Category Archives: Care Orders

In-law Evictions? David Renton blogs on the boundaries of occupation orders

Can I evict my mother in law?

Possibly not, it seems, unless you have an interest in land. The issue arose in a case I was recently in. Mother alleged domestic violence against father and his family members and sought non-molestation and occupation orders limiting his and his mother’s access to the family home. By the time I had been instructed, an interim ex parte application (albeit to last only for a week) had already succeeded.

Father, a privately paying party, supported the conversion of the interim order into a final order. Mother in law objected. She was the freeholder. Suffering from long-term illness, she had spent large sums of money converting parts of the property to make them suitable for her use.

Working through the different sections of the Family Law Act 1996, it was clear that section 33 did not apply (mother had no interest in the land), nor could sections 34-38 (all of which are capable of binding only present or former spouses or cohabitants).

With some evident regret, mother withdrew her applications for an occupation order at court, when this was pointed out to her, and a complex compromise was reached on terms favourable to mother in law.

But what struck me about the case was this: before making her application, mother had not stopped to ask where it was in the power of the court; and neither indeed had the District Judge, when making his initial order.

David Renton

 

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‘A’ is a must-read case for the media-savvy lawyer, blogs Chris McWatters

When the rules changed back in 2009 to allow the press inside the family courts, there was a real anxiety that the tabloids would run amok and hijack cases with their insensitive reporting of proceedings. So far, so that hasn’t happened, probably due to the rules preventing them from ‘jigsaw’ identification of the child.

 However, every now and then, the hacks come flooding in, and A(A Minor) [2011] EWHC 1764 (Fam) is clearly such a case. And when they do, it’s clear from A that you need to be pretty media law savvy if you want to keep them at arms length.

 Briefly, A is a case where the mother has been arrested for the murder her two and four year old sons, although as yet to be charged. A is her newborn baby, who is now subject to an interim care order whilst the murders are investigated. The mother also suffers from serious mental health problems.

 Inevitably, the death of two small children in suspicious circumstances arose press interest, but before anything was reported, the Local Authority applied for and were granted reporting restrictions in respect of the child. The Sun subsequently published a story entitled “Mum quizzed as two sons die in a month”, and went on to name the mother as well as her two dead sons.

 A psychologist reporting on the mother expressed in very strong terms how concerned he was that prolonged media pressure would put her at risk of self harm. The mother’s legal team in turn applied for an injunction preventing the press from naming her and other members of the family, which resulted in a contested hearing in the family division front of Mr Justice Baker.

 The battle that ensued between the mother (supported by the father and the guardian) and the press was a classic article 8 (right to family life and privacy) versus article 10 (freedom of expression) contest. However the legal argument was far more akin to those used in the media courts of Mr Justice Eady and Mr Justice Tugenhat, and indeed some of their recent judgments in press injunctions are referred to.

 In his judgment, Mr Justice Baker goes through this area of law since the implementation of the Human Rights Act, making extensive references to the relevant cases (such as Campbell v MGN Ltd [2004] UKHL 22, which sets out the balancing exercise that needs to be done between articles 8 and 10) as well as to the Press Complaints Commission Editors’ Code of Practice. Did, as was the issue in Campbell, the mother “have a reasonable expectation of privacy”? Or did the importance of preventing any interference in the reporting of crimes outweigh the importance of any infringement of the article 8 rights of the mother ?

 He ultimately concluded that the mother’s article 8 rights were outweighed by the importance of the media’s freedom of expression, having listened to extensive arguments by Frances Judd QC, representing mother, and Adam Wolanski, a media specialist from 5 Raymond Buildings, representing various press organisations.

 What’s striking from reading the case is just how subtle the arguments are in respect of this balancing exercise, and just how familiar any family specialist would need to be in dealing with the kind of arguments that they are likely to face from the freedom of expression camp. So if you do find yourself having to apply for a reporting restriction order in a family case, and you find yourself up against a representative of the press, then familiarisation with A, and the extensive case-law that it refers to is, in my humble opinion, almost definitely a pre-requisite.

Chris McWatters

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