Private Law Disputes

Question 1

Where is the welfare principle found?

Answer 1

Section 1 Children Act 1989

Question 2

Does the welfare principle apply to applying for leave?

Answer 2

Re B - No, as it is a pre-filter stage. Violent grandmother, still granted leave

Question 3

Who can apply under Section 8?

Answer 3

Parents, Guardians, Step-Parents, Those with leave of the court

Question 4

What do we check when applying for leave?

Answer 4

Nature of application
Connection to Child
Risk of harm suffered

If it is a child also, we must look at whether they have sufficient understanding. This is done on understanding and maturity - someone as young as 14 can do it (Re SC).

Question 5

Will refusal of contact end residence?

Answer 5

Re G - whatever is best for the child.

Question 6

Will distance preclude a shared residence order?

Answer 6

Re F - No, can have longer periods at each residence. This happened with Scotland and England.

Question 7

When applying to court for permission to relocate, which two cases are crucial?

Answer 7

Re F (2015)- Took a holistic approach, and considered welfare of the child.
Payne v Payne - Paid huge attention to the fact that mother was primary carer.

Question 8

Examples of Prohibited Step Orders

Answer 8

Re A&B - UKIP candidate. Mother worried about involvement.
H v A - Noone was to tell father information about children’s schools or location as he was crazy and in jail for trying to burn down their house.

Question 9

Examples of Specific Issue Orders

Answer 9

F v F - Vaccination case. Daughters didn’t want it, father did.
Re G - Orthodox Jewish Couple split up and mother wants them in normal school. She gets it, as more beneficial to the children to be raised normally and not ostracising their mother.

Question 10

Case with presumption of involvement?

Answer 10

CP v AR - Child has a right to be brought up by natural parents unless it is contrary to their welfare. In that case initial judge had made order to have children living with grandparents

Question 11

Case where mother had indoctrinated children so much that father couldn’t be involved?

Answer 11

Re U - Children had to reside with mother.

Question 12

Judge erred not taking child’s view into account?

Answer 12

Re R - Appeal decision where judge criticised for not listening to wishes of child. CHild was mature, and this was an important issue.

Question 13

Allowing contact if there has been domestic violence?

Answer 13

Re LVMH - Domestic abuse not an absolute bar. However, do need to consider from child welfare perspective.

Question 14

Sperm Donor cases?

Answer 14

Re G, Re Z, - sperm donor granted leave as:
They had wanted him as a role model
He had been allowed to establish family life with the children.

L v C - Lesbian couple use sperm donor online. When lesbian couple split up, one takes the baby and doesn’t allow the other contact. Granted leave as the sperm donor was a “joint effort” and she’d made attempts to breastfeed.

Question 15

Does shared residence orders require exceptional circumstances?

Answer 15

No, as per D v D - just consider welfare principle.

Question 16

What is the importance of the natural parent?

Answer 16

Re G: Natural mother had residence mostly, and second female parent had secondary residence. When natural mother breached court order, they switched round the balance. HL restored the original order, saying natural mother status is important.

However, this isn’t to be taken as always with parents.

Re B: Child raised by grandparents due to dodgy parents..
Later, one parent seeks CAO. Initial court give it focusing on natural parent. SC Revert is to Grandparents, looking at child welfare is truly paramount.

Question 17

Permission to Relocate Internationally

Answer 17

Payne v Payne - Seemed to create a presumption towards allowing reasonable proposals by a primary carer.
Test outlined requiring: Genuine motivation for mothers move? Genuine motivation for fathers opposition? Impact of refusal?

Re F: Child to Germany. Court said we are to look at the whole account of the child’s interests.

F v L: Italian returning to Italy. Seemed to bring Payne back, as the judge focused on who could provide the best care first.

Question 18

Permission to Relocate Internally:

Answer 18

Courts have been unwilling to restrict internally.
Re L read down the exceptionality requirement, and held we should just look at whether it is in the child’s interests to move. This was a case where the mother was trying to move away from father.

In Re F, moving 9 hours away to one of the most remote areas of the UK = similar to international relocation. “Exceptional case” and held due to upheaval, not in childs interests. Didn’t like exceptionality test, but felt bound by it.