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Family Law Journal: July/August 2016

Chris Bryden and Kate Jones compare and contrast the Civil Procedure Rules 1998 and the Family Procedure Rules 2010 on key areas of overlap

The Family Procedure Rules 2010 (FPR 2010) were implemented with a view to updating the provisions in the Family Proceedings Rules 1991, but also with the additional benefit of harmonisation with the Civil Procedure Rules 1998 (CPR 1998). FPR 2010 and CPR 1998 align regarding a number of provisions, but there remain a number of areas where differences have left room for uncertainty, particularly in matters that cross into both areas and, as a result, often require subsequent judicial input. In many areas of family law practitioners are required to become increasingly familiar with CPR 1998 and consequently find themselves reaching for guidance on both sets of provisions in conducting their practice.

Deborah Levy and Ciara Moore consider the disclosure requirements on an application to preserve assets, and the high bar for obtaining such an order

In Kanev-Lipinski v Aharon Lipinski [2016] the court was concerned with the correct approach to an application to continue a freezing and asset preservation order that had been obtained by the claimant on a without notice application.

Rebecca Harling and Ciara Moore analyse the Supreme Court decision in Re B and the circumstances in which a child may change, or retain, their habitual residence

Issues regarding children within same-sex cohabiting families have seen a newly emerging genre of case law and an evolving legal definition of what it means to be a modern family. In Re B (A Child) [2016] the Supreme Court was concerned with the removal of a child, B, to Pakistan by her sole legal and biological parent, without the prior knowledge, or consent, of the child’s other (non-legal and non-biological) parent, following the breakdown of their same-sex relationship. This case provides welcome analysis and clarification of the modern international law concept of habitual residence, how this tallies with national law (namely when pre-existing habitual residence is lost and new habitual residence gained), and whether a child can ever be in legal limbo without a habitual residence. It also touches on the parens patriae jurisdiction. In Re B, the Supreme Court had to inter alia determine the point at which B had lost her habitual residence, in light of the principles previously determined by the Court of Justice of the European Union (CJEU) and the domestic courts.

Sonny Patel sets out a reminder of the financial remedies available in England and Wales following an overseas divorce

Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984) gives the courts in England and Wales the power to grant financial relief after a marriage has been dissolved (or annulled) in a foreign jurisdiction. There are equivalent provisions regarding civil partnership at Sch 7 to the Civil Partnership Act 2004 (CPA 2004). Part III, MFPA 1984 empowers the courts in this jurisdiction to alleviate adverse consequences where no financial provision is made by the foreign court, or where the provision made is inadequate.

Rayner Grice details the new offence of controlling and coercive behaviour and what might constitute such behaviour

The long-running radio soap opera The Archers caused controversy earlier this year with its storyline featuring one of the main characters, Helen Titchener, assaulting her husband Rob, which has led to her being remanded on a charge of attempted murder. Should our sympathy lie with Rob or, in fact, Helen who has suffered years of controlling and manipulative behaviour from Rob? The storyline has also raised the questions of whether action should have been taken earlier to deal with Rob’s behaviour, before it got to crisis point, and whether Helen even realised what she was being subjected to.

In the conclusion to a two-part consideration of children and immigration law, Katherine Illsley and Agata Patyna look at how other jurisdictions tackle this issue, and how UK authorities might improve the procedure

The first part of this article considered the legal system in place for unaccompanied children seeking asylum, the problems facing local authorities and the children going through the asylum and care process, and whether the system is fit for purpose. There is little doubt that the number of unaccompanied asylum-seeking children (UASCs) is placing a significant financial and administrative burden on a number of local authorities; the question is whether the best interests of children are being approached as a primary/paramount consideration, or as an inconvenience?

Jennifer Moore examines the approach of the courts on an application to relocate a child, and the factors that will be taken into account

Case law sets out the principles that the court must now apply in determining both internal and external relocation cases, and the Court of Appeal was clear in Re C (Internal Relocation) [2015] that there is no distinction between an application to relocate a child within the jurisdiction, and an application to relocate a child to another country. This article will summarise the principles to be applied by the courts, the questions the court will ask in undertaking a welfare enquiry, and what the most important question for the court is likely to be.