Michael Bailey

Family

Michael is a qualified Family Law Abitrator, trained mediator and takes Direct Public Access clients.

He has vast experience of public law care proceedings for parents, Local Authorities and Guardians. He has been led on many occasions: by Anna Pauffley QC, Peter Hughes QC, Richard Anelay QC, Judith Hughes QC, Paul Storey QC, Teertha Gupta QC as well as acting as leading junior counsel. His practice is also in private law: contact, residence, and domestic violence fact finding cases, as well as international abduction (Hague and non-Hague Convention and Brussels II(R)) and relocation cases abroad and in the UK; Schedule I Children Act child financial provision.

Michael also has a wealth of experience in High Court and Principal Registry of the Family Division trials and has appeared on a number of occasions in the Court of Appeal.

Administrative & public

High Court & Court of Appeal: Local Authority duty of care to vulnerable children and adults; Court of Protection.

Matrimonial finance & divorce

Michael has experience of world-wide and UK freezing injunctions; setting aside dispositions; family partnership disputes; third party interests; pre-nuptial, pre-separation and post separation agreements; pension equalization; foreign marriages.

Trusts of land & Appointment of Trustees Act 1996

Many contested hearings at CC level on behalf of unmarried litigant(s).

Personal injury

High Court & County Court: Including medical negligence: misdiagnosis & delay in treatment; workplace injury (including MRSA settlement), occupiers liability, Road Traffic Accidents.

Professional negligence

County Court: In area of divorce (barristers’ liability) and trusts of land (solicitors’ liability).

Notable cases

J, P & Q (Care Proceedings)[2024] EWCA Civ 22: Court of Appeal-where allegations of sexual harm are not proved a court is not required to ignore a parents attitude to risk which may form part of a finding of failure to protect while those allegations are unresolved.

Re AA Case No: ZC23P01163 (as yet unpublished) 20.05.2024: HHJ Laura Harris Central Family Court: UK Courts have jurisdiction under common law to hear an application for permission for the discharge of a special guardianship order notwithstanding a child is habitually resident abroad given the provisions of the Family Law Act 1986 (by not in terms expressly excluding  the making of a variation or revocation of a special guardianship order)  and the Hague Convention 1996 (which is not in terms triggered by a variation/revocation application under the Family Law Act 1986).

J (Children): 27.10.22: Court of Appeal-appeal against the order of Mr Justice Keehan concerning the relationship between a mother’s dishonesty and her wish to keep information about her HIV status confidential. Local Authority and Children’s Guardian conceded the  appeal shortly before it was due to be heard per rule 16.1 of Practice Direction 30A.

RL v Nottinghamshire CC & Anor (Rev1) [2022] EWFC 13: Mostyn J introduces a new test for re-opening a fact find in children proceedings, based on issue estoppel notwithstanding previous case law that held that the inquisitorial function of the courts in children cases means that the strict doctrine of res judicata can rarely apply.

H (A Child Parental Responsibility: Vaccination) [2020] EWCA Civ 664: Court of Appeal-Local Authority by operation of s33(3)(b) Children Act may exercise its parental responsibility under a care order to vaccinate a child without parental consent and without recourse to the inherent jurisdiction of the High Court unless there are significant features that militate against vaccination being in the best interests of the child

RE (1) D (2) A (3) M (Children) [2018] EWCA Civ 386: The Court of Appeal (Moylan LJ, Peter Jackson LJ, Asplin LJ) held that a judgment that lacked structure, or was confusing, made a judge’s reasoning harder to follow had increased the possibility of an appeal. It was obligatory in cases raising welfare issues to consider the welfare checklist, and to show that all the relevant factors had been considered. To omit any reference to it, or to relegate the exercise until after the court had stated its conclusion, also risked an appeal.

RE L (Relocation: Second Appeal) sub nom L v F [2017] EWCA Civ 2121: the Court of Appeal (Peter Jackson LJ, Newey LJ, Singh LJ) held that Russell J had erred when allowing a mother’s appeal against a refusal of her application to relocate to Italy with her five-year-old child. The first instance judge had reached her decision in the context of all the evidence and with full awareness of the alternative options, and criticisms of her approach were misplaced.

D (Child) sub nom F v L [2017] 3 FCR 460: [2018] 1 FLR 375: Mrs Justice Russell sitting in the High Court allowed an appeal in relation to an application for permission to relocate a child outside the jurisdiction and a cross-application for a shared care child arrangements order, holding that the first instance judge had erred in not determining the care arrangements before the relocation application.

RE F (Child) sub nom F v (1) Buckinghamshire County Council (2) Carla Andrews (3) Craig Stillwell (4) Effie Stillwell (A child by her guardian) [2017] EWFC B19: A local authority was given permission to withdraw its application for a care order in respect of a very young child. Injuries found on the child upon her admission to hospital had resulted not from shaking by her parents as initially alleged but from a rare disorder known as Ehlers-Danlos syndrome type IV, a condition associated with easy damage to tissue and easy bleeding.

RE L (Habitual Residence: Domestic Abuse) sub nom Rotherham MBC v (1) J (2) K (3) L (By her children’s guardian) [2016] EWHC 1844 (Fam): A 17-month-old child born in the Ukraine to a Ukrainian mother and a British father was habitually resident in the Ukraine for the purpose of care proceedings. She had spent the first 13 months of her life in the Ukraine with her mother, who had submitted a visa application with the intention of moving permanently to the UK but had changed her views as a result of the father’s abusive behaviour. There was no evidence that the mother or child had become integrated into the community in the UK at the time when protective measures were taken.

AD & AM (Children) (Fact Finding: Re-Hearing) [2016] EWHC 2912 (Fam): In the light of new expert evidence the court reconsidered medical issues in relation to its previous finding that serious head and spine injuries suffered by a 10 month old baby had been non-accidental and caused by the mother; now finding that the spine injuries were of ‘unknown cause’.

AD & AM (Fact-Finding Hearing) (Application for Re-Hearing) [2016] EWHC 326 (Fam) (24 February 2016): In which Cobb J granted permission to re-open the NAI fact finding decision that he made in 2013 (see below). The re-hearing outcome is referred to above.

C (A Child), Re [2015] EWCA Civ 539 (10 June 2015): Per Aikens LJ, Elias LJ, Ryder LJ. Looks at the requirements for an FPR Part 25 application for an expert to succeed. The father instructed this Counsel on a direct public access basis to appeal against a decision to instruct an expert in Children Act proceedings in which the father was a litigant in person. The appeal was successful and the matter sent back to the court for a rehearing.

Erlam & Ors v Rahman & Anor [2015] EWHC 1215 (QB) (23 April 2015): Involving a petition aimed at the disqualification of the former mayor of Tower Hamlets. This Counsel was led by Duncan Penny QC. As is well known, Commissioner Richard Mawrey QC found in favour of the petition.

AD & AM (Finding of Fact: Non-Accidental Injury) [2013] EWHC 4859 (Fam) (19 July 2013): Findings made by Cobb J in a non-accidental injury case at the fact finding stage of s31 Care Proceedings. At the welfare stage the children were returned to their parents care under a Supervision Order. A subsequent criminal prosecution against the mother was held to be an abuse of process for want or prompt disclosure. In 2016 (see above) an application was made to re-hear the findings of non-accidental injury based on the medical evidence obtained in the criminal proceedings.

Appointments

• Family Law Arbitrator (2014)

Publications

Severance of Joint Tenancy & Trusts of Land update (2015)

• Re B & Re B-S, Public Law update: Seminar to Children Guardians (2014)
• Court of Protection & Testamentary Capacity: Seminar (2014)
• Capacity & Marriage: Seminar (2014)
• Bankruptcy in Divorce: Seminar (2013)
• Marriages with a Foreign Element: Seminar (2013)
• TOLATA: Relief in Sight?: Seminar (2013)
• Re J: Assessing “Real Possibility” Risk: publication (2012): Lexis Nexis
• Pre-Nuptial Agreements: what is left to Agree?: Seminar (2012)
• Occupiers Liability & Voluntary Assumption of Risk: Seminar (2011)
• Shortfalls, the Triad & Non-Accidental Injuries: Seminar (2010)
• Probate & Testamentary Capacity: Seminar (2010)
• Remedying the Breach?(breach of A8 ECHR): Tanfield publication (2009)
• Domestic Violence: FLA 1996, PAHA 1997 & DVCVA 2004: Seminar (2008)
• Child Protection & Disclosure: Seminar (2005)

Qualifications

ClArb

• GDL
• LLM (Human Rights)
• BA (Hons)

Memberships

• Family Law Bar Association