Reported Cases
Anthony Louca Solicitors is an innovative firm that has achieved change...
Here are some of our reported cases.
Soulsbury –v- Soulsbury 2007 (EWCA)
A case on the enforceability against an estate of a promise to pay a lump sum to a former wife. Anthony Louca Solicitors acted for the wife in this matter.
The deceased had been ordered to make periodical payments to the wife and did so for many years. He asked his former wife to forgo the payments in return for a promise to leave her £100,000.00 in his will. She agreed. He made the will leaving her the legacy and the residue to their children. In 2000 he became ill and in 2002, on the day he died in hospital he married his long standing cohabitee. The marriage revoked his will. The second wife refused to pay the promised £100,000.00 and argued that it was irrecoverable.
Her argument was based on Lord Justice Thorpe’s dictum in Xydhis-v-Xydhis (1991) FL4683 that ordinary contractual principals do not apply to an agreement for the compromise of a claim for ancillary relief, such an agreement is enforceable only if endorsed by a Court order.
The Court of Appeal held that the dictum relied on was stated too widely in the case of Soulsbury. There had been no compromise of an application for ancillary relief because the wife was not bartering away her right to maintenance nor her right to go back to Court. She could have done so at any time. The agreement was a perfectly ordinary contract and as such was enforceable.
A minor (family proceedings: electronic tagging (2009) EWHC 710 FAM
The child at the centre of these proceedings had twice been wrongfully removed by the mother to her country of origin and returned under the Hague Convention. The mother had followed the child back to the UK and after an unsuccessful attempt to appeal the Hague decision was seeking contact with her child. The decision facing the Judge was whether she should allow the mother to spend substantial periods of time with the child under an interim order whilst the issues were investigated and given the fathers fears that she would remove the child again. The parties agreed that the mother should be under a curfew supported with the aid of electronic tagging. The judgement was published to assist practitioners who may seek similar orders by confirming that electronic tagging is available to the family courts. Anthony Louca Solicitors acted for the Respondent mother in this case. Mr Justice Singer stated that the innovation in this case was the mother’s suggestion that a package of protective measures should include a direction that she undergo electronic tagging. It was emphasised that such requirements would be unlikely to be appropriate save in very few cases.
RE Z (Children) 2009 EWCA CIV 430
An application was made by a mother for permission to appeal an order for unsupervised contact by their father to her two youngest children. Anthony Louca Solicitors acted for the father who had not seen the children and so applied for contact. The mother countered with allegations of domestic violence and the fear that the father would seek to abduct the children back to his home country of Algeria. After some delays to adduce further evidence a fact finding hearing of two days was fixed.
After the first hearing a violent incident took place outside the Judge’s room that resulted in injuries to the father’s cohabitee partner. The Judge was informed of the incident first thing at the hearing the next day and as a result he decided to cut short the fact finding hearing. He then made an order for unsupervised contact in favour of the father suggesting that if the allegations were proven then the father would require anger management and questioned the need for the fact finding.
On appeal it was resolved that the Judge must conduct a fact finding hearing. It is only at the conclusion of the fact finding hearing if the Judge finds as a fact, having heard all the evidence, that the children are in no way at risk or that, for some other reason, contact, unsupervised or unsupported can take place that he should and could make an order for contact.
The Judge also agreed that it was not the Judges role to decide upon anger management but simply to find whether the allegations are true.
In this case the Judge was only halfway through his conduct of the hearing when he announced at the beginning of the second day that the hearing would not continue and would even be adjourned so that it could continue at later date. The Judge appeared to have done so solely by reference to the ugly incident in the precincts of his Court after he had risen. How could the occurrence of a violent incident of that character logically lead to a conclusion that there was now no need to complete the fact finding hearing?
The result was that the Judge had never heard of the father’s evidence in response to the allegations against him by the mother of domestic violence.
Only when he had heard all the evidence and made findings of fact can a Judge determine where the best interests of the child really lie.
RE W 2007 EWHC 1219 (FAM)
Anthony Louca Solicitors acted for the Plaintiff father who sought an order under the Hague Convention and Child Abduction and Custody Act 1985 for the return of three children aged 7,3 and 1.
It was agreed that the children were habitually resident in New Zealand on 31 December 2006 and prior to this date the father consented to the children being retained in England. If the mother was successful in establishing that the father consented the Judge would not be bound by the general principal pursuant to article 13 of the Hague Convention to order the summary return of the children back to New Zealand.
The question in this case was whether the parent i.e the father subjectively intended to and did give unconditional consent to the retention of the children in England.
The Court was set to determine whether in all the circumstances of the case the wronged parent had in fact gone along with the wrongful abduction. In making his decision the Judge gave full effect to the policy of the Hague Convention, balancing the welfare of the children and the fundamental purpose of the Convention that wrongfully removed or retained children should normally be returned to their state of habitual residence. This had two principal objectives: first, to remedy summarily the wrongful retention both as a remedy of the wrong and as a general discouragement of such behaviour which is recognised as being contrary to the best interests of the children and secondly to enable welfare decisions in respect of the children to be taken in their state of habitual residence.
The father made it clear in evidence that he would not seek custody of the children. It was clear that the marriage had now irretrievably broken down so there was no question of a reconciliation. The children had been living in England for approximately 9 months, all the indications were that the children had firmly settled in England with the eldest child settled at school and the other two in nursery.
The mother obtained employment and was in the process of buying a house close to the child’s school and her family. The mother had no home or job to return to in New Zealand. The mother made it clear that she was deeply unhappy in New Zealand and would if the children were ordered to return make an immediate application in New Zealand to relocate with the children to England. If the Judge made such an order for the mother to return with the children to New Zealand it would no doubt have had a profound emotional impact on her.
The father was not prepared to accept that it would be devastating for the mother to return to New Zealand but agreed that she was not happy there and that she missed her family in England. The father believed that she could be happy in New Zealand if she set her mind to it. He realised for sometime that in the event of the marriage ending the children would end up living with their mother and they would make their home in England. He sought to procure a reconciliation for so long.
The Plaintiff father succeeded in his application as it was determined that the mother wrongfully retained the children in England in December 2006
DL -V-KM (2009) EWHC 1720 (FAM)
Anthony Louca Solicitors were instructed on behalf of the Applicant father and the case focused on the abduction of a little boy aged 4 and a half.
The father, aged 38 met the mother aged 35 in October 2003 and by February 2004 the mother was pregnant with the little boy. They had a rocky relationship with numerous separations and in June 2005 they applied for a license to marry and they married the following day in Las Vegas. Ten days after the marriage there was a furious argument and the father began divorce and custody proceedings in the New York Supreme Court. The mother was profoundly resistant to the father having contact with the child on the grounds at least in part that she was terrified that the father would abduct the little boy.
The Judge asked both parties whether either had obtained a passport for the little boy. Both denied any application for a passport had been made. The Judge ordered that no passport or equivalent documents were to be obtained. In fact the mothers answer to the Judge was a lie because she had indeed obtained a passport for the little boy and within a month of the appearance at Court she abducted the child to the United Kingdom. The father remained and has remained in New York. He continued with the proceedings in New York and was granted a decree of divorce and sole custody of the little boy. The father endeavoured to find the mother and child using private investigators but it was not until November 2008 that the father received information from an organisation called the National Centre for Missing and Exploited Children.
The mother had met a new man from Albania and had started cohabiting in the UK. The parties got married in Albania as the new man required a spousal visa and at the time of the marriage the mother was heavily pregnant with a further child. She came back to this Country and gave birth to her second child.
The mother allowed her first child to believe that the new man was his father. It certainly looked to the world generally that she allowed everyone to believe that this was the case.
The Court considered articles 12 and article 13 of the Hague Convention taking into account on the one hand the fact of settlement and on the other the policies of the convention namely that it is in the child’s best interest for his future to be determined in the Court of habitual residence that the Court should act as a deterrent to abduction and that no state should be seen as a safe haven for abductors.
It was very difficult for the Judge to exercise his discretion in this case because on the one hand there was a flagrant and indeed dishonest abduction and the policy of the convention cried out for a remedy of return. On the other hand the consequences of uprooting would be serious for a settled child.
The Judge goes on to say that he would probably have refused a return but he would have done so with some reluctance. The child’s welfare was better safeguarded by dealing with contact here rather than with all the disruption involved in a return with litigation in the USA.
Article 13 poses the question whether there would be a grave risk that the child’s return would place the child in an intolerable situation. One has to give effect to “grave risk” and one has to give full effect to “intolerable position”. The question really is whether what is likely to happen would place the little boy in an intolerable position. The Judge concluded that it may be alarming or upsetting but to describe it as intolerable in light of the experiences of this boy in his life would not be accurate.
The little boy was ordered to return to the USA.
LONDON BOROUGH OF RICHMOND – V- NISSEN (2010) EWHC 1584 (FAM)
Anthony Louca Solicitors acted on behalf of the Defendant. In this case two boys aged 10 and 13, with learning difficulties were removed from the jurisdiction by their mother and are now in Mexico.
It is alleged that the relationship broke down as a result of physical violence and abuse and threats made to the mother’s life.
The father made an application to issue proceedings in Mexico under the Hague Convention for the return of the two boys.
The father did not consent to the removal of the boys from the United Kingdom.
The mother did not obtain the permission from the father to remove the boys from and to retain these boys permanently outside the jurisdiction. She belatedly put in her oral evidence that she simply did not need that permission.
When considering article 13 of the convention this mother had fallen a very long way short of establishing the relevant consent. The mother did not obtain the fathers permission to remove the children from the jurisdiction from England and Wales and the Court ordered the issue of the fathers application for the return of the children to this jurisdiction.
9 May 2011 Reported Judgment handed down by Mr Justice Peter Jackson QC In The High Court of Justice Family Division [2011] EWHC 913 (Fam)
Successfully represented Respondent Husband concerning Appellant wife's Appeal of an ancillary relief order made in matrimonial proceedings and her Application to Annul a bankruptcy order. Wife's Appeal and application were dismissed.
Counsel for Respondent Husband instructed by Anthony Louca Solicitors was Mr Henry Clayton of 4 Paper Buildings.
