Private Law Disputes Flashcards
Where is the welfare principle found?
Section 1 Children Act 1989
Does the welfare principle apply to applying for leave?
Re B - No, as it is a pre-filter stage. Violent grandmother, still granted leave
Who can apply under Section 8?
Parents, Guardians, Step-Parents, Those with leave of the court
What do we check when applying for leave?
Nature of application
Connection to Child
Risk of harm suffered
If it is a child also, we must look at whether they have sufficient understanding. This is done on understanding and maturity - someone as young as 14 can do it (Re SC).
Will refusal of contact end residence?
Re G - whatever is best for the child.
Will distance preclude a shared residence order?
Re F - No, can have longer periods at each residence. This happened with Scotland and England.
When applying to court for permission to relocate, which two cases are crucial?
Re F (2015)- Took a holistic approach, and considered welfare of the child. Payne v Payne - Paid huge attention to the fact that mother was primary carer.
Examples of Prohibited Step Orders
Re A&B - UKIP candidate. Mother worried about involvement.
H v A - Noone was to tell father information about children’s schools or location as he was crazy and in jail for trying to burn down their house.
Examples of Specific Issue Orders
F v F - Vaccination case. Daughters didn’t want it, father did.
Re G - Orthodox Jewish Couple split up and mother wants them in normal school. She gets it, as more beneficial to the children to be raised normally and not ostracising their mother.
Case with presumption of involvement?
CP v AR - Child has a right to be brought up by natural parents unless it is contrary to their welfare. In that case initial judge had made order to have children living with grandparents
Case where mother had indoctrinated children so much that father couldn’t be involved?
Re U - Children had to reside with mother.
Judge erred not taking child’s view into account?
Re R - Appeal decision where judge criticised for not listening to wishes of child. CHild was mature, and this was an important issue.
Allowing contact if there has been domestic violence?
Re LVMH - Domestic abuse not an absolute bar. However, do need to consider from child welfare perspective.
Sperm Donor cases?
Re G, Re Z, - sperm donor granted leave as:
They had wanted him as a role model
He had been allowed to establish family life with the children.
L v C - Lesbian couple use sperm donor online. When lesbian couple split up, one takes the baby and doesn’t allow the other contact. Granted leave as the sperm donor was a “joint effort” and she’d made attempts to breastfeed.
Does shared residence orders require exceptional circumstances?
No, as per D v D - just consider welfare principle.
What is the importance of the natural parent?
Re G: Natural mother had residence mostly, and second female parent had secondary residence. When natural mother breached court order, they switched round the balance. HL restored the original order, saying natural mother status is important.
However, this isn’t to be taken as always with parents.
Re B: Child raised by grandparents due to dodgy parents..
Later, one parent seeks CAO. Initial court give it focusing on natural parent. SC Revert is to Grandparents, looking at child welfare is truly paramount.
Permission to Relocate Internationally
Payne v Payne - Seemed to create a presumption towards allowing reasonable proposals by a primary carer.
Test outlined requiring: Genuine motivation for mothers move? Genuine motivation for fathers opposition? Impact of refusal?
Re F: Child to Germany. Court said we are to look at the whole account of the child’s interests.
F v L: Italian returning to Italy. Seemed to bring Payne back, as the judge focused on who could provide the best care first.
Permission to Relocate Internally:
Courts have been unwilling to restrict internally.
Re L read down the exceptionality requirement, and held we should just look at whether it is in the child’s interests to move. This was a case where the mother was trying to move away from father.
In Re F, moving 9 hours away to one of the most remote areas of the UK = similar to international relocation. “Exceptional case” and held due to upheaval, not in childs interests. Didn’t like exceptionality test, but felt bound by it.
