The Court of Appeal has set aside two interim orders made in a judicial separation case: one awarding the mother custody of her 18-year-old son, and another requiring the father to leave the family home. It held that the High Court had no jurisdiction to make either order on the grounds used.
The appeal was brought by the father against a July 2016 High Court decision. The Court of Appeal rejected his argument that the trial judge had prejudged the case through comments during the hearing. It noted that no application had been made for the judge to recuse herself and concluded that, viewed in context, her remarks did not establish a reasonable apprehension of bias.
The son, identified in the judgment as U., was about 18 and a half when the High Court made the custody order. The court said the Guardianship of Infants Act 1964 allowed custody orders only for people who had not reached 18. Although the Act provided for maintenance in some circumstances for young adults in education or with a disability, those provisions did not extend the court’s custody jurisdiction. The custody order for U. was therefore made without jurisdiction and had to be set aside. No appeal was brought against the custody order concerning the younger son, H.
The High Court had also directed the father to leave House 1 so that the mother and the boys could live there pending the full hearing of the case. The Court of Appeal said the order rested solely on the general child-welfare power in section 11(1) of the 1964 Act. The wife’s application for a barring order under the Domestic Violence Act 1996 had not been pursued, and the High Court had made no finding of domestic violence or other parental misconduct.
The appeal court held that section 11 did not clearly authorise excluding a spouse from a home in those circumstances. It said the impact on a person’s rights in their home required a clear statutory basis. It also rejected an inherent jurisdiction to make the exclusion order and said the constitutional child-welfare provisions did not supply the missing authority.
The Court of Appeal set aside both interim orders. It did not determine the judicial separation proceedings or make a final decision on custody or occupation of the home.