aside or varied, even where its jurisdictional basis is disputed. The power to set aside is discretionary and is exercised…

For a parental order under section 54 of the Human Fertilisation and Embryology Act 2008, the statutory conditions must be assessed in the circumstances of the…

In financial-remedy proceedings arising from a marriage later accepted to be void, the court must distinguish between an objectively void marriage and the…

In a fact-finding hearing concerning infant head injuries, the court must decide whether the alleged inflicted injury is more likely than not on the whole…

Whether applicants are living as partners in an enduring family relationship under s 54(2)(c) of the Human Fertilisation and Embryology Act 2008 is a…

In financial remedy proceedings, the duty of full and frank disclosure continues while parties negotiate a consent order. A party must disclose information…

Adoption is a last resort. A placement order may be made only where the child’s welfare requires adoption and nothing else will do. The court must undertake a…

In care proceedings, the local authority bears the burden of proving disputed facts on the balance of probabilities. The seriousness of an allegation does not…

In care and adoption proceedings, the local authority must prove the threshold criteria on the balance of probabilities. Findings must be based on evidence and…