Bloomsbury Family Law Briefing: February Teaser

Case Summaries

Salford CC v W & Ors (Religion and Declaration of Looked After Status) [2021] EWHC 61 (Fam) (19 January 2021), MacDonald J (see Public law children below) – The Family Division has power to make a declaration of a child’ status under the High Court’s inherent jurisdiction though should not generally do so, but leave it to the Administrative Court.

F v M [2021] EWFC 4 (15 January 2021), Hayden J – Father’s application for contact to two children. Full review of the law on ‘similar fact evidence and, especially, coercive behaviour: ‘[109] The overall approach to the assessment of evidence here is the same as in any other case. What requires to be factored into the process is the recognition of the insidious scope and manner of this particular type of domestic abuse….’.

Advinia Care Homes Ltd v BUPA Care Homes Investments (Holdings) Ltd & ors [2020] EWHC 3607 (Ch) (22 December 2020), Michael Green J – Refusal to allow a party to amend pleadings to withdraw an admission: ‘[47] The whole point of things being admitted is that parties can move on and not be bothered with investigating such matters….’.

Rattan v Kuwad [2021] EWCA Civ 1 (11 January 2021) – Second appeal by wife in person in respect of a circuit judge’s allowing the husband’s appeal against a deputy district judge’s maintenance pending suit order. W’s appeal allowed. There was no need for the wife to do more than refer to her Form E for her income needs.

Onwude v Dyer & ors [2020] EWHC 3577 (QB), HHJ Richard Parkes QC (as a High Court judge) (23 December 2020) – Order that a solicitor without higher rights could represent a party. Consideration of the guidance Clarkson v Gilbert [2000] EWCA Civ 3018…; Mr O’s state of health and nervous state, Mr Kershaw's standing as a practising solicitor, in support of the application for a right of audience for the duration of the trial.

Motorola Solutions, Inc & anor v Hytera Communications Corporation Ltd & anor [2021] EWCA Civ 11 (11 January 2021) – The unambiguous impropriety test for overriding without prejudice privilege and admitting the evidence – in this case in support of a freezing order injunction – was a very high bar. Appeal allowed.

Open justice and family courts, 2021…

President’s Transparency Reiew

In the period awaiting the report from the Transparency Review of the President of the Family Division (https://www.judiciary.uk/announcements/the-transparency-review-the-president-of-the-family-divisions-call-for-evidence/ the article provided a run-down from 2020 – and sometimes earlier – of the recent case law on openness in family proceedings hearings. The main areas affected by open justice at common law generally and in family proceedings resolves itself into four elements:

  • Public hearing – Whether the hearing should be public or in private; and the meaning of ‘private’.
  • Anonymity – Whether any party, witness or others involved in the case (eg expert witnesses, local authority and their witnesses) should be anonymised.
  • Release of documents prior to a hearing – Whether any documents should be released to a non-party (eg a media representative) before the hearing.
  • Release or ‘use’ of documents after a hearing – Whether any documents should be (a) released to non-parties after the hearing or (b) otherwise be ‘used’ by the parties (ie the ‘implied undertaking’; and see CPR 1998, r 31.22).

Each of these areas of open justice are considered by the article, especially ways in which the court can protect rights by preserving a child’s anonymity (Re S (A Child) v TikTok Inc and ors [2020] EWHC 3589 (QB), (30 December 2020), Warby J applying CPR 1998, r 39.2(4)); limited application in openness and release of documents in FPR 2010 PD30B; and release of documents to non-parties after proceedings for all common law proceedings after Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38, [2019] 3 WLR 429; Dring v Cape Intermediate Holdings Ltd [2020] EWHC 1873 (QB), Picklin J.

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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