RECENT CASES

 

Court of Appeal upheld Judge’s finding that the death of H’s father within a month of consent order was a rare, Barder event in this needs based case. Mesher order set aside as inheritance allowed both parties to have a home without the difficulties of a Mesher event in around 8 years time.

B v P [2015] EWHC 1160 (Fam)

 

Mrs Justice Pauffley orders return of 7yr daughter to US as no Re P-J ‘consent’ nor Article 13B exception established by M. She gives a useful summary of the considerations in deciding if there was consent to removal of the child following Re P-J (Abduction: Habitual Residence: Consent) [2009] 2 FLR 1051:

(1)  Consent to the removal of the child must be clear and unequivocal. 

(2)  Consent can be given to the removal at some future but unspecified time or upon the happening of some future event. 

(3)  Such advance consent must, however, still be operative and in force at the time of the actual removal.

(4)  The happening of the future event must be reasonably capable of ascertainment.  The condition must not have been expressed in terms which are too vague or uncertain for both parties to know whether the condition will be fulfilled.  Fulfillment of the condition must not depend on the subjective determination of one party, for example, "Whatever you may think, I have concluded that the marriage has broken down and so I am free to leave with the child."  The event must be objectively verifiable. 

(5)  Consent, or the lack of it, must be viewed in the context of the realities of family life, or more precisely, in the context of the realities of the disintegration of family life.  It is not to be viewed in the context of, nor governed by, the law of contract.

(6)  Consequently consent can be withdrawn at any time before actual removal.  If it is, the proper course is for any dispute about removal to be resolved by the courts of the country of habitual residence before the child is removed. 

(7)  The burden of proving the consent rests on him or her who asserts it.

(8)  The enquiry is inevitably fact specific and the facts and circumstances will vary infinitely from case to case.

(9)  The ultimate question is a simple one even if a multitude of facts bear upon the answer.  It is simply this: had the other parent clearly and unequivocally consented to the removal?

CAROLINE HELY HUTCHINSON Barrister

Family, Divorce and Matrimonial Lawyer

 

Legal Advice and Efficient, Practical Help in Resolving

Matrimonial and Family Issues

 

 

 

Lady Justice Macur DBE summarised the post Imerman duties where a legal representative is informed of the existence of illicitly obtained material. It must be returned which triggers the duty of the recipients's legal representative to make any relevant disclosure. The ability of the wrongdoer or principal to challenge the sufficiency of the disclosure is confined to the memory of the contents which is admissible but the Court has the power to exclude it having performed the balancing exercise of considering 'what is necessary for disposing fairly of the application for ancillary relief or for saving costs' and the overall justice of admitting it.

 

Here the judge considered the "manner in which the materials were obtained; the husband's persistent failure to candidly describe the means utilised to do so; the wife's subsequent and corroborated disclosure; apparent lack of, or minimal relevance to the issues in the case, as demonstrated by subsequent events; the delay; and, the costs – financial and emotional - all pointed to stopping the matter from proceeding further" and his refusal to consider the matter further, on the application to set aside his AR order, was well within his discretion and robust case management.

 

Appeal also dismissed on ground that HH Horowitz QC had failed to consider and weigh the different types of financial resource correctly.

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