Bloomsbury Family Law Briefing: August Teaser

Case Summaries

Re KN (A Child) (Art 15 Transfer) [2020] EWCA Civ 1002 (30 July 2020) – Appeal of mother of disturbed 13-year-old against order that the proceedings should be transferred to the French courts under Brussels IIA Art 15. The English court and local authority must try to find the child a suitable placement for the child in France.

Manjra v Shaikh [2020] EWHC 1805 (Fam) (8 July 2020), Cobb J – Successful appeal against an order refusing to discharge a 2016 non-molestation order (Family Law Act 1996, s 42). It was contrary to good practice for an order to be made without limit of time (at [23]).

Emmanuel v Avison & ors [2020] EWHC 1696 (Ch) (8 July 2020), Birss J – Mrs E claimed the signature on a mortgage deed on her property to the Avisons was a forgery. The burden was on her to prove it.

Secretary of State for the Home Department & anor v RH [2020] EWCA Civ 1001 (29 July 2020) – Decisions of MacDonald J upheld in R v G and the Home Department (Disclosure of Asylum Records) [2019] EWHC 3147 (Fam) (18 November 2019) and R v G and the Home Department (No. 2) [2020] EWHC 1036 (Fam) (4 May 2020) to permit release into family proceedings of asylum application documents.

Fatima v Family Channel Ltd & Anor [2020] EWCA Civ 824 (1 July 2020) – Appeal allowed to set aside a judge’s refusal to permit her application for an adjournment and judgment in her absence (CPR 1998, r 39.3(3)-(5): no equivalent of CPR 1998, r 39.3(3)-(5) in FPR 2010). Principles on which judgment in absence should be permitted were considered by CA.

Truth and statements of truth

The statement of truth was created by Civil Procedure Rules 1998 (CPR 1998), Pt 22. It provided an alternative to the jurat in a sworn affidavit, and, like an affidavit, the document with a statement of truth is intended to contain the truth of a party’s or witness’s evidence. Family Procedure Rules 2010 (FPR 2010), Pt 17 (with Practice Direction 17A) has adopted the statement of truth and FPR 2010, r 17.2(1) defines what documents must be verified by a statement of truth (statements, statements of case etc).

This article considers:

  • the circumstances in which the maker of a statement of truth may be the subject of contempt proceedings where a statement appears to be untruthful (in both civil and family proceedings: CPR 1998, Pt 81 and FPR 2010, Pt 37);
  • that from 1 October 2020 Civil Procedure (Amendment No 3) Rules 2020, Sch 1 introduce a replacement CPR 1998, Pt 81 (Applications and proceedings for contempt of court). The equivalent proceedings in the family courts under rule 17.6 and Part 37 (contempt proceedings) are not intended to be affected by the new rules; and
  • some of the case law where a statement endorsed with a statement of truth is alleged to be untruthful (eg Hughmans (A Firm) v Dunhill [2015] EWHC 716 (Ch); Emmanuel v Avison & ors [2020] EWHC 1696 (Ch) (8 July 2020), Birss J (burden of proof of forgery: summary above); Liverpool Victoria Insurance Company Ltd v Zafar [2019] EWCA Civ 392 (expert witness’s contempt where statement untruthful).

An application to commit is a common law remedy. Procedure is, illogically, split between different civil proceedings rules, though the remedy of any application will be the same. Proceedings are civil proceedings but bear several important hallmarks of criminal proceedings (Navigator Equities Ltd & Anor v Deripaska [2020] EWHC 1798 (Comm) (17 July 2020), Andrew Baker J: see summary above). For the applicant in family proceedings the existing rules apply; whereas for applications in civil proceedings covered by CPR 1998 application is by the procedure is in CPR 1998, Pt 81 (as amended from 1 October 2020).

The Family Law Briefing is part of the Bloomsbury Law Online Service. The full briefing is available here.

David Burrows

Written by David Burrows

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