Emergency Remedies in the Family Court

Commentary

Currency: Issue 49 (February 2020)


In this issue all 11 divisions have been updated to reflect changes in procedural rules and practice directions and to deal with the current law and court decisions. Of significance are the following:




  • Division A. Amendments include the procedural rules that must be followed, and the criteria applied when making an application under the Children Act 1989, s 91(14) and when the court determines whether to make an order by reference to the decisions in Re N (Children) [2019] EWCA Civ 903 and Re A [2019] EWHC 612 (Fam). Section A21 (secure accommodation) has been revised to provide: a clear and succinct, step-by-step guide on what constitutes secure accommodation; the grounds and criteria that apply; the relevant Convention rights that must be considered, including in particular the child's right to legal representation and to be heard and when authorisation under the court's inherent jurisdiction may be appropriate.

  • Division B. Division B deals with recent jurisprudence on the use of the court's inherent jurisdiction to deprive a child of his liberty and on vulnerable adults who do not fall within the Mental Capacity Act 2005 or the Mental Health Act 1983.

  • Division C. This division has been overhauled to deal with: urgent applications within adoption proceedings to withdraw consent; opposing an application for an adoption order; seeking an injunction and a recovery order.

  • Division D. The issue of repudiatory retention and a return order to a third country with which neither the child nor the parent in whose care the child is has any real connection is considered in the light of the decision in Re S (A Child) (Hague Convention 1980: Return to Third State) [2019] EWCA Civ 352.

  • Division E. The duty imposed on those representing a vulnerable party or witness and the court to consider the provisions of FPR 2010, r 3A is dealt with comprehensively, in particular by reference to the two recent cases of JH v MF [2020] EWHC 86 (Fam), where there was a wholesale failure by the court of all the relevant provisions and Re N (A Child) [2019] EWCA Civ 1996, where the failure related to both the legal representatives and the court. This division also considers the court's jurisdiction to deal with an application for an FMPO or for permission to apply for such an order where the person to be protected is not within the jurisdiction such as arose in Re KBH and Others (FMPO: Non-Resident British Citizen) [2018] EWHC 2611 (Fam).

  • Division F. In F6 the principles that should be applied when determining the allowance that must be made for the respondent's living expenses as well as ordinary business expenses is dealt with comprehensively by reference, in particular, to the recent case of Veneshprombank LLC v Bedahamov [2019] EWCA Civ 1992. In F7 (search orders), the standard form of family orders has been amended to take in the issues that arose in Akhmedova v Akhmedova [2019] EWHC 3149 (Fam) in relation to restrictions on search orders and the privilege against self-incrimination. It also sets out the procedure in relation to documents obtained illegally.

  • Division H. The use of the court’s inherent jurisdiction to deal with issues that arise relating to the welfare deprivation of liberty and other matters relating to vulnerable adults is considered in the light of the recent decisions in KR v ST [2019] EWHC 2498 (Fam), Redcar and Cleveland BC v PR [2019] EWHC 2305 (Fam) and Wakefield Metropolitan District Council v DN [2019] EWHC 2306 (Fam).


Contributors

 David Burrows Contributor
 Ellie Foster Contributor
 Julie O'Malley Barrister Author
Her Honour Nasreen Pearce BA, LLB General editor
 Nigel Fricker QC Founding editor
 Richard Budworth Contributor
District Judge Susan Jackson Contributor