Previous cases

This page is planned for up to date information on the developments in Family Law in England and in Italy. Members of Chambers will be entering relevant Family Law case reports in which they have been involved.

Recent Developments in Family Law

Agbaje v Akinnoye-Agbaje [2010] UKSC 13

The wife appealed to the Supreme Court in ancillary relief proceedings under Part III of the Matrimonial and Family Proceedings Act 1984 following the conclusion of divorce proceedings in Nigeria.

In this case, the Supreme Court restored the previous understanding of the opportunity for the English family courts to grant divorce financial provision even though a divorce may have been previously pronounced abroad.  The court further confirmed that the purpose of the legislation is to alleviate the adverse consequences of no, or no adequate, financial provision being made on divorce by a foreign court in a situation where the parties had substantial connections with England.

The amount of financial provision awarded under Part III will depend on all the circumstances of the case. But three general principles should be applied. First, primary consideration should be given to the welfare of any child of the marriage. Second, it will never be appropriate to make an order which gives the claimant more than she or he would have been awarded had all proceedings taken place within this jurisdiction. Third, where possible the order should have the result that provision is made for the reasonable needs of each spouse. 

Re W (Children) 2010 UKSC 12

In this case, the court considered the approach of the family courts to the decision as to whether a child should give live evidence. The Supreme Court found that the current law, which was held to establish a presumption against a child giving live evidence in family proceedings, could not be reconciled with the approach of the European Court of Human Rights, which aims to strike a fair balance between competing Convention rights. 

Striking the balance may well mean that a child should not be called to give evidence in a great majority of cases, but this is a result and not a presumption nor even a starting point. When considering this issue, the court must weigh the advantages that that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child.  The Supreme Court provided guidance in the form of a list of factors that should be considered when conducting this balancing exercise.

SA v KCC [2010] EWHC 848 (Admin)

This case involved judicial review proceedings brought on behalf of a 15 year old by her grandmother as her litigation friend against the local authority. The proceedings concerned the status of A and whether A was a child in need under section 17 Children Act 1989 or a looked after child as under section 22 of the Act. The local authority had been treating A as if she were a child in need as she was living with her grandmother.  A change in status would provide additional financial benefits and require the local authority to safeguard and promote A's welfare generally.

Considering section 23 of the Act, London Borough of Southwark [2007] EWCA Civ 182 and the correct approach to be adopted and noting that A was not a privately fostered child,  the judge found that A had been at all times whilst in the care of her grandmother, a looked after child.  The local authority was therefore ordered to pay the grandmother the appropriate weekly allowance for a looked after child.

There was considerable delay in bringing the judicial review proceedings by A and the grandmother but this was held not to have been prejudicial to the local authority.  It was therefore correct to only backdate the order by three months prior to the issue of proceedings. 

W (Minors) [2010] EWCA 520 Civ

Hague Convention

Appeal against Black J who took into account the views of three children whose father wished for them to return to the Republic of Ireland. It was upheld that children’s views should be heard more frequently in Hague Convention cases. However, it was confirmed that the views of an older child will hold greater weight than those of a younger child, despite the fact that a child of five’s views can be taken into account.

Vaughan v Vaughan [2010] EWCA Civ 349

Ancillary Relief - new partner

Appeal by a wife against a decision discharging periodical payments. The court held that the ‘second-wife impact’ is important when considering; 1) the extent to which the second wife’s position assists the husbands financial obligations to his first wife and 2) the effect of periodical payments on a husband when one considers the obligations he has towards his new family unit.

S (A Child) [2010] EWCA Civ 219

Private Law - changing residence

The case concerned an appeal by the mother against an order to change the child’s residence to the father. The court ordered transfer of residence, despite the age of the child (12), his wish to stay with his mother and the good standard of care offered to the child by the mother. The Court of Appeal ordered that direct transfer was inappropriate and a foster care placement should be utilised for 21 days. It was also clarified that the child’s threats of self-harm did not engage Article 2 as there was no evidence of such when the residence order was made.