Precedents
establishing that a judge should take into consideration the likely effects
of his judgement, and modify his judgement in their light.
"A
judge was entitled to dismiss a father's contact application ....
following threats by the child's stepfather that if proceedings
continued he would reject the child and the mother." -
Kate
O'Hanlon, Barrister, Law Report, The Independent, 25june97,
p17."Court
of Appeal. |
In
determining an application for a residence order, a judge was entitled
to take into account the financial disadvantage which might result
if the child lived with the mother and the Child Support Agency
embarked on an assessment of the father's income.
Lord
Justice Thorpe said that the mother had criticised the judge for
attaching considerable weight to the financial considerations that
he envisaged would result from acceding to her application for a
residence order.
..
In
his Lordship's judgement, the judge was entitled to look at the
case realistically in the round and to anticipate what would be
the probable consequences of the mother giving up employment and
drawing state benefits as a full time carer.
The
exact effect of any residence order was incapable of precise determination
but the judge was entitled to look at the probable consequences.
Lord
Justice Leggatt gave a concurring judgement."
- Child
Support Agency relevant in residence, The Times, May 10th, 1995.
|
Court of
Appeal. [1995] 2 FLR 612 CA & [1995] FL 601 CA
"When
making a decision under s 24 of the Matrimonial Causes Act 1973
the court had to have regard to the effect on those directly affected
by it. That necessarily involved taking into account what would
happen to those deprived of the right to live in the matrimonial
home including, where council property was concerned, the effect
of what was known of the local authority housing policy.
....
The
court could properly take judicial notice of the approximate level
of rents and deposits required for private sector accommodation,
and assess the wife's likelihood of obtaining alternative accommodation
accordingly.
....
I
do not see how the court can perform its duty without taking into
account what will happen to those deprived of the right to live
in the matrimonial home and this necessarily involves having regard
to the effect of what is known of the local authority housing policy.
I do not think it is correct to describe the effect of such an approach
as being 'to direct the local authority to provide a house for
someone to whom it would otherwise not give a house' or 'to
manipulate local authority housing lists and to usurp the function
of the council'. The reality is that in a case such as this
the court and the housing authority [=father] have different but
interacting duties and functions and the court cannot but have regard
to the manner in which the performance by the housing authority
[=father] of its function is likely to affect the consequences of
the court's decision.
This
question is not one which is devoid of authority. In Firman v Firman
(unreported) 6 June 1996 this court held that it was proper for
the court to have regard to the likelihood of rehousing by the local
authority when reaching a decision under s 24 of the 1973 Act as
to which party should keep the tenancy of the matrimonial home..
...."
|
[1997] 1
FLR 27 JONES v JONES Court of Appeal, Morritt and Phillips IJJ, 29August1996.
Does
the father have an interacting role with the court, in the same way as
the local council has? Will the courts decide that the role of the father
in the family is less than that of the local council, so that the
precedent in JONES v JONES does not apply? - I.C.
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