Weekly Family Law Update September 3, 2020

Negotiation, interim care order and child protection: The last week in family law

A High Court judge has emphasised the duty upon parties to financial remedy proceedings on divorce to negotiate reasonably, and has warned of the costs consequences if they fail to do so.

Giving judgment in a case in which the wife sought two-thirds of the assets and an order that the husband pay her costs Mr Justice Mostyn found the wife’s position to be unreasonable, and that she should therefore suffer a costs penalty.

He said: “It is important that I enunciate this principle loud and clear: if, once the financial landscape is clear, you do not openly negotiate reasonably, then you will likely suffer a penalty in costs. This applies whether the case is big or small, or whether it is being decided by reference to needs or sharing.”

Family succeed in having interim care orders set aside

The Court of Appeal has allowed an appeal by the mother and maternal grandparents against interim care orders made in respect of three children, aged six, four and three.

The children’s parents had married in 2013 and separated four years later. Initially after the separation, the children remained with the mother but in early 2018 she took them to the father’s home where they lived until January 2019. In January 2019, the father took the children to the maternal grandparents’ home and left them there, indicating that he did not wish to resume care in the future.

The local authority then became involved, and care proceedings were eventually issued. At a case management hearing on the 25th of June last the judge ordered that the children should be removed from the family home under an interim care order, and placed in foster care. The mother and maternal grandparents appealed against the order.

Giving the leading judgment of the Court of Appeal Lord Justice Baker said that he was satisfied that the judge’s decision to remove the children from the grandparents’ home under an interim care order was wrong. The judge had not given sufficient consideration to the emotional harm that the children would suffer by being removed from their home, where they had lived for nearly eighteen months.

He found that the harm which the children were perceived to be at risk of suffering if they stayed in the home was “nebulous and speculative” and “manifestly outweighed” by the harm which they were certain to suffer if removed from the home.

Accordingly, the appeals were allowed. The interim care orders were discharged, and replaced with child arrangements orders under which the children are to reside with the grandparents until the conclusion of the proceedings, or further order.

Warning of rise in child protection referrals as schools reopen

The Labour Party and the charity The Children’s Society have warned of an increase in child protection referrals after schools reopen in England.

The Children’s Society has said it expects referrals to children’s services to rise in the coming weeks, with schools playing a pivotal role in spotting neglect and abuse. A government study has found an 18% drop in referrals to children’s social care services during the coronavirus lockdown between April and June, compared with the average over the three previous years.

Both Labour and The
Children’s Society called for the government to commit extra resources to deal with the situation.

The policy manager for The Children’s Society, Iryna Pona, said that six months of school closures “has left many vulnerable children hidden from view”, with the expected upsurge likely to put significant extra strain on social care services and family courts.

She went on: “It is absolutely vital that these services are given the guidance and resources they need to manage the demand and ensure that vulnerable children are protected from harm.”

A government spokesman commented: “We have worked hard to keep the justice system running throughout the pandemic – cases involving the welfare of children have been prioritised, remote hearings increased and we have opened extra courts so cases can be heard as quickly as possible.

“We are also increasing the number of social workers placed in hundreds of schools and investing over £100m in remote education, which can help vulnerable children stay in contact with schools and social workers.”