Private Law
November 2021

01 December 2021
Mr Justice Mostyn determines a rare application for security of costs in a family law matter
MG v AR [2021] EWHC 3063 (Fam)

The Father was the applicant in the substantive proceedings but respondent to this application. The proceedings related to “M” a child of 8 years old who has a dual British-Canadian citizenship.

There had been different sets of proceedings relating to M for some time including a CAO in November 2015 (M to live with Mother) and schedule 1 child maintenance order in December 2016 (Father ordered to ay a lump sum and costs).

In October 2017 and April 2018 the Mother took M to Dubai to visit her Father on holiday. There is a dispute as to the reason for this – the Mother claiming a holiday, the Father claiming they were moving to resume cohabitation and relocation. No findings were made. Mother alleges that Father seized her and M’s passport and she was forced to remain in Dubai. In any event in May 2019, Mother got M’s passport and fled to Lebanon and from there to Canada where they had been since June 2019.

The father applied in the Superior Court of Justice of Ontario for a 'non-Hague' return order of M to Dubai. This was granted and consequently appealed by the Mother and such an appeal was allowed, Fairburn JA’s central ratio being that the case should have been returned to the Central Family Court in London. Father was ordered to pay Mother’s costs. A year after the judgment of this appeal, the Father finally makes the application to the Central Family Court for return of M to Dubai.

This matter appeared before Mostyn J on the Mother’s application for security for costs. The power to award security for costs in civil proceedings has long been known and utilised. In family however, the Judge did not identify a reported case post 2010 that has dealt with an application of this type. He therefore gives a very comprehensive judgment.

The power to award security for costs is provided for in FPR Part 20, Chapter 2, rules 20.6 and 20.7. The purpose of an order for security for costs is to protect a party in whose favour it is made against the risk of being unable to enforce any costs order they may later obtain. The Judge acknowledges that in the family sphere the normal rule whether the case is about children or about money, is no order for costs unless litigation misconduct or other exceptional circumstances are demonstrated.

At paragraph 11 of his Judgment the judge sets out the sequence of steps he needs to take before elaborating upon those at length throughout his judgment:

  1. Gateway conditions need to be satisfied (matters of fact not discretion)
  2. how discretion should be properly considered (a-e factors to consider)
  3. the procedural requirements for making the application and if granted how security should be given; and
  4. how default in complying with the order should be dealt with.

Following his sequence of steps the Judge does award an order for security of costs. Paragraph 53 of the judgment comprehensively summarises the principles to be applied to come to that decision.

The Judge awards security for costs in the sum of £50,000, making a reduction to ‘reflect the lateness of application; the uncertainties of litigation; and the prospect of a reduction on a detailed assessment.’ The security was to be provided by bank transfer to Mother’s solicitors within 14 days.

When considering if the order is in the best interests of M and a ‘just’ order, the Judge answers both affirmatively highlighting that he is strongly satisfied that the Mother has a solid claim to an order for costs and it is in M's interests that her mother should be able to resist what is a dubious claim by her father with representation.

A lengthy judgment from Mr Justice Williams on applications and issues not pursued.
M, (Fact Finding, False Allegations, Section 91(14)) [2021] EWHC 3077 (Fam)

In February 2020, Mother issued applications in respect of 3 of her 5 children: J (aged 13), K (aged 12) and L (aged 10) including variation of a previous order to provide that the children should live with her and permission to remove the children from the jurisdiction on a temporary and a permanent basis. In September 2020, the Father issued an application for a live with order in his favour, a prohibited steps order, and a s.91(14) order.

Very serious allegations were made against the Father both by the Mother and the children. The Mother’s allegations included serious physical violence, grooming of her and forcing her into sex work. A finding of fact hearing was due to commence in January 2021 however the Recorder heard some evidence from the Mother and consequently reallocated the matter to High Court judge level.

As of February/March 2021 the Mother appeared to be no longer represented and she persistently failed to attend the hearings in the matter, albeit she would send a position statement/written position.

In February 2021, the Mother returned the three children to the Father’s care (he vacated the family home until such a time the local authority confirmed he could reside with the children). The Mother wanted to relocate to Australia with her two younger children. In the Mother’s documents to the Court she no longer wished to pursue her applications but maintains the truth of the allegations against the father. She did not seek any orders because she refuses to engage in any form of coparenting with the Father and refuses to play any role in the girls lives which the Father does. She is unable to participate in the hearing.

The Guardian supported a final CAO to the Father and a s.91(14) order for at least two years.

The Judge noted that although the Mother no longer actively pursued her applications, nor was she in attendance at the final hearing he refused her application for permission to withdraw the applications as it was in the children’s best interests for some conclusions to be reached.

In respect of the fact-finding aspect, the Judge was of the view that the court is still required to attempt to reach conclusions where it is possible to do so referring to Re H-N and others [2021] EWCA Civ 448 (see also Re F (restrictions on applications) [2005] 2 FCR 176 ).

The Father, social worker and Guardian gave evidence at the hearing. The Mother clearly did not however the Judge provides a lengthy and comprehensive analysis of the evidence both oral and written in his judgment, coming to the conclusion that the Father’s evidence was consistent, mostly honest, and child focused. The Mother’s evidence however (written) and information/evidence about the Mother led the Judge to considering the Mother ‘being dishonest when it suits her to be so’ and ‘self-centred’.

The Judge did not find that the Mother’s allegations were established. He found that the allegations made by the Mother have been almost entirely fabricated. In relation to the allegations that from the children these were not established on the balance of probabilities. In relation to other allegations, the Judge did not find it necessary to determine those given that the ‘overall picture that emerges of the father is of a child-centred and caring father who provides a caring home for the children in which their needs are prioritised and met.’

The Court ordered the children should remain living with their Father; a s.91(14) order for 4 years preventing the Mother from making any application for the children to live with her; the mother is to disclose the whereabouts of the children’s passports and deliver to the father within 28 days; contact with the Mother to be left to the discretion of the Father subject to a condition that direct contact is to be supervised by paternal uncle or another agreed individual.

Mr Justice Poole makes the very sad declaration of a presumption of death following the disappearance of a devoted family man and father in May 2011.
Re P (Presumption of Death) [2021] EWHC 3099 (Fam)

The matter was brought by D who acts as Litigation Friend for her son, C in this claim for a declaration under the Presumption of Death Act 2013 that her son's father, P, is presumed to be dead. D and P were partners who co-habited and had the child C together.

P was born on 9 March 1972 in Surrey but spent his childhood in Kent. P was a devoted father who had family he was close to, and a network of friends. In April 2011 he flew to South America with his friend G to enjoy a holiday and they travelled to Peru, Columbia and Ecuador. P kept in regular contact with D until, when he was in Lima, Peru and his communications abruptly ceased – both with D and his loved ones. No one has seen or heard from P or G since then and despite many attempts to trace there is no information about what has happened to P after his last known communication of a text to D on 16 May 2011.

In accordance with court directions, D placed an advertisement in the Berkhamsted and Tring Gazette concerning this application. The advertisement was compliant with the provisions of rule 57.21 and Practice Direction 57B of the Civil Procedure Rules 1998. There was no response and the disappearance of P was to be considered by reference to the Presumption of Death Act 2013.

Section 1 of the Act provides: that where a person who is missing is thought to have died, or has not been known to be alive for a period of at least 7 years, any person may apply to the High Court for a declaration that the missing person is presumed to be dead.

The court was satisfied that the evidence establishes that P was domiciled in England and Wales on the day he was last known to be alive, and that he had been habitually resident in this jurisdiction for over a year before that date.

The Court were satisfied that the requirements as per s.9 of the Act were met.

In respect of whether the case fell under s.2(3) or s.2(4) of the Act, although the Court saw it arguable that the evidence proves that P had died given that there was a sudden cessation of communication which has now persisted for over ten years in the context of a man who had a partner and young child, and family, to whom he was close – the court had no evidence of the surrounding circumstances in Lima at the time communications ceased and a finding that a person has died should only be made on clear evidence of their death.

Therefore, the Judge found that the facts of the case sit more easily within s.2(4) in that the evidence establishes that P is missing and has not been known to be alive for over seven years. Therefore, pursuant to s.2(4) of the Presumption of Death Act 2013, the finding of the Court was that P is presumed to have died at the end of the period of 7 years beginning with the day after the day on which he or she was last known to be alive. The last day on which he was known to be alive was 16 May 2011, and therefore he is presumed to have died at midnight on 16 May 2018.

The Court makes an order declaring the presumption of P's death at midnight on 16 May 2018.

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