QUARTERLY DIGEST: Summary Of Recent Case Law (Family: Private Law Children)

Experts

Buerhlen and Buerhlen [2017] EWHC 3643 (Fam)

Moor J dismissed the father’s appeal against the decision of HHJ Scarratt that it was not necessary to instruct an expert as to earning capacity. The judge had correctly applied the test of necessity as described in Re HL [2013] EWCA (Civ) 655, that evidence that is indispensable would fall into the category of necessity whereas evidence that is merely useful, reasonable or desirable would not.

Although they arise from different statutes, the necessity test in financial remedy cases is the same as the necessity test in children cases.

Fact Finding

J (Children) EWCA Civ 115

M made serious allegations against Fr including marital rape. The judge at first instance declined to conduct a factfinding hearing into the allegations, which were denied by Fr. The judge affirmed non-molestation orders that had been made at an earlier hearing and made an order for very limited contact. Fr’s appeal was allowed against both the non-molestation orders and the contact order because the judge had failed to make any findings of fact. However, the appeal court declined to make any child arrangements orders because of the children’s ages, their negativity towards Fr and because of the restrictions on the court’s ability to make chid arrangements orders.

Guardian’s Flawed Analysis

F v H and Anor [2017] EWHC 3358

Russell J overturned the decision of the circuit judge at first instance to grant M a child arrangements order. There had been a long and protracted history and the judge had erred in relying upon the opinion of the newly appointed r16.4 guardian who had read only limited papers, had met the parents and the child only briefly and who had not challenged M’s account of events.

Removal From The Jurisdiction

Re M (A Child) [2017] EWCA Civ 2356

The CA granted Fr’s appeal against a decision at first instance granting M leave to remove the child from the jurisdiction. The judgment was not sufficiently reasoned and the judge did not give sufficient reasons for departing from the recommendations of the CAFCASS officer.

A v B [2018] EWHC 328 (Fam) Theis J

Leave granted to appeal a first instance decision not to allow the mother to remove the child from the jurisdiction.