Costs of returning abducted children

B-v-B [2015] EWCA Civ 1166

Richards LJ, Sale LJ, Bodey J

A court can order payment of travel costs and costs of returning the child in Hague Convention proceedings but Art 26 1980 Hague Convention does not extend to domestic proceedings seeking a return.

Article 26 in its relevant parts reads: "Upon ordering the return of a child …. the judicial ….. authorities may ….. direct the person who removed or retained the child …. to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant and those of returning the child."

Care Proceedings and Adoption of Foreign Nationals: Further Guidance from the Court of Appeal

In the Matter of CB (A Child) [2015] EWCA Civ 888
The President
The lessons of this and other cases are clear but bear repetition. We must be understanding of the concerns about our processes voiced by our European colleagues  [about non-consensual adoption]. We must do everything in our power to ensure that our processes are not subject to justifiable criticisms. This means ensuring that:


i) local authorities and the courts must be appropriately pro-active in bringing to the attention of the relevant consular authorities at the earliest possible opportunity the fact that care proceedings involving foreign nationals are on foot or in contemplation;


ii) the court must, whether or not any of the parties have raised the point, consider at the outset of the proceedings whether the case is one for a transfer in accordance with Article 15 of BIIA: see generally In re E (A Child) (Care Proceedings: European Dimension) Practice Note [2014] EWHC 6 (Fam), [2014] 1 WLR 2670, [2014] 2 FLR 151, paras 31, 35-36;


iii) if there is no transfer in accordance with Article 15, the court, if the local authority's plan is for adoption, must rigorously apply the principle that adoption is 'the last resort' and only permissible 'if nothing else will do' and in doing so must make sure that its process is appropriately rigorous: see In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035, and Re R (A Child) [2014] EWCA Civ 1625;


iv) in particular, the court must adopt, and ensure that guardians adopt, an appropriately rigorous approach to the consideration of the 'welfare checklist' in section 1(4) of the 2002 Act, in particular to those parts of the checklist which focus attention, explicitly or implicitly, on the child's national, cultural, linguistic, ethnic and religious background and which, in the context of such factors, demand consideration of the likely effect on the child throughout her life of having ceased to be a member of her original family.
In this connection, everyone concerned with such a case needs always to remember the powerful point made by Mostyn J in Re D (Special Guardianship Order) [2014] EWHC 3388 (Fam), [2015] 2 FLR 47, para 1:

1. "If any case illustrates the momentous and very difficult nature of the decisions that have to be made in the Family Division it is this one. My decision will determine whether ED grows up in the Czech Republic, where full respect will be paid to his Czech Roma ethnicity and where it is likely that the parental link will be maintained, or whether he grows up in the United Kingdom as an English boy to become, in adulthood, an Englishman. On this latter footing, being realistic, his Czech Roma heritage will either be extinguished or reduced to insignificance."

That is not, I wish to make clear, a reason for not making an adoption order where the circumstances demand and where nothing else will do. But it does serve to underscore the gravity of the decision which the court has to make in such cases and the pressing need for care and rigour in the process.

Funding of Litigants through Ministry of Justice: Court of Appeal applies the brake

The decision of the Court of Appeal  on 22 May 2015, in Re K & H (Children) [2015] EWCA Civ 543, reversed the decision of Clifford Bellamy in Re K & H (Children: Unrepresented Father: Cross-Examination of Child) [2015] EWFC 1 and disapproved various decisions of the President.

This case focussed on the principle of whether the court could order HMCTS to fund legal representation in the absence of legal aid.

The Court of Appeal held that the judge had no power to make the order made and therefore allowed the appeal.  The Court found that "it is not possible to interpret either section 1 of the Courts Act 2001 or section 31G(6) of the Matrimonial and Family Proceedings Act 1984 as giving the court the power to require the Lord Chancellor to provide funding for legal representation in circumstances where such funding is not available under a scheme as detailed and comprehensive as that which has been set up under the Legal Aid and Sentencing and Punishment of Offenders Act 2012.  The court must respect the boundaries drawn up by Parliament for public funding of legal representation.

Complex Financial Remedy Cases at the Central Family Court FRU

The Financial Remedies Unit at CFC has issued guidance in respect of cases which will be accepted at the CFC FRU together with a form which needs to be completed.

Certificate of Financial Complexity

 

In the Family Court

In the Financial Remedies Unit of the Central Family Court

 

The marriage of				1. Outline background
[Applicant]				a. Date of Marriage			[Date]
and
[Respondent]				b. Date of Separation			[Date]
c. There are	[Number]		children of the family.
Please provide dates of birth of any children.
d. The Petition / Answer [delete as appropriate] was issued on							[Date]
at Bury St Edmunds Divorce Centre
Other court [please state]			[Name of issuing court]
and given case number
[Case Number]
e. The Decree Nisi was pronounced on					[Date]
f. The Decree Absolute was granted on					[Date]
g. There is / is not [delete as appropriate] a dispute about the jurisdiction of the Family Court. The reason for the dispute is:
Please provide brief reasons.
[Name]			Counsel / Solicitor for the Applicant/Applicant
Signature
[Name]			Counsel/Solicitor for the Respondent/Respondent

 

I/We certify that this application should be allocated to the Financial Remedies Unit of the Central Family Court because it is a case of such complexity that is appropriately dealt with in a Specialist Financial Court for the reasons stated overleaf.

Explanation of Complexity Issues

 

Delete/complete as appropriate

 

1. The assets in this case are currently estimated to be in the order of:
	a. Under £1 million
	b. £1 - £3 million
	c. £3 - £10 million
	d. Over £10 million
If the assets are in categories a., b. or c., please identify reasons as below why the case should be heard at the FRU and is not appropriate for hearing at a local hearing centre.
A. Potential allegations/issues may arise which include: [please tick all that apply]
	(1) Complex asset structures				(7) Expert accountancy evidence will be required
	(2) Complex income structures				(8) The parties’ respective contributions.
	(3) Non disclosure of assets				(9) There are/may be disputed allegations of “obvious and gross” conduct.
	(4) Assets are / were held through the medium of offshore trusts / settlements or otherwise held offshore or overseas				(10) There are substantial arguments concerning the illiquidity of assets.
	(5) Assets are/were held through the medium of family/unquoted corporate entities.				(11) There may be substantial arguments about:-which assets are “matrimonial assets” or “non matrimonial assets”
	(6) The value of family assets, trust and/or corporate entities.				(12) The application involves a complex or novel legal argument.
B. Any other reason why the case has the appropriate degree of complexity
	Yes
C. In respect of all Answers ‘Yes’ to A(1)-(12) or B please give brief details

 

Guidance Note: Financial Remedies Unit at the Central Family Court

 

The Financial Remedies Unit (FRU) is a specialist unit within the Central Family Court. It currently comprises seven full time courts conducted by specialist financial judges. It is headed by His Honour Judge Martin O’Dwyer.

 

1              Administratively it is supported by dedicated FRU staff and clerks who deal with all issuing, listing and drawing orders in Financial Matters.

2              The purpose is the efficient handling of complex financial cases.

3              The overriding criterion for a case being retained in FRU is complexity, i.e. is a case of such complexity that it is appropriately dealt with in a specialist financial unit.

4              The FRU has a number of internal procedures for the efficient managing of financial cases and an Enforcement Unit headed by DJ Robinson in cooperation with the Legal Advisers.

5              The contact email address is cfc.fru@hmcts.gsi.gov.uk.

 

Bury St Edmunds Divorce Centre

6              All Forms A subject to the following should will be issued at Bury St Edmunds (BSE) Divorce Centre or other Divorce Centre and allocated to the appropriate Family Court centre on a local court basis.

 

Issuing at CFC

7              Forms A may be issued directly in FRU at the Central Family Court upon completion of the Certificate identifying the appropriate level of complexity.

8              If it appears on the face of the Certificate that the criterion of complexity is or may not be met the matter will be referred to a judge of FRU who may decide to return the application or to refer the Form A to BSE for allocation on the appropriate local court criteria or to list the matter up to First Appointment in FRU.

9              Cases inappropriately issued in FRU which have to be referred to BSE may be subject to delay as the matter is transferred between courts. Similarly those whose first appointment is listed in FRU when the matter is not appropriately retained may suffer delay as the matter is then transferred to the appropriate local family court.

10           Transfers between courts

a.    To FRU.  Any family court may transfer cases to FRU where by reason of complexity or other good reason it is not convenient to retain the hearing in the local family court.

b.    From FRU. Nothing in these procedures is intended to restrict the judicial decision as to appropriate venue and FRU will liaise with other family courts for the efficient conduct of judicial business.

11           Petitions and Forms A may be issued at the CFC and other Family Court Centres in addition where

a.    There is a jurisdictional “race” between issues between competing jurisdictions

b.    Urgent relief is required e.g. freezing orders

Such applications once issued and the urgent matters dealt with, the normal test of rules of complexity or locality should determine venue.

 

HHJ Altman, Senior Designated Family Judge for London

Rachel Jones, Operations Manager, Central Family Court