The award-winning blog by family lawyer Marilyn Stowe, Senior Partner at Stowe Family Law. Divorce advice, family law developments & more. She is highly skilled at uncovering attempts to disguise wealth and hide assets, ensuring everything is taken into consideration in reaching a settlement. Her particular speciality is conducting investigations in cases where substantial assets are in dispute.
The Government has finally launched its post-implementation review of the changes made to legal aid by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The aim of the review will be to assess the extent to which the objectives of the LASPO changes (as explained here) were achieved. The Ministry of Justice also says that since LASPO there have been significant developments in the justice system, including the processes through which people can access legal advice. Accordingly, the Government also “plans to use this opportunity to inform its wider consideration on the future of legal support in the justice system.” It all sounds grand, but anyone expecting the review to result in the reinstatement of legal aid to all private law family matters is, I’m afraid, seriously deluded.
Mr Justice Mostyn has issued a restraining order to stop a man in a long-running divorce case from contacting his former wife’s solicitor on her private email address. In Maughan v Wilmot the husband, despite being subject to a civil restraint order, was said to have “bombarded the court, [Mr Justice Mostyn’s] clerk, the applicant’s solicitor and the applicant’s counsel with an extraordinary volume of emails” including, since 27 October last, 27 to court staff, 36 to the court’s generic email address, 26 to Mr Justice Mostyn’s clerk, 26 to the wife’s solicitor and 5 to the wife’s barrister. Upon being requested to restrain the husband from communicating with the wife’s solicitor on her private email address, Mr Justice Mostyn said: “It is completely unacceptable that this form of harassment should take place. The application is made on behalf of the applicant to protect her servant or agent, namely her solicitor, and I am satisfied that is appropriate to grant that order.” Unfortunately, this is a sign of the times. Email is a wonderful thing, but it is far too easy to use it to harass court staff and lawyers in this way. When I was practising I received the odd ‘difficult’ letter from unrepresented parties on the other side, as all family lawyers no doubt do. However, I’m sure the incidence of such missives has gone through the roof since the advent of email. Courts need to come down hard on anyone abusing the ‘privilege’ of email in this way.
The President of the Family Division Sir James Munby has said that a sexual relationship not necessary for a valid marriage. In the case X (A Child : foreign surrogacy), a married couple were applying for a parental order following a foreign surrogacy arrangement. One of the requirements for applying for a parental order is that the applicants must be husband and wife, civil partners, or in a long-term relationship. However, here one of the applicants was gay, and their relationship was platonic. The question arose as to whether this in any way affected their ability to fall within the definition of “husband and wife”. Sir James quite rightly gave the answer: “a plain and unequivocal, No.” More importantly, Sir James mentioned in his judgment one of my family law heroes, Sir Cresswell Cresswell, as I explained in this post.
And finally, still with our tireless President, Sir James Munby has said that reporting restrictions in the family courts could be allowing judges to get away with mistakes. Speaking at the Bridget Lindley Memorial Lecture in Birmingham, Sir James is reported to have told his audience that judges were “grotesquely overworked” and “tired”, and so more likely to make errors, and that more openness would allow journalists and the public to scrutinise their decisions. “The simple fact is that at present journalists can’t [criticise judges] without access to the evidence and without reporting what went on in court and saying well, this judge seems to be listening to a different witness than I, and the impression I got from listening to this witness was X,Y,Z and the judge says A,B,C. So I think there are very real problems there,” he said. Yes, agreed, but there are of course good reasons why the reporting restrictions exist. I haven’t seen the whole speech and I don’t know what, if any, answers Sir James proposed, but sweeping away all restrictions is not one of them. This transparency versus privacy debate will no doubt continue to run and run.
Judges would benefit from greater public scrutiny, the President of the Family Division has suggested.
Speaking at an event on social media and the family courts earlier this week, Sir James Munby claimed modern judges are prone to making mistakes because they are “grotesquely overworked” and “tired”. One solution to this problem, he suggested, would be greater transparency in the family courts – a recurring topic with Britain’s most senior family law judge.
According to a report in The Telegraph, Sir James insisted that judges should not be “immune from criticism” and that journalists should be able to say “the whole thing [ruling] is flawed, the premises are all wrong, the facts are all wrong“.
But, he explained:
“The simple fact is that at present journalists can’t do that without access to the evidence and without reporting what went on in court and saying well, this judge seems to be listening to a different witness than I, and the impression I got from listening to this witness was X,Y,Z and the judge says A,B,C. So I think there are very real problems there.”
The veteran judge added:
“We’ve got to be much more honest about this, and if we are honest about it, things go wrong.”
Many parents “in these care cases” leave family court without understanding what happened during the hearing, the President suggested.
“And that is an indictment of our system, not of them.”
Photo by John Halbrook via Flickr under a Creative Commons licence
Any judgment mentioning the wonderfully named Sir Cresswell Cresswell, the first ‘Judge Ordinary’ of the Court for Divorce and Matrimonial Causes (more of whom in a moment), has to be noteworthy.
And so it is with the judgment of the President of the Family Division Sir James Munby in Re X (A Child : foreign surrogacy). It is a very short and simple judgment, but it makes two interesting points in relation to applications for a parental order following surrogacy.
The case concerned an application by the parents of a “much-loved child” for a parental order, arising out of a foreign surrogacy. We are told little about the facts, but there were two possible hurdles for the couple to overcome.
Firstly, as regular readers of this blog will know, the applicants for a parental order must be husband and wife, civil partners of each other, or “two persons who are living as partners in an enduring family relationship”. Here, the applicants were a married couple, but the ‘problem’ was that one of them was gay, and their marriage was platonic. It may be recalled that a marriage may be annulled if it has not been consummated – was this a problem for the parental order? No, said Sir James Munby. Referring, amongst others, to Sir Cresswell Cresswell, he said that a sexual relationship is not necessary for there to be a valid marriage. Quite right too.
The second issue was that the law requires that “the child’s home must be with the applicants”, but here the parents did not live together. This, Sir James found, made no difference: “When the child is not with both parents, the child’s time is split between them and their homes. The child does not live with anyone else. I need not go into further detail.”
Accordingly, the parental order was made.
And so to my hero Sir Cresswell Cresswell. In fact, I think he should be the hero of every family lawyer, as he was in a large part responsible for bringing family law into the modern age. I have actually mentioned him here previously, in this post. As referred to above, in 1858 he was appointed the first ‘Judge Ordinary’ of the newly-created Probate, Divorce and Matrimonial Causes Court, which replaced the jurisdiction of the ecclesiastical courts that had previously dealt with divorces. This effectively made him Sir James Munby’s original predecessor as President of the Family Division (from 1875 the then ‘Judge Ordinary’ became the President of the Probate, Divorce and Admiralty Division of the High Court, which in turn became the Family Division in 1971).
As to Sir Cresswell Cresswell’s great achievement in helping the process of modernising family law by making it a civil, rather than ecclesiastical, matter, I will let his entry in the Dictionary of National Biography explain:
“It was by his exertions that the experiment of the divorce court was successful. He reformed the old ecclesiastical rules of evidence in matrimonial causes … A less self-reliant man would have shrunk from the task. The work proved in the first year fifteen times as great as had been anticipated, and was always heavy. He disposed of causes very rapidly and sat daily from November to August; in all he adjudicated upon a thousand cases, and his judgment was but once reversed.”
The reference to the large number of cases related, I think, to the increase in the number of divorce cases after the reform of divorce (a situation echoed a hundred years later by the divorce reforms of the 1960s). Cresswell became highly respected (especially by married women!), and even got a mention in Anthony Trollope’s book Framley Parsonage:
“Mr. Gresham and his wife were supposed by the world to live on the best of terms. They always inhabited the same house, went out together when they did go out, always sat in their respective corners in the family pew, and in their wildest dreams after the happiness of novelty never thought of Sir Cresswell Cresswell.”
…which I understand to mean that they never thought of divorce!
I wonder whether the achievements of Sir James Munby will merit a literary mention?
Sexual relations are not necessary for a legally valid marriage, the President of the Family Division has claimed.
In a notably concise judgement, Sir James Munby considered an application for a parental order under the Human Fertilisation and Embryology Act 2008. When a couple arranges for the birth of a child via surrogacy, they are required to apply for such an order in order to acquire the legal status of parents. Unless and until a parental order is issued, the surrogate mother (and in most cases, her husband or partner) will be considered the legal parents of the child.
Section 54(2) of the Act states that applicants for a parental order must be:
“(a)husband and wife,
(b)civil partners of each other, or
(c)two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.”
Sitting in the Royal Courts of Justice, Sir James revealed few details of the case before him, saying in his ruling:
“I propose to say very little about the facts. There is no need for me to do so. It would be wrong to disclose, even in anonymised form, matters which are, of their very nature, intensely personal and private.”
However he did reveal that the applicants, although married, were not in a sexual relationship because one of them was gay: a fact that had always been known to the other, Sir James stressed. Nevertheless, their relationship is “deep and of long-standing” he said, and they had explained “the journey which has brought them to court” in “moving and powerful language, and with complete candour”.
The fact that the couple had a platonic relationship could not disqualify them from a parental order, the President continued:
“The marriage, which took place in this country, complied with all the requirements of the Marriage Act 1949. There is…no ground upon which the marriage could be declared voidable, let alone void. There can be no question of the marriage being a sham. In short, the marriage is a marriage. The fact that it is platonic, and without a sexual component, is, as a matter of long-established law, neither here nor there and in truth no concern of the judges or of the State.”
Clearly inspired by the uncommon facts of the case, Sir James added:
“One needs look no further than Nigel Nicolson’s Portrait of a Marriage , his acclaimed account of the unusual marriage of his parents, Vita Sackville-West and Harold Nicolson, to see how happy and fulfilling a marriage, more or less conventional, more or less unconventional, can be. But it is really none of our business. As the first Elizabeth put it, we should not make windows into people’s souls.”
The President also referred to the fact that the couple have different homes, with the child spending equal amounts of time at both properties, further qualifying the couple for a parental order.
Sir James concluded:
“Accordingly, and with great pleasure, I make the parental order sought by the applicants.”
Whilst I make no comment upon the motives of the wife in the case I am about to discuss, the issue of ‘forum-shopping’ is much in the news these days. Wives in particular are often anxious that their divorce proceedings are heard in this country, as it is generally considered that our courts are more generous towards wives when it comes to financial settlements than the courts of many other countries. The essence of forum shopping is usually getting the divorce proceedings issued first in the country where you want them to take place. However, as we will see, that is not always enough.
In the recent case Mensah v Mensah the wife sought to have her divorce dealt with here, rather than in France. However, her problem was that the French divorce took place first. She sought to get around this by arguing that she had not been given proper notice of the French divorce, and that it should not therefore be recognised by the English courts.
The facts of the case were that both parties were French nationals. They were married in the Ivory Coast in 1988 and have two children, both now adults. When the marriage broke down in around 2011 the husband was working in Ghana and the wife was living in an address in London that had been the family home prior to the husband taking up his job in Ghana.
The wife issued divorce proceedings in England in 2011, but the husband was not served. She then issued divorce proceedings in France in 2012. A hearing took place in France at which both parties were present. However, the wife did not thereafter progress the French proceedings.
Instead, the husband issued a summons in the French proceedings, which led to the French court granting the divorce in February 2015. The wife claimed not to have been given notice of the summons.
Back in England, the wife proceeded with her divorce. Decree nisi was pronounced in January 2016, and was made absolute in April 2016.
In January 2017 the husband applied to have the French divorce order registered in this country, thereby recognising the French divorce. The order was registered in March 2017, and it was against the registration order that the wife appealed. As mentioned, she claimed that she had not been given notice of the husband’s summons. Further, as the English proceedings had been issued first she submitted that the English court had jurisdiction to deal with the divorce.
The appeal was heard by Mrs Justice Theis in the High Court. It was something of a tangled web for her to unravel but, as she said, the position became clearer once the threads of the two sets of proceedings were drawn together. Her crucial finding was that the wife had in fact been given notice of the husband’s summons. It had been served by a bailiff at her Paris address (which she had given to the French court) and her son had informed her of this. The wife chose not to take any further part in the proceedings. There was therefore no reason not to recognise the French divorce.
As to the English proceedings, the divorce decrees were null and void, as by the time the decree nisi was pronounced the marriage had already been dissolved in France. In addition, said Mrs Justice Theis, there were sound policy reasons why the wife should not be allowed to rely on the later English divorce decrees, when there was evidence to suggest that she had not given the English court all the relevant information regarding the French proceedings prior to obtaining the divorce decree here.
Accordingly the wife’s appeal was dismissed, and the decree nisi and decree absolute made by the English court were set aside.
As I said at the outset, I’m not sure whether the wife here was ‘forum shopping’. In fact, it is a rather unusual case, as normally one would expect the ‘foreign’ proceedings to have been issued by the husband (indeed that was what I was expecting until I got to the eighth paragraph of the judgment!). The wife was clearly not forum shopping when she issued proceedings in France. Whatever, the case is a reminder that the English courts will usually recognise a properly obtained foreign divorce – if one does wish to ‘forum shop’, then it is not always enough to ‘get in first’ in the country where you want the divorce to take place.
The case concerned a Child Arrangements Order made in June last year. A particular paragraph within this order allowed the sperm donor to a same sex couple, referred to as ‘Brian’ – to visit their four year-old son several times a year. The donor’s parents would also be entitled to visit the boy twice a year with him.
The same sex couple, who are in a civil partnership, claimed this constituted “an unwarranted interference with their freedom to parent Aidan as they think best.”
Referred to as ‘Jane’ and ‘Carol’, the couple have two children, both born to Jane via artificial insemination. The donors in each case were different. The biological father of their older son, Harry, was a friend of a friend, who agreed to play no part in the child’s life. But the biological father of four year-old ‘Aiden’was a work colleague of Carol and originally a friend of both her and Jane.
He agreed to donate but the trio never explicitly agreed the basis on which he would he do so. He believed that his identity as the biological father would be made known to the child and that he would be allowed to see the child on a regular basis. Jane and Carol, however, disputed this, saying they had believed he would only see Aiden on a casual basis.
In the Court of Appeal, Lord Justice Peter Jackson explained:
“Aidan was born at the end of 2012, and by operation of law Jane and Carol are his only legal parents. For the next three years, Brian saw Aidan weekly or fortnightly by agreement. He did not take on a parental role, but the judge found that he was a familiar figure in Aidan’s life. His parents met Jane and Carol, both before and after the birth, attending family events together some eight or nine times over the course of three years.”
Then in 2013, Jane and Carol broke up. Carol began a new relationship with a man and Jane with a woman. Nevertheless they continued in their role in as parents to Aiden, said Lord Justice Peter Jackson.
“As time went on, and particularly after the parents separated, they began to find Brian’s requests to spend time with Aidan burdensome and troubling, and at the end of 2015 they started to impose boundaries. Relationships then became strained and there was then a period of some 18 months when there was no contact between Brian (or his parents) and Aidan. Contact with Brian restarted in May 2017, but that did not include his parents.”
In April 2016 Brian applied for a child arrangements order allowing him to see Aiden. Ultimately he was successful but only after a protracted series of hearings.
At the beginning of these, the two sides had been firmly at loggerheads, with Jane and Carol offering no contact and Brian seeking independent weekly visits. But eventually both parties changed their stance, thanks to advice from the legal guardian appointed to Aiden. Brian modified his application to contact once a month while Jane and Carol countered with four times a year. Eventually, the guardian proposed seven meetings a year, during which Aiden would not be encouraged to see Brian as a parental figure but instead he would given “the opportunity to have some meaningful level of contact with his donor that assists him in understanding his identity in a very low key way.”
Jane and Carol were firmly opposed to the idea of Brian’s parents attending any of the visits and appealed the child arrangements order on two grounds: that the biological grandparents had no real legal or psychological relationship to the child and had not sought or been given permission to apply for any order. In addition, insisted the couple’s barrister, the Judge had:
“…failed to carry out [a] sufficient analysis of Aidan’s best interests before making her order. She says that the judge did no more than identify that there would be benefit to Aidan from seeing Brian’s parents. She did not go on to consider and balance up the competing factors, such as the slender relationship they had with Aidan, the length of time since he had seen them, the possibility of confusion in introducing yet another set of grandparental figures, the parents’ strong opposition to an unnecessary extension of identity contact, and the fact that Brian’s parents had not (and quite possibly would not have) obtained permission to make an application themselves.”
Mr Justice Peter Jackson was unconvinced and rejected both grounds, saying that the first argument was “wrong in principle” and would introduce unnecessary complexity. In relation to the second ground, he concluded:
“I have some sympathy with the parents’ complaint in this respect. In a case of this sensitivity, the continuing involvement of Brian’s parents was an issue that deserved its own separate analysis, not least because the parents opposed their involvement (but not Brian’s), but also because Brian’s parents could not be said to be essential for the purposes of identity contact and because of the issue of possible confusion. The judge should, as [barrister] Ms Fottrell conceded, have gone further than to adopt the Guardian’s reasoning. She should have set out her own reasoning for her decision and dealt with the opposing arguments, something that she could no doubt have done quite briefly.”
However, he continued:
“…the order that the judge made was one that she was plainly entitled to make on the evidence before her.”
“Through this Bill I want to fundamentally change the way we as a country think about domestic abuse, recognising that it is a crime that comes in many forms – physical, emotional, economic. This is about creating a society that protects individuals and families at the earliest opportunity, before such abuse has a chance to escalate. This is a once in a generation opportunity to transform our entire approach to this terrible crime.”
Home Secretary Amber Rudd
Seeing as it is one of the biggest family law news stories for some time, I felt I should say a little bit more about the domestic abuse consultation Transforming the Response to Domestic Abuse, that was announced by the Home Office and Ministry of Justice last week. The consultation will seek views on measures to be included in the government’s draft Domestic Abuse Bill.
The first thing to say is that I agree entirely with Sarah Jane Lenihan, Senior Solicitor in Stowe Family Law’s London office, that stopping domestic abuse is an impossible task. Politicians of all sides regularly promise to ensure that a certain bad thing will never happen again. Of course, it is usually impossible to ensure any such thing. Sadly, that is certainly the case with domestic abuse, despite the Home Secretary and Justice Secretary saying in the foreword to the consultation that “this government is committed to doing everything we can to end domestic abuse.” No matter what new policies are enacted, and no matter what promises the politicians make, it will never be eradicated. The best that we can hope for is to reduce the incidence of domestic abuse to the lowest possible level and, as Sarah says, one of the best ways of achieving this objective is to raise public awareness, something that the consultation proposals aim to do, as we will see in a moment.
OK, having got that out of the way, on to the consultation. It is split into four parts: promoting awareness of domestic abuse, protecting and supporting victims, pursuing and deterring perpetrators, and ‘improving performance’, i.e., increasing “performance and greater consistency in the way all sectors respond to domestic abuse across all geographical areas.” I will deal with each in turn, although I should say at the outset that there is far too much in the consultation to cover everything in detail in one blog post. I will concentrate on the points that I think will be of particular interest to family lawyers, and apologise in advance if you think I have not mentioned, or glossed over, anything of importance – this is only a very brief look at a complex matter.
This includes such things as introducing a new statutory definition of domestic abuse and educating young people on ‘healthy relationships’. As to the latter, I would have thought that this should be an essential part of the education curriculum in any event – far more important than many of the esoteric topics that are taught in schools.
As to the new definition, I’m not going to comment on the specifics of what is included in it, which I suspect will alter as matters proceed. Instead, I’m more concerned with the fixation upon a definition. The problem is obviously that no definition of such a subject can ever be complete, and it is easy to see that some may consider that certain behaviour is not abusive, simply because it doesn’t fall within the definition. What is needed, as always, is the application of common sense, which will quickly determine what is abusive, and what is not. And in any event the emphasis upon a definition presupposes that the definition will become common knowledge. I very much doubt that it will, thus adding little to the awareness issue.
Protecting and supporting victims
There is a lot under this heading, but the main point of interest for lawyers is clearly the proposal that a new Domestic Abuse Protection Order (DAPO) be created. DAPOs could be made by either civil or criminal courts (although of course the two have different standards of proof) and could include conditions, such as that the abuser undergo compulsory alcohol treatment, or attend a programme to address their underlying attitudes or addictions. Further, electronic tagging could be used to monitor them. These ideas appear on their face to be eminently sensible, both protecting victims and dealing with the underlying issues.
This includes improving the (alleged) victims’ experience of the justice system, to ensure they come forward and support prosecution through to conclusion, and “ensuring that sentencing of domestic abuse related offences duly recognises the devastating impact of domestic abuse on victims and any children involved”.
As to the former, the consultation mentions for example the possibility of courts protecting alleged victims by using screens or video links. It does not, however (as far as I can see) say anything about protecting alleged victims from being cross-examined by their alleged perpetrators. As I have said here before, a reform to deal with this would have been brought in by the Prisons and Courts Bill, but for the general election.
As to the latter, new guidelines were of course issued by the Sentencing Council last month – see this post.
I don’t propose to say very much here – it is really about collecting and using relevant data. One proposal of note is the appointment of a ‘Domestic Abuse Commissioner’, “who would provide public leadership on domestic abuse issues and play a key role in overseeing and monitoring provision of domestic abuse services in England and Wales.” Call me old fashioned, but it seems to me that the modern answer to everything is to add to the ever-growing bureaucracy by appointing someone or something to oversee it, only to find that that person or body is completely toothless. I’m really not sure how a public leader on domestic abuse issues is likely to improve matters, but hopefully I will be proved wrong.
* * *
Will all or any of this transform the response to domestic abuse? It certainly has the potential to improve matters particularly, as I said at the outset, by raising public awareness. Of course, the trick is to raise awareness permanently, rather than just temporarily by publicising the issue – whether the promoting awareness proposals will do that, I somewhat doubt. As to the other proposals, perhaps the most significant are the new DAPOs and their conditions, and the protections for alleged victims in court (which will hopefully eventually include protection against cross-examination by alleged abusers – quite why this was left out of the consultation, I don’t know). I think these things will make a difference, although whether it is transformative is another matter.
You can read the consultation here. If you would like to respond, go here. Responses must be in by 31 May.
The government has launched its long-promised review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, commonly known as LASPO.
First announced in January last year, the so-called Post-Implementation Review is intended to reflect the significant changes to both the legal system and society in general since LASPO first came into force on April 1 2013. These include the rapid advances in information technology in recent years, which have opened up new channels to legal advice.
According to the official Ministry of Justice terms of reference, the original objectives of LASPO Act were:
To discourage unnecessary and adversarial litigation at public expense;
To target legal aid at those who need it most;
To make significant savings to the cost of the scheme; and
To deliver better overall value for money for the taxpayer.
The Post-Implementation Review will therefore “assess the impact of this set of policies against the aforesaid objectives.”
The Minister is now looking for interested parties who wish to submit relevant evidence for the review.
I’ve written here several times now about European Court of Human Rights (ECHR) cases in which a parent has complained about the failure of a country’s courts to secure the return of an abducted child under the Hague Convention. For example, there was the case of the father whose rights were breached by the failure of the Slovakian courts to enforce a return order, and the case of the mother whose rights were breached by the failure of the Polish courts to enforce return orders made in Ireland. When I first saw the recent case of Royer v Hungary I thought I was in for more of the same. However, it turned out to be something a little different.
In fact, it seems to me that the father’s application in Royer v Hungary was pretty well doomed from the outset, as he was not complaining about a failure to enforce, or a failure to deal with the case, but rather about the fact that the Hungarian court decided not to order a return, a decision it was perfectly entitled to make.
Briefly, the facts of the case were that the father is French and the mother is Hungarian. They met in 2003 and in 2009 the mother moved to France to live with the father. Their son was born in October 2013. However, the relationship soon broke down and on 4 January 2014 the mother returned to Hungary with the child, without the prior knowledge or authorisation of the father. The mother and the child continue to live in Hungary.
The father issued proceedings in the French court. The court found that the child had been illegally taken from France, and granted the father sole custody, with the mother being allowed supervised contact for two hours every other Saturday. However, the father did not commence proceedings for the summary return of the child under the Hague Convention on Child Abduction until nearly a year after the abduction.
The mother raised an Article 13(b) defence to the application. As regular readers may know, Article 13(b) of the Convention provides that the court of the state that is requested to order the return (i.e. the state to which the child has been abducted) is not bound to order the return of the child if it is established that “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
The Hungarian court found the defence to be made out. It concluded that if the child (who was still being breastfed) were returned to France, he would be placed in uncertain circumstances, only seeing his mother every second week for a couple of hours. Further the father, on his own submission, would be away from home a lot (presumably at work), during which time the father suggested that the child should be looked after by the father’s sister. Further to that, it was noted that the father had lodged his application almost a year after the abduction and that, although he had visited Hungary on a number of occasions, he had not been in contact with the child. For these reasons the Hungarian court dismissed the father’s request, under Article 13(b).
There were further proceedings in Hungary after this, but they did not essentially alter the position. The Hungarian courts refused to order the return of the child. The father therefore made his application to the ECHR, alleging that the failure of the Hungarian courts to order a return breached his right to respect for his private and family life, under Article 8 of the European Convention on Human Rights.
The ECHR held that there has been no violation of Article 8. Quite simply, the Hungarian court had correctly applied the relevant principles, had properly examined the allegation of grave risk, and had come to a reasoned decision based upon its findings. It was quite entitled to find that ordering the return of the child to France would have only caused him psychological trauma. The ECHR cannot question the assessment of the domestic authorities, unless there is clear evidence of arbitrariness. There was no such evidence here. On the contrary, the Hungarian court examined the case and gave judgments that paid particular consideration to the principle of the paramount interests of the child.
You can read the full report of Royer v Hungary here.
Photo of the Danube river in Hungary by Achim Raschka / CC-BY-SA-3.0 via Wikipedia
Victims of domestic abuse living in shelters and refuges can now vote anonymously, following changes to voter registration rules.
The estimated 12,000 residents of domestic violence shelters, along with those living in the community, will be able to register to vote without their name appearing on the public electoral role, in order to prevent their ex-partners using that route to track them down.
In addition, a greater number of professionals can now provide formal verification of a person’s status as a victim of abuse. These now include refuge managers, medical staff including nurses and midwives, and police inspectors.
The changes will also come into effect in Scotland on 1 April.
Tory MP Chloe Smith is the recently appointed Minister for the Constitution. She said:
“It’s simply unacceptable that fear of revealing their address to an ex-partner has stopped victims of domestic abuse from voting. Which is why this Government took decisive action and is making it easier for those at risk to register and vote anonymously.”
“I’m proud of how seriously this government is tackling domestic abuse – we have pledged £100 million in dedicated funding until 2020.”