We have had some significant judgments over the past few months, with AGNI changing the established law on the making of Deprivation of Liberty orders. Other cases considered in this update include s91(14) (revisited), pro-bono cost orders and consideration of domestic abuse as ‘conduct’ in financial remedy proceedings.
Case Law
1. AGNI [2026] UKSC 16
This judgment changes the standard practice of the Cheshire West acid test (continuous supervision and control and not being free to leave now no longer being the test). Below are links to the judgment, note to Judges (which is a summary of the judgment itself), together with thoughtful observations by Nuffield Family Justice on how it will impact children under 16
a. AGNI Judgment – A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998
b. Note to Judges – AGNI Note 2nd June – FAH
2. Re D (CHANGE OF CIRCUMSTANCES: DOMESTIC ABUSE ALLEGATIONS)
Re D (Change of circumstances domestic abuse allegations) [2026] EWCA Civ 969
This was an appeal due to the Court accepting the recommendations of a Cafcass Officer’s s7 report, in which the Cafcass Officer had themselves decided if the allegations of domestic abuse were true (no findings made by Court or fact-finding hearing listed). The recommendation was therefore focussed on the risk of exposure to domestic abuse and paid insufficient attention to the welfare checklist. The Court was wrong to accept this report and its conclusions.
3. Re C (2026) (A Child) (Care Orders, Section 20 Accommodation, and Deprivation of Liberty)
Confirmation that s20 at the end of a care case can be an appropriate outcome and that a care order is neither necessary nor proportionate if there is cooperation from the parents and proper exercise of their PR. The Local Authority and Guardian sought a care order, with the Guardian supporting one being made because of the theoretical risk in the future of withdrawal of consent. The Court felt that this hypothetical situation was not reflective of what had already passed.
4. Re D (2026) (Adoption: Notification of Husband and Relatives)
D (Adoption: Notification of Husband and Relatives), Re – Find Case Law – The National Archives
The Court granted permission for members of the child’s family NOT to be informed about a proposed adoption of the child. There were a multitude of personal and cultural reasons to hide this from the family, which included her husband and maternal relatives. It is an unusual order to make, but the circumstances were both tragic and exceptional.
5. Mahmoud v Glanville [2025] EWHC 2395 (Fam)
This private law children matter involved a cost order being made against the mother AND a pro-bono cost order against her. The mother’s conduct in the proceedings had been “wholly unreasonable and reprehensible”. She had made multiple baseless allegations, with the goal of frustrating and delaying the proceedings. The father had to switch to pro-bono representation as a result of the extended proceedings. The Court awarded £95k costs and £20k pro-bono costs. It is an excellent judgment to remind us that even when we have a pro-bono client, it is no excuse for the other party to act unreasonably and that if they do, there is scope to seek costs.
6. Re A and T (Children) (Appeal: Duration of section 91(14) order)
The Court had made a s91(14) order for a period of 3 years. The appeal Court found that the trial Judge did not apply Re P guidelines and so did not justify the duration of the order or address proportionality. The appeal Court found that the ‘lives with’ element could have been 3 years, but would have restricted the ‘spend time with’ aspect to 12 months. The proceedings had gone on for about 4 years, largely due to the Court being unable to list matters in a timely manner.
7. LP v MP (2025)
LP v MP [2025] EWFC 473 (22 November 2025)
This matter involved the consideration of ‘conduct’ within financial remedy proceedings and whether coercive and controlling behaviour can be included. The Judge summarises this infinitely better than I could:
In my judgment, where a party has been found responsible for coercive controlling behaviour within a marriage, especially when that behaviour includes a significant element of violence, the negative financial impact may well not be easily measurable, and any loss will only usually be capable of a very broad evaluation at best. That does not however mean that such an impact will not be present. Whilst the statutory test – that the conduct must be such that it is ‘inequitable to disregard’ – really means no more in ordinary language than that the behaviour should be taken into account if it would be unfair to ignore it, Peel J is right that the higher courts have set the threshold for applying s.25(2)(g) at a very high level. Nonetheless, I consider that there is a real risk of unfairness to victims of violent or coercive controlling behaviour, if the lack of readily quantifiable financial loss prevents the courts from even considering the fairness of taking their assailant’s behaviour into account in determining the outcome of a financial remedy application. Such behaviour may well have hard-to-predict but potentially far-reaching consequences, in some cases for the victim’s prospects of achieving self-sufficiency, in others for a fair financial outcome in all of the circumstances. That does not mean that the fact of such behaviour will inevitably lead to a different award, but in the right case, it clearly should do.
