Law Report: Case Summaries

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THE following notes of judgments were prepared by the reporters of the All England Law Reports.

Divorce

Niebor v Niebor; CA (Lloyd, Butler-Sloss, Roch LJJ); 14 July 1993.

Sections 25(1) and 31(7) of the Matrimonial Causes Act 1973, as amended by the Matrimonial and Family Proceedings Act 1984, required a judge to give first consideration to a child's welfare in financial cases.

Accordingly, where a consent order had been made under s 28(1A) disentitling the wife from applying under s 31 for an extension of maintenance after a five- year term, but the wife applied under s 31 to extend the period of maintenance, the judge had to give appropriate weight to the agreement of the parties embodied in the consent order, which in most cases would be a great deal of weight.

However, he also had to look at the welfare of the child and decide whether, as the first consideration, the detriment to the child from the refusal of the court to set aside or vary the consent order was sufficient to tip the balance.

James Holman QC and Lord Meston (William Bailey) for the wife; Alexander Dawson and Arthur Blake (Gouldens) for the husband.

Children

Re S; FD (Ward J); 27 July 1993.

Before making an interim care order in family proceedings under the Children Act 1989, justices had a mandatory duty under r 21 of the Family Proceedings Courts (Children Act 1989) Rules 1991 (SI 1395) to read any statements of substance of the oral evidence filed under r 17 together with any expert reports filed under r 18.

Here, no statement was filed and the justices refused to see the medical report, so there was no documentary evidence on which to base their exercise of duty under s 31 of the 1989 Act.

The proceedings were fundamentally flawed and the parents' appeal would be allowed. Since the court had power to receive further evidence on questions of fact under RSC Ord 55, r 7, an interim care order would be granted until the date of the substantive hearing.

Constance Whippman (Hamilton Williams & Co, Kingston) for the parents; Jane Hill (Assistant Chief, Merton LBC) for the local authority; Christopher Wood (Ormerod Wilkinson, Croydon) for the guardian ad litem.

Crime

R v Morhall; CA (Cr Div) (Lord Taylor of Gosforth CJ, Owen, Blofield JJ); 26 July 1993.

Where the defence of provocation was raised in a trial for murder, it was for the judge to decide whether any suggested characteristic was capable of being considered by the jury as being consistent with the concept of a reasonable man, under s 3 of the Homicide Act 1957, and capable of affecting the gravity of the provocation to the defendant. If the judge decided the characteristic was so capable, he should leave it to the jury to decide whether it was in fact consistent with the reasonable man and, if so, might have affected the gravity of the provocation to a reasonable man invested with that characteristic so as to make him lose his self-control.

However, a self-induced addiction to glue-sniffing brought on by voluntary and persistent abuse of solvents was wholly inconsistent with the concept of a reasonable man.

Daniel Worsley (Registrar of Criminal Appeals) for the appellant; Graham Parkins QC and Simon Spence (CPS Chelmsford) for the Crown.

European law

Hubbard v Hamburger (Case C- 20/90); European Court of Justice; 19 July 1993.

A requirement in the law of a member state that a national of another member state, who in his capacity as executor of a will had brought proceedings before one of its courts, had to lodge security for costs while nationals of the first member state were not subject to such a requirement, was discrimination on the ground of nationality, contrary to arts 59 and 60 of the EEC Treaty. The right to equality of treatment laid down in Community law did not depend on the existence of reciprocal agreements concluded between member states. Nor did the fact that the main proceedings were based on the law of succession mean that the Treaty did not apply. The effectiveness of Community law did not vary according to the various branches of national law which it might affect.

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