We are very pleased to announce that the case of K (Children) (Powers of the Family Court) [2024] EWCA Civ 2 has been named as the Case of the Year at the Family Law Awards 2024.
The Judgment can be read here.
Sacha Hall, instructed by the Children’s Guardian, alongside Will Tyler KC (36 Group) and Meredith Major (New Court Chambers), represented the Appellant in this case.
The appeal concerned the powers of judges of the family court generally, with particular reference to the effect of section 31E(1)(a) of the Matrimonial and Family Proceedings Act 1984 (‘the MFPA 1984’).
Case Report
I represented 2 children in private law proceedings (aged 15 and 12 by the conclusion of the case) through their rule 16.4 Guardian. The children lived with their Father and were refusing to have any contact with their Mother and older sibling. Following a fact find hearing the Court made a finding that the Father had alienated the children against their Mother. The Local Authority was invited to file a s37 report and this resulted in them issuing public law proceedings. The children were made subject to Interim Care Orders, removed from their Father’s care and placed with a maternal uncle. At the final hearing the mother of the children subject to interim care orders, applied for a common-law injunction to prevent their Father from continuing to exercise parental control over their Apple ID accounts, via Apple Family Sharing. Apple Family Sharing is a software service that enables family members to share calendars, photographs and videos, and device locations. If used in bad faith, it provides numerous opportunities for an adult to communicate with a child in a manner that bypasses the ‘contact’ element of a typical care plan or s8 order.
The injunction was sought in the following terms:
“The Father shall by 4pm on 30 June 2023 provide to the Local Authority the details of his Apple ID and password and thereafter shall provide all cooperation necessary to effect the transfer of the parental controls of B and A’s Apple ID accounts …”
The application was refused by the judge at first instance. The Guardian instructed me to appeal the refusal to make the injunction as he believed that it was not in the children’s best interests for their Father to continue to exert influence over them through his control of their Apple ID accounts.
The President confirmed that the judge – as a judge of the family court to whom the case had been properly allocated – certainly had the power to make such an order, notwithstanding that she was (i) not a judge of the High Court or (ii) a judge with a section 9 ticket. Her power derived from 31E(1)(a) of the Matrimonial and Family Proceedings Act 1984 (‘the MFPA 1984’), which is available to all judges of the family court, including magistrates.
The appeal judgment culminates in simple guidance that cuts through a thicket of legislation. It reaffirmed the wide and flexible powers of the family court. Where proceedings are properly issued the Judge or magistrate to whom the case has been allocated may make incidental and supplemental orders of a kind that could be made under the inherent powers of the high Court where the purpose of such orders is to give effect to their substantive decision.
This case is likely to have a wide application. That is because enables all judges of the family court to provide immediate practical remedies to satellite problems arising in all types of public and private family law proceedings without having to ponder transfer or reallocation.
