Private Law Orders

Question 1

Williams v Minnock and Williams

Answer 1

Mother absconded with son after she lost residence, mother and partner of mother were jailed for helping her.

Question 2

Mabon v Mabon

Answer 2

Child of the family sought own legal representation in course of action regarding child’s arrangements. Court gave permission, rights to freedom of expression and participation in family life outweighed formally paternalistic view of the courts.

Question 3

Re R

Answer 3

L was living with F but wished to return to M, as reported in CAFCASS report. Held that trial judged erred in his treatment of the child’s wishes and in rejecting the CAFCASS report.

Question 4

Re A and W

Answer 4

In an application for leave to apply, s1(1) of the CA does not apply so as to make the children’s welfare the paramount consideration as s10(9) stipulates certain matters to which the court must have regard.

Question 5

Re J

Answer 5

Decided children would be too great a burden on 59 year old grandmother, articles 6 and 8 to be considered, s10(9) was clear about factors to consider. No presumption in favour of grandparents.

Question 6

Re B

Answer 6

Paternal grandmother appealed against decision to transfer residence of her grandchild, who had lived with her since birth, to the child’s father. Court reaffirmed that welfare principle was court’s paramount consideration, application of the natural parent principle is secondary. s10(9) factors are not a test, were considered alongside any other matters the court felt were relevant, could include prospect of success.

Question 7

Re G, Re Z

Answer 7

Leave granted for applications for contact orders where men had acted as sperm donors. Judge established that when considering whether a donor could apply for orders, the court must take into account factors including; the nature of the application, the applicant’s connection to the child and the potential for disruption to the child’s life. Court will try to protect Article 8 rights.

Question 8

L v C

Answer 8

Application by non-bio mother, had shared care of child for 2 1/2 months, court had no jurisdiction in relation to the child because she was not habitually resident, but at the date of the child’s removal family life existed under the meaning of Article 8.

Question 9

Re A

Answer 9

Complex facts - ex partner of non-bio mother wanted to obtain leave to apply for a contact order in respect of Alice. He was seen as “psychological parent”. Reintroducing contact with him could worsen A’s mental health issues, allowing the application could lead to harm to A. Was a balancing exercise, ultimately the application was refused. The family already required support, the court hearing could worsen it.

Question 10

Re G (Residence: Same-sex Partner)

Answer 10

Application for joint residence made by a co-mother in favour of children she had through IVF with a former partner. CoA granted order on appeal. Ordered ex-partner to remain in Leicester rather than moving to Cornwall, she moved anyway. Subsequently - lower court inverted time to be spent with the parents so co-mother had residence, House of Lords reverted to the original order, would be better for children even though ex-partner should be punished.

Question 11

Re B

Answer 11

Natural parent presumption? “it is only as a contributor to the child’s welfare that parenthood assumes any significance”

Question 12

Re E-R

Answer 12

No natural parent presumption

Question 13

Re O

Answer 13

Sir Bingham summarised principles - welfare is paramount, almost always in the interests of the child to have contact with parents, court has powers to enforce contact which courts should exercise to promote overall welfare of the child, sometimes direct contact should not be ordered, if so indirect contact is usually desirable.

Question 14

Re U

Answer 14

Appeal by mother, CAO placed youngest child with father, court found that mother had alienated children towards father, and implacable hostility towards contact. M considered to have caused emotional harm to the children, children to live with father, but impractical as children’s views were entrenched. Only 3rd child’s residence was transferred.

Question 15

Re J (a minor)

Answer 15

Boy living life entirely as a girl was removed from his mother’s care.

Question 16

Re M

Answer 16

Conditional residence order, contact order made for two periods of staying with F, if either does not occur the children will move to live with F.

Question 17

Re LVMH

Answer 17

Practical direction 12J concerning domestic violence. Four appeal considered, involving DV - appeals dismisssed, family courts must have heightened awareness of the risks of exposing children to DV, as a matter of principle DV is not of itself a bar to contact, simply a factor in the balancing of the court’s discretion.

Question 18

Re A

Answer 18

Court eventually ordered contact despite DV (supervised face to face contact)

Question 19

Re Q (a child)

Answer 19

“There are no winners here, only losers” - Q was influenced by his mother’s hostility towards father, suffered from emotional harm. Judge concluded that any further attempts to enforce contact would result in harm. Direction for parents to cooperate in therapy.

Question 20

K v D

Answer 20

No reason for CAO, issue was really about contact. Contact was restored, parents had to attend appropriate courses and family assistance order was made for 12 months.

Question 21

Re S

Answer 21

M was 18 when D was born, parents had split before birth. F was jailed for sex offences, had contact before and after conviction but M stopped it. F applied to restore contact, indirect contact only was ordered. CoA remitted the matter for a re-hearing, trial judge had erred by focusing on need for long-term supervision of contact, not in itself a reason to refuse contact.

Question 22

Re S-B

Answer 22

Only indirect contact with M was best for children, she had mistreated them.

Question 23

Re A&B

Answer 23

Difference arrangements for different children, CAO for indirect contact would be better for elder daughter than no order. Neutral order made in respect of political activity.

Question 24

H v A

Answer 24

F was in prison, continued attempts to burn down family home etc. Held that nature and circumstances of his conviction were ample evidence of the risk he posed to M and children, justified that no info re education should be given until children reached 18, was justified and proportionate under Article 8.

Question 25

P v D, X, Y & Z

Answer 25

F convicted of raping M, had abused her and 2 eldest daughters, F had repeatedly tried to locate them while in hiding. Held that PSO order could be made to stop F from taking any steps in relation to exercising his PR in respect of youngest child, further restraining orders were attached.

Question 26

Re G

Answer 26

Child attended orthodox Jewish school, lived with M. M wanted transfer to local state school, F did not, applied for shared residence. This was refused, extensive contact with F to be maintained, on consideration of welfare, arguments of education vs way of life and task of ordinary reasonable parent, allowed child to be sent to state school.

Question 27

Re JM

Answer 27

J (1) from Poland lived in UK with his family for 2 years. Rare aggressive cancer, likely to die in 6-12 months with no treatment. Parents refused consent, held that surgery was in child’s best interests.

Question 28

M v F, A & B

Answer 28

Concerns over domestic violence and religious extremism. M left with eldest child, had second child, F breached order keeping him away from M, he was sent to prison and a restraining order was granted. CAO was granted to prevent contact and a PSO to stop him having access to education/medical records, and a s91(4) order to stop F from applying for more court orders.

Question 29

Re F (international relocation)

Answer 29

M sought to move with child to Germany, F would have minimum 6 weeks contact a year. Held - international relocation cases, where there’s a possibility of fundamental interference between the child and a parent, require that the parents’ plans be scrutinized and evaluated by reference to the proportionality of the same when weighed against the parties’ Article 8 rights.

Question 30

Re A

Answer 30

Shared residence orders may provide legal confirmation of factual reality, when one party has primary care of a child it may be psychologically beneficial to the parents in emphasising the equality of their position and responsibilities.

Question 31

J v B

Answer 31

– partner sought contact with five children after leaving family and Jewish community to live as a woman. Held that there was a real risk, amounting to a probability, that the children and their mother would be rejected by their community if face to fact contact with father was sought. Order for indirect contact was made.