MICHAEL BAILEY BARRISTER CASE WINS

[Alison J Stevens]

Notable Cases

RE L (HABITUAL RESIDENCE: DOMESTIC ABUSE) sub nom ROTHERHAM MBC v (1) J (2) K (3) L (BY HER CHILDREN'S GUARDIAN) [2016] EWHC 1844 (Fam)

A 17-month-old child born in the Ukraine to a Ukrainian mother and a British father was habitually resident in the Ukraine for the purpose of care proceedings. She had spent the first 13 months of her life in the Ukraine with her mother, who had submitted a visa application with the intention of moving permanently to the UK but had changed her views as a result of the father's abusive behaviour. There was no evidence that the mother or child had become integrated into the community in the UK at the time when protective measures were taken.

SUTTON LONDON BOROUGH COUNCIL v (1) MH (2) RH (3) NH [2016] EWHC 1375 (Fam)

An application for a care order relating to a 16-year-old boy was adjourned where he had lost capacity to conduct the proceedings. An order was made restricting the mother's access to documents because she had previously disseminated information to persons not involved in the proceedings.

AD & AM (Children)(Fact Finding: Re-Hearing) [2016] EWHC 2912 (Fam)

In the light of new expert evidence the court reconsidered medical issues in relation to its previous finding that serious head and spine injuries suffered by a 10 month old baby had been non-accidental and caused by the mother; now finding that the spine injuries were of 'unknown cause'.

AD & AM (Fact-Finding Hearing) (Application for Re-Hearing) [2016] EWHC 326 (Fam) (24 February 2016)

In which Cobb J granted permission to re-open the NAI fact finding decision that he made in 2013 (see below). The re-hearing outcome is referred to above.

 R (Fact finding), Re [2015] EWFC B97 (29 May 2015)

This was a fact finding hearing before HHJ Laura Harris in s31 Care Proceedings where non-accidental injury was alleged. An unusual feature in this case was that the Court, having heard various experts’ evidence, made a direction that the matter be adjourned and a further expert instructed in relation to timing of injuries.

 C (A Child), Re [2015] EWCA Civ 539 (10 June 2015)

Per Aikens LJ, Elias LJ, Ryder LJ. Looks at the requirements for an FPR Part 25 application for an expert to succeed. The father instructed this Counsel on a direct public access basis to appeal against a decision to instruct an expert in Children Act proceedings in which the father was a litigant in person. The appeal was successful and the matter sent back to the court for a rehearing.

Erlam & Ors v Rahman & Anor [2015] EWHC 1215 (QB) (23 April 2015)

Involving a petition aimed at the disqualification of the former mayor of Tower Hamlets. This Counsel was led by Duncan Penny QC. As is well known, Commissioner Richard Mawrey QC found in favour of the petition.

 J (Discharge of A Care Order) [2014] EWFC B199 (20 November 2014)

The maternal grandmother applied for a discharge of a care order and defined order for contact pursuant to s34, s39 of the Children Act. HHJ Staite refused the application to discharge but the Local Authority agreed to an increase in the maternal grandmother’s contact. Subsequently, the maternal grandmother has with the agreement of the Local Authority secured unsupervised and then overnight stays with her grandchild.

Re B (Placement Order) [2104] EWFC B180

A decision of HHJ Laura Harris following s31 Care Proceedings

 AD & AM (Finding of Fact: Non-Accidental Injury) [2013] EWHC 4859 (Fam) (19 July 2013)

Findings made by Cobb J in a non-accidental injury case at the fact finding stage of s31 Care Proceedings. At the welfare stage the children were returned to their parents care under a Supervision Order. A subsequent criminal prosecution against the mother was held to be an abuse of process for want or prompt disclosure. In 2016 (see above) an application was made to re-hear the findings of non-accidental injury based on the medical evidence obtained in the criminal proceedings.

RE M (A CHILD) sub nom PM v (1) MB (2) M (A CHILD) [2013] EWCA Civ 969

A parental responsibility order should normally be made on a father's application and it would be a rare case when it was not. However, an order was properly refused where there was clear evidence that a father was likely to misuse the order to seek to exercise control over the child and, indirectly, the mother.

HB (Mother) v (1) PB (Father) (2) OB (A Child by his Guardian) & CROYDON LONDON BOROUGH COUNCIL [2013] EWHC 1956 (Fam)

Where a local authority's failure to prepare a proper report as directed under the Children Act 1989 s.37 led to wasted hearings in private law family proceedings, it was appropriate to make a non-party costs order against the local authority allowing a father to recover his wasted costs. The local authority was sufficiently closely connected with the litigation to justify a non-party costs order, and its systematic and specific failures carried the case over the "exceptionality" threshold.

C v C   B4/2012/2100

Respondent appealed a final order by HHJ Copley made an at interim hearing following a fact finding hearing over 8 days where 53 findings of domestic violence were made against the litigant in person father, directing direct unsupervised contact and making a non-molestation injunction. McFarlane LJ gave permission to appeal on paper: appeal conceded shortly before the full hearing and remitted back to the CC for final welfare stage hearing.

RAMJAN v GENERAL DENTAL COUNCIL [2012] EWHC 818 (Admin)

It was unnecessary to interfere with a professional conduct committee's decision to remove a dentist from the dental register where he had acted dishonestly in treating a patient in a wholly unjustified way, without consent, which caused her irreparable damage.

AA v (1) NA (2) K, J & Q (BY THEIR CHILDREN'S GUARDIAN) (2010) 2 FLR 1173, Mostyn J

Findings of domestic violence were set aside where a judge had erred by failing to explain his reasons, firstly for allowing a finding of litigation misconduct to inform his view about a party's overall credibility, secondly for accepting the evidence of a complainant despite significant inconsistencies in her evidence and thirdly for significantly revising his draft judgment to include a previously unmentioned finding that a father had struck his children.

RE I (A CHILD) [2010] EWCA Civ 319, CA

Information that a mother might not have been the sole perpetrator of her child's injury but was a possible perpetrator of that injury was not sufficient to merit a retrial of a fact-finding hearing in care proceedings but was information that would be given to the children who were removed from her to give them the best evidence in later life as to why they were removed.

RE W (A CHILD) (SHARED RESIDENCE ORDER) [2009]  2 FLR 436, CA

A shared residence order was appropriate even though the child was in the mother's care for 75 per cent of the time. Such order might be appropriate where it provided legal confirmation of the factual reality of a child's life, or where it might be psychologically beneficial to the parents in emphasising the equality of their position and responsibilities.

NJ V (1) ESSEX CC (2) CMJ (BY HER CHILDREN'S GUARDIAN) [2007] 1 FLR 77

Although there were features of the manner in which the local authority reached and communicated a care plan that fell short of proper standards of fairness and transparency in the conduct of care proceedings there was no infringement of the European Convention on Human Rights 1950 Art.6, as the departures from good practice were not sufficiently substantial to affect the fairness of the proceedings.

(1) MANIJHAR ALI (2) SHAIFIQ SIDDIQI (3) FOKRU UDDIN (4) SHAMSUL ISLAM SOMDUL (5) DAVENANT CENTRE v (1) MAHMUD ABDUR RAUF (2) SHEIKH ALIUR RAHMAN (3) SHEIKH AMINUR RAHMAN (4) MIZANUR RAHMAN CHOUDHURY [2006] EWHC 3420 (Ch)

Although the court declined to grant the interim remedies sought by members of a charity committee, their suitability as final orders after any trial was not decided.

RE C & H (CHILDREN) [2004] EWCA Civ 1222, CA

The trial judge was entitled on the evidence to find that injuries sustained by the defendants' child were accidental and not the result of a deliberate act.

A (A CHILD) (2003) 2 FLR 1, CA

Where the judge had not had before him expert evidence on Somali custom and practice in relation to naming children, the order to change the registered name of the child was set aside.

K v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2002)  Times, July 22, CA

There was insufficient proximity to found a negligence claim between the victim of a rape, committed by a man due to be deported but released by the Secretary of State for the Home Department pending an application for the writ of habeas corpus, and the secretary of state.