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December 5, 2023

Bloomsbury Family Law Briefing December 2023

The December issue of the Bloomsbury Family Law Briefing is now available for subscribers. 

Case summaries

XK v JY [2023] EWHC 2996 (Fam) (24 November 2023), Morgan J – Return of five-year-old to Slovakia, over a finding that the mother had ‘established that there is a grave risk of harm, the protective measures available within the home state and the undertakings offered are more than sufficient’ (see [29]). Includes a helpful summary of the law and judicial comment at higher court level on grave harm in relation to Hague applications.

His Majesty's Solicitor General v Jason-Steven: Wong [2023] EWHC 2966 (Fam) (21 November 2023), Cobb J – Four months immediate, for publication of court information in relation to adoption proceedings. Prohibition on recording family proceedings and on publishing information from proceedings is vital to the integrity of family proceedings.

Mahtani v Mahtani [2023] EWHC 2988 (Fam) (22 November 2023), James Ewins KC as a High Court judge – Application by W (Family Law Act 1986, s 51(3) that H’s Indonesian divorce should not be recognised. H had failed to take any part in W’s divorce proceedings. Treated as having been served and that recognition of his divorce should be refused.

TUI UK Ltd v Griffiths [2023] UKSC 48 (29 November 2023) (on appeal from [2021] EWCA Civ 1442) – Where a respondent did not challenge expert evidence but the judge accepting its submission that the evidence did not establish causation of the claimant’s claim, the rule is that a party must challenge the evidence of any opposing witness party. Applies to witnesses of fact and experts.

Azhar v All Money Matters t/a TFC Home Loans [2023] EWCA Civ 1341 (16 November 2023) – The judge below was right to refuse to permit the appellant defendant to argue a fresh point on the appeal. It should have been pleaded in the original hearing.

Churchill v Merthyr Tydfil County BC [2023] EWCA Civ 1416 (29 November 2023) – A civil proceedings court can lawfully stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process (and see article).

Alternative dispute resolution and family proceedings after Churchill v Merthyr Tydfil

The recent Court of Appeal case of Churchill v Merthyr Tydfil County BC [2023] EWCA Civ 1416 (29 November 2023) considered ‘whether a court can lawfully order the parties to court proceedings to engage in a non-court-based dispute resolution process, and, if so, in what circumstances it should do so’ (per Sir Geoffrey Vos MR who sat with Lady Carr LCJ and Birss LJ at [1])? The article considers how does the decision in Churchill affect parties to family proceedings (ie under Family Procedure Rules 2010); and how does court based dispute resolution work formally as part of the family courts process.

The article looks in a little more detail at the Churchill case and then at formal dispute resolution in family proceedings: that is, financial dispute resolution and dispute resolution in children proceedings. It considers the extent to which proceedings may be stayed to enable parties to be referred for mediation; or that parties be referred within the terms of the civil proceedings practice direction pre-action protocol (PAP) alternative dispute resolution. The article concludes that any equivalent to civil proceedings PAP procedures are unknown to family proceedings. Where family case decisions are not urgent a stay of proceedings to ensure parties adopt ADR procedures – or some form of mediation to see if parties can resolve their differences – must surely be urged on the Family Procedure Rules Committee before long?

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