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News Essentials: 11th February 2023

News Essentials: 11th February 2023 | Children In Law |
A brief summary of the essential family law news and cases from the last week:  NEWS Study exposes the extreme vulnerability of children su...
econorooteror's comment, May 22, 5:44 AM
mocc's comment, September 7, 12:36 AM

Good Law Project in renewed bid for judicial review challenge over placements of children in care outside of local area

Good Law Project in renewed bid for judicial review challenge over placements of children in care outside of local area | Children In Law |
The Good Law Project has renewed its application for permission to bring a judicial review challenge over the numbers of children in care being placed outside of their local area.
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General guidance on electronic court bundles | Courts and Tribunals Judiciary

General guidance on electronic court bundles | Courts and Tribunals Judiciary | Children In Law |
Please read how this guidance might affect your judicial role
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Family Law Week: Re O (A Child: The Vienna Convention on Consular Relations 1963 [2021] EWHC 908

Home > Judgments Re O (A Child: The Vienna Convention on Consular Relations 1963 [2021] EWHC 908 The court was concerned with O who was born in 2007 and thus 13 years old at the time of judgment. She is a citizen of the Democratic Republic of the Congo ('DRC') and arrived in the UK around 2nd August 2020. It appears that O’s father died in prison in 2018 and in July 2020 O, her brothers and mother were arrested. O evaded detention and was cared for by a friend of her mother’s K, who eventually brought her to the UK and left her at a bus stop. ___ On the 4th August she was taken into police protection and then placed in local authority foster care. On 14th September the local authority left a message at the Embassy of the DRC in London, notifying them that one of their citizens had been placed in foster care, but received no reply. On 12th November 2020 the court made an interim care order. O missed her family but did not wish to return to the DRC as she believed she would risk being killed if she returned and was strongly opposed to the authorities in DRC being given any information about her. The court found no reason to doubt her account of 'horrific' experiences. O was doing well in and the care plan was for her to remain in foster care and receive psychological help. The discrete issue for the court was to decide if the local authority is under a duty to notify the Congolese authorities that O is the subject of public law proceedings. The local authority and the children's guardian, both sought a declaration that such non-notification was lawful and proportionate The court reserved full judgment until the Issues Resolution Hearing (IRH) but decided on an interim basis that Article 37 of the Vienna Convention on Consular Relations 1963 ('The Vienna Convention') was engaged and that respect for international Conventions would normally impose a duty upon the local authority to inform the relevant authorities in the DRC, but in the circumstances of this case it was 'plainly not in her best interests' to do so. Following the IRH the Judge confirmed this interim decision and provided fuller reasons. The court examined closely the relevant provisions of the Vienna Convention. Article 36 provides that States should keep other States informed with regard to the nationals of one State who end up detained in the other, and that consular officers shall be free to communicate with and visit those nationals of their State. Article 37 imposes a duty on the State who is dealing with a foreign national to inform that person's consulate without delay if a guardian or trustee has been appointed for a minor or person otherwise lacking capacity. However, this is 'without prejudice' to the operation of laws and regulations of the State concerning such appointments. The court therefore confirmed that Article 36 was not engaged but Article 37(b) was. The court referred to the judgment of the former President Sir James Munby in the case of Re E (A Child) (Care Proceedings: European Dimension) [2014] EWHC 6 (Fam). He set out at paras 47-48 the requirements of 'good practice' in this area which was to allow free communication and access between a foreign national and their consular authority. The court should normally accede to any request by the foreign state for an accredited official to attend hearings and obtain relevant documents. The court should make sure that the relevant consular authority has been told about the foreign national child who is represented by a guardian or litigation friend.  If the court wishes to adopt a different approach then it is essential to hear submissions and set out clearly the reasons for its decision. The court would need to balance the need for local authorities to respect its obligations under the Vienna Convention (see In Re JL and AO [2016] EWHC 440) while at the same time considering circumstances where the foreign State ought not to be informed. An example of this was given at page six of advice given in July 2014 by the Department for Education,  "Working with foreign authorities: child protection cases and care orders": "Social workers should inform the relevant Embassy when a child with links to a foreign country has become the subject of a child protection plan, has required immediate protection or has become the subject of care proceedings, unless doing so is likely to place the child or family in danger and provided any necessary consent to disclose information has been obtained. Decisions should be linked to a robust and thorough risk assessment." The Vienna Convention, has not been incorporated it into domestic law by an Act of Parliament and so the court therefore needed to consider what binding force it had. As a general and important principle of public policy, the UK should respect the comity of nations and obey an instrument binding under public international law. Therefore the domestic courts are bound to consider Article 37 of the Vienna Convention as a 'necessary but not sufficient consideration in applying domestic legislative duties'. In this case, the court found that Article 37(b) did not impose an absolute and binding duty in all circumstances to notify a foreign authority where a court appoints a guardian in respect of one of its nationals. O's case was an example of one of those rare cases where 'it would wholly inimical to the welfare best interests of the child to give the requisite notice to the foreign authority.' Case summary by Sarah Phillimore, Barrister, St John's Chambers For full case, please see BAILII
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‘My baby was taken away for months over tiny bruises and a fracture that didn’t exist’ | News | The Sunday Times

‘My baby was taken away for months over tiny bruises and a fracture that didn’t exist’ | News | The Sunday Times | Children In Law |
A couple had their baby taken away for nearly three months after tiny bruises on his shins at his eight-week health check set off a child-abuse investigation.They missed his first Christmas and went...
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Adoption: 'Our sons' birth family turned them against us'

Adoption: 'Our sons' birth family turned them against us' | Children In Law |
There are calls for more support for adoptees - as social media searches for birth families rise.
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Care Orders at home, and abandoning search for missing children

Care Orders at home, and abandoning search for missing children | Children In Law |
This is a decision by MacDonald J Manchester City Council v D (Application for Permission Withdraw Proceedings after Abduction) [2021] EWHC 1191 (Fam) (11 May 2021) ( It was a case where three children who were at home with the parents under Interim Care Orders were removed to Pakistan...
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Undoing an adoption order | The Transparency Project

Undoing an adoption order | The Transparency Project | Children In Law |
It’s well known that adoption orders made in England and Wales cannot be ‘unmade’. That is partly why they are sometimes described as extreme, draconian or ‘the last resort’ if made against birth parents’ wishes. We have written about this, and the very few exceptions, here and here. A new judgment from Mrs Justice Theis has just been published, AX v BX & Ors (Revocation of Adoption Order) (Rev 1) [2021] EWHC 1121 (Fam), in which she does set aside adoption orders, and she helpfully reiterates the principles. She describes this application as one to ‘revoke’ the orders but I tend to use the term ‘set aside’ to distinguish this type of application from one to revoke placement orders. A problem is that there is no legislation to define this type of application – it has to be made under the inherent jurisdiction (or possibly as a very late appeal out of time). In the Adoption and Children Act 2002, an application to ‘unmake’ a placement order is clearly to ‘revoke’ and an application to ‘stop’ an adoption order being made is clearly to ‘oppose’, even though the grounds are similar. The important thing to note about this new case is that the adoptees are aged 16 and 18 and were adopted ten years ago. So a very different situation from one where it is likely to be in a young child’s welfare to stay in a settled adoptive home. Background to this case A and B were adopted in 2011, when they were aged eight and six respectively, by Mr and Mrs X. The adoption broke down in 2018 and A has subsequently been living with her birth mother and half siblings and B with another birth relative. At the stage of this application, everyone supported the adoption being set aside. Evidence was submitted about a lack of support at an early stage for the adoptive family. Support for adoptive placements at the early stage, including sensitive management of any transition from foster care, has been shown to be crucial in long term success. (This research is discussed in the recent Family Justice Council seminars). Sadly, A had been removed from a three year foster placement where she had been having contact with her mother to losing all contact with them and she gave evidence that she hadn’t wanted to be adopted. She now has a son who is part of her birth family and the fact that all official documentation records her as the child of Mr and Mrs X cause her great distress. Mr and Mrs X were greatly upset by the breakdown but are now also distressed if and when contacted by agencies as A and B’s parents. Theis J emphasised that although these unusual facts and the highly exceptional circumstances led her to the conclusion that the orders should be set aside, the legal principles were essential to that decision and she restated these at para 80. Legal principles At para 80: (1) An adoption order is a transformative order that changes the child’s status in a way that is intended to be legally permanent. (2) Once made the effect of an adoption order is to extinguish any parental responsibility of the natural parents and any continuing legal relationship between the natural parent and the child. By virtue of s 67 ACA 2002 the child is treated in law as if born as the child of the adoptive parent(s). (3) The only statutory ground for revocation is provided by s 55 ACA 2002 when, pursuant to s 1(7) ACA 2002, the court’s paramount consideration is child’s welfare throughout his life. (4) There are strong public policy reasons for not permitting the revocation of adoption orders once made based on (i) the intended permanent and lifelong nature of such orders; (ii) the damage to the lifelong commitment of adopters if there was a possibility of challenge to the validity of the order, and (iii) the impact on the availability of prospective adopters if they thought the natural parents could, even in limited circumstances, secure the return of the child after the adoption order was made. (5) There is jurisdiction to revoke an adoption order under the inherent jurisdiction of the High Court. Any discretion is severely curtailed where an adoption order has been lawfully and properly made and can only be exercised ‘in highly exceptional and very particular circumstances’ (per Webster [149]) (6) Although each case will turn on its own facts, the highly exceptional circumstances must comprise more than mistake or misrepresentation or serious injustice and amount to matters such as a fundamental breach of natural justice. (7) Welfare can, in appropriate cases, be taken into account in deciding whether to exercise the court’s discretion where the highly exceptional and particular circumstances of the case justify it (see Re M, Re B, Re PK and Re O). The extent to which it can, or should be taken into account will vary, depending on the circumstances of the particular case. Decision Applying these principles, the judge concluded that the only factor weighing against the application were public policy considerations; although important, these have to be balanced with the other considerations. Even bearing in mind the important public policy considerations, in these highly exceptional and very particular circumstances. the balancing exercise came down firmly in favour of the orders being set aside. The age of these adoptees is one of the relevant factors. There are some interesting points raised about the use of the inherent jurisdiction to protect someone who has already reached the age of 18, but to have arrived at different outcomes for A and B would have been wrong. It is interesting that Theis J identifies section 1(5) of the Adoption and Children Act 2002 (the child’s welfare is paramount) as the single statutory basis for an application that was clearly never envisaged in that Act. Comment As Polly Morgan has written (Polly Morgan (2020) ZH v HS & Ors (Application to Revoke Adoption Order): three groups of revocation cases, Journal of Social Welfare and Family Law, 42:2, 246-248, DOI: 10.1080/09649069.2020.1751935), it is possible to try to categorise attempts to set aside an adoption into three types: procedural irregularities that have led to a breach of natural justice (may succeed); where the adoption was ill-starred; and where there was a mistake in the court finding the threshold criteria in the care case had been reached (as in Webster). The case of A and B would come within the ill-starred category. However as Polly wrote, such applications are normally: …doomed to failure. In Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239 the child, as an adult, sought to appeal his adoption by an Orthodox Jewish couple on the basis of mistake of fact, after discovering his Muslim Arab heritage. The Court of Appeal held that To allow considerations such as those put forward in this case to invalidate an otherwise properly made adoption order would … undermine the whole basis on which adoption orders are made, namely that they are final and for life as regards the adopters, the natural parents, and the child. The same reasoning has been applied in several subsequent cases, such as Re PW [2013] 1 FLR 96, an unsuccessful application 51 years out of time made on the basis that adoption had had a devastating effect on the applicant adoptee; and Re W (A Child) (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] EWHC 1957 (Fam), an unsuccessful application based on psychological benefit to the child in circumstances in which she had been rejected by her adoptive parents. The outlier is PK v Mr and Mrs K [2015] EWHC 2316 (Fam), which also involved an application based on the benefit to the child, but which was successful in ‘highly exceptional and very particular circumstances’ including adopter abandonment and birth family reunification. The outlier of PK appears to have been joined by a second ‘exceptional’ case, for A and B. Image: Thanks to Nick Youngson, the Blue Diamond Gallery, under Creative Commons licence We have a small favour to ask!  The Transparency Project is a registered charity in England & Wales run largely by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it.  We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page.  Thanks for reading!
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Recurrent care proceedings: five key areas for reflection from the research

Recurrent care proceedings: five key areas for reflection from the research | Children In Law |
All professionals involved in the family justice system have long been aware that some parents will experience more than one set of care proceedings. Some parents return to court on many occasions and lose multiple children to public or kinship care, or to adoption. This cycle of returning to court and having subsequent children removed is now commonly referred to as ‘recurrent care proceedings’. There is a growing body of research providing evidence of the prevalence of recurrent proceedings in England and Wales, the circumstances of the mothers and fathers who experience recurrent proceedings, and the impact on them of having children removed in this way. There is also growing evidence from evaluations and from a recent mapping study of the range of services now in existence to support parents who have experienced, or are at risk of experiencing, recurrent proceedings. The evaluations also provide an insight into effective ways of working with parents who have experienced recurrent proceedings. The mapping and evaluations also highlight the gaps in provision for fathers. Most services focused initially on mothers, and although an increasing number of services work with couples, there is little provision specifically for fathers. This briefing note brings together the key messages from this research. It also raises points for reflection for family justice practitioners about the response to mothers and fathers who experience recurrent proceedings.
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Cafcass granted extra £8m for 2021-22 to tackle record caseloads

Cafcass granted extra £8m for 2021-22 to tackle record caseloads | Children In Law |
Family courts body Cafcass to allocate extra Ministry of Justice funding on recruiting social workers to meet demand and alleviate pressures with number of open cases at record high...
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Lies and Lucas in the Family Court

Lies and Lucas in the Family Court | Children In Law |
Andrew Bagchi QC and Anna Lavelle examine an important Court of Appeal ruling on fact-finding hearings and Lucas directions, and considerations of children giving oral evidence in family proceedings.
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Directors give partial backing to proposed asylum reforms for unaccompanied children

Directors give partial backing to proposed asylum reforms for unaccompanied children | Children In Law |
ADCS supports use of evidence-based scientific age assessments, changing criteria for initial checks by immigration officers and establishing national board to oversee system, amid widespread opposition to changes from social work groups and charities...
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Judge approves order to keep boy in residential accommodation at likely cost of £750k

Judge approves order to keep boy in residential accommodation at likely cost of £750k | Children In Law |
A High Court judge has approved a local authority’s application for a care order that will see a boy nearing his teenage years continue to stay at a registered children’s home at a cost of £9,500 a week and potentially a total amount of £750,000, despite the parents' wishes that he should return to live with his mother with such support as might be put in place.
mocc's comment, September 7, 12:36 AM

President appoints 26 experts to panel tasked with increasing transparency in Family Court

President appoints 26 experts to panel tasked with increasing transparency in Family Court | Children In Law |
The President of the Family Division, Sir Andrew McFarlane, has appointed senior members of the judiciary and government officials alongside legal professionals and media representatives to his proposed Transparency Implementation Group (TIG).
econorooteror's comment, May 22, 5:45 AM

Zahawi: take children into care when 'any inkling of harm'

Zahawi: take children into care when 'any inkling of harm' | Children In Law |
Children should be removed from their families if there is "any inkling of harm to them, the education secretary has said.
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‘Fully reporting the evidence heard in care cases requires an expensive and time-consuming application process’ | The Transparency Project

‘Fully reporting the evidence heard in care cases requires an expensive and time-consuming application process’ | The Transparency Project | Children In Law |
This is the view of the Sunday Times in its editorial today, ‘The Sunday Times view on public transparency: A secrecy fixation shrouds decisions that affect us all’, which features a report by Emily Dugan, ‘Our baby was taken from us for months – for a skull fracture that didn’t even exist: A Cardiff couple endured a nightmare after tiny bruises on their son’s legs led to an inquiry into suspected child abuse’. Both these pieces are behind a paywall. We anticipate a court judgment to be published on BAILII shortly, when we will be able to write about the case. The case concerns a misdiagnosis of a fracture in an eight-week-old baby that led to an application for a care order and his being removed from his parents and older brother for three months. The article sets out details of a serious miscarriage of justice and traumatic experience that directly resulted from a mistake made by a hospital paediatrician. It is understandable that the Times says that knowledge of such matters is in the public interest. However, as Emily concludes: ‘Even when parents have been exonerated by the court and had parental responsibility restored, they are not free to talk about what happened to them. A review of transparency in the family court by its president is under way. Change cannot come quickly enough.’ The editorial comments that the publisher had to make a court application and incur significant legal costs to allow Emily’s article to be published, even though the family supported her and were not to be identified. Nevertheless the Cardiff and Vale University Health Board ‘spent taxpayers money’ trying, through the courts, to stop the publicity. [EDITED 17.05.2021. For clarification, the Health Board did not oppose publication in general but wanted a further costly hearing about identifying individual professionals, a hearing which the judge refused, but the article does not name them in any event.] The parents would have been prevented by section 12 of the Administration of Justice Act 1960 from telling a journalist what happened in the court proceedings, or showing her the court papers. Even if they did, she would have not been able to write about it publicly if the section 12 order had not been lifted or partly lifted by a judge – this would be the expensive court process to which the editorial refers. We recently published Sir James Munby’s submission to the Transparency Review, in which he examines the damaging effects of section 12 on public confidence in family justice. More explanation should be possible when we see the judgment. In the meantime, Emily’s report is notable not only for having seen the light of day, but also for its depth and balance.
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Landmark laws to keep children safe, stop racial hate and protect democracy online published

Landmark laws to keep children safe, stop racial hate and protect democracy online published | Children In Law |
The Online Safety Bill will help protect young people and clamp down on racist abuse online, while safeguarding freedom of expression.
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Current provision of Domestic Abuse Perpetrator Programmes

Prior to the pandemic, the family justice system was under enormous pressure with increases in numbers across all areas of public and private family law.[…]...
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Webinar: Newborn babies in care proceedings

Webinar: Newborn babies in care proceedings | Children In Law |
Webinar: Newborn babies in care proceedings 26th May 2021 17:00 - 26th May 2021 18:30 The separation of mothers and babies within hours or days of an infant’s birth is a very severe form of intervention in family life, fraught with ethical, legal and procedural challenges. Nuffield FJO research, carried out by academic teams from Lancaster University and Swansea University since 2018, has revealed that the number of newborn babies who are subject to care proceedings in England and Wales has increased – by more than double in the last decade. The discovery of significant variation in applications to court across the regions has prompted additional concern. Meanwhile, new research to be published this month examines the widespread and increasing use of hearings for the first time. At this webinar, participants will hear from the researchers behind the Nuffield FJO studies as well as from a range of professionals and family members. They will discuss how vulnerable mothers and babies could be better supported to stay together, or humanely and sensitively cared for when that is not a safe option. Practical insights which can help inform decision making will be shared, with the opportunity to join a discussion session at the end. The free webinar will be presented by: Lisa Harker, Director of Nuffield Family Justice Observatory Professor Karen Broadhurst, Director, Centre for Child and Family Justice Research, Lancaster University Dr Lucy Griffiths, Senior Lecturer, Swansea University With a welcome by Sir James Munby, Chair of Nuffield Family Justice Observatory Please register in advance here to join the webinar.
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New ‘Parents Promise’ Initiative launches | The Transparency Project

New ‘Parents Promise’ Initiative launches | The Transparency Project | Children In Law |
More couples discuss what they would do if they won the lottery than how they would co-parent their children in the event of separation, says the Positive Parenting Alliance – a coalition of over 20 children’s mental health charities, separated parenting groups, relationship charities and other invested stakeholders. Now they have created ‘The Parents Promise’ to better protect children affected by family separation, aimed at reducing the long term emotional and developmental impacts that adversarial separation can have on children. Their aims are long-term : “to promote conversation and a change in the UK culture around divorce and separation.  From one that is often adversarial and family court-based, to one of greater adult communication and child-centricity”. The Alliance say that research has found that almost 9 in 10 couples (87%) have talked about how they would spend a lottery win, but just 5% admit to having discussed potential parenting arrangements in the event of a separation or divorce (Online research conducted by Parent Ping in February 2021. Sample of 2,739 parents). This is set against a backdrop of around 280,000 children being impacted by parental separation each year, both from cohabiting relationships that break down and marriages that end in divorce. The Alliance is asking all UK parents to make The Parents Promise – a commitment made today, whilst a couple is still together, about how they will do what’s best for the long-term wellbeing and mental health of their children, should their relationship break down in the future.  Founder and parent James Hayhurst comments: “The Parents Promise aims to change the conversation about parental separation, both within families and in wider society. It’s based on a simple and important concept that, safeguarding concerns notwithstanding, every child has a right to a positive relationship with both parents and that no child should be asked or forced to choose between their parents. It’s not surprising that most couples have not had a conversation about what would happen should they split up. But, for many, it will happen. The ask is simple: open a dialogue with your partner when you are still in love – not at the point of a relationship breakdown – and make a commitment together to put your child first, whatever happens. In doing so, we hope to drive positive behavioural change whereby thousands of couples and their children, will be protected from the devastating, and often avoidable, impacts of an adversarial split.” According to the Family Solutions Group, 280,000 children experience their parents separating every year, with 1 in 3 of those separations going to court to resolve child arrangements. They want to reduce the numbers of families going to court. Joanne Edwards, Family Lawyer and Mediator at Forsters LLP comments: “It is a common misconception that there is no such thing as a good divorce or separation. In fact, for most couples, court does not need to be the default. Often, the problem is that parents are having discussions right at the point of separation, when emotions are raw and the needs of the children can become lost in parental conflict. This is why a simple tool like the Parents Promise is so powerful.  Having a conversation before the point of break up can act as a helpful reminder later down the line that these two people were, and remain, loving parents first and foremost. Whilst a relationship can be ended, a commitment to be a parent is lifelong.” For more information, to support the initiative and make the Parents Promise today, visit:
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Latest news | Courts and Tribunals Judiciary

Latest news | Courts and Tribunals Judiciary | Children In Law |
The Council has recently held seminars on Adoption and Family in the 21st Century and Experts and the Family Court...
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A (Hague Convention: Wrongful Retention) [2021] EWHC 1204 (Fam)

A (Hague Convention: Wrongful Retention) [2021] EWHC 1204 (Fam) | Children In Law |
The father applied for his six-year-old daughter's summary return from England to Russia under the 1980 Hague Convention, alleging that the mother had wrongly removed or retained her. The mother defended the application, arguing that the father had consented to the daughter's removal from Moldova to England, and that the child had become habitually resident in England and Wales. The court had to determine the date of wrongful removal or wrongful retention, habitual residence, settlement, the Article 13(b) defence of grave risk of harm, and, if relevant, the exercising of the court's discretion whether or not to order return. Also whether, when parties had agreed to the retention of a child abroad for an identifiable period of time, and the left behind parent resiled from the agreement and demanded the return of the child before the expiry of that period, the refusal or failure of the travelling parent to comply with the demand rendered the child's retention wrongful at that time. Poole J found that parts of the father's evidence had been inconsistent, sinister, incoherent, difficult to accept and deliberately misleading. The removal of the daughter from Russia had indeed been in breach of the father's custody rights, but Poole J rejected without hesitation his evidence that there had been an agreement to return her there. There was no wrongful removal when the daughter was brought to England in 2018, and no wrongful retention until January 2019, by which point she was habitually resident in England. Had it arisen, Poole J would have exercised his discretion to refuse to return the child to Russia, and he would have found that the Article 13(b) defence of grave risk of harm or intolerability was established, one reason being that the mother was not a Russian citizen and would have little to no security or stability there upon return. He dismissed the father's application for summary return. Judgment, published: 14/05/2021 Topics Share Twitter Facebook LinkedIn
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International parental child abduction (England and Wales)

International parental child abduction (England and Wales) | Children In Law |
This briefing covers international child abduction, including the criminal law, steps to prevent abduction occurring, and what to do if it does happen.
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Coercive control and children’s welfare in Re H-N and Others

Coercive control and children’s welfare in Re H-N and Others | Children In Law |
Our articles are written by experts in their field and include barristers, solicitors, judges, mediators, academics and professionals from a range of related disciplines. Family Law provides a platform for debate for all the important topics, from divorce and care proceedings to transparency and access to justice. If you would like to contribute please email Spotlight Children and Same Sex Families Children and Same Sex Families: A Legal Handbook More info View All A day in the life Of... Read on Coercive control and children’s welfare in Re H-N and Others Date:7 MAY 2021 When families come to strife, arrangements must be made for the future care of any children. In some circumstances, this means an application to the courts. These ‘private law orders’ can form part of a consent order, as in Re B-B. Others, are made under Sections 8(1)(a)-(b) and 9 of the Children Act 1989 specifying powers, amongst other things, to decide with whom a child is to live and when a child is to have contact. In 2019-2020, around 22,000 such applications were made involving some allegation of domestic abuse by one adult against another (para 3) with instances of domestic abuse rising because of Covid-19 (ONS, 2020). Consequently, the question of how allegations of abuse within family proceedings remains an urgent matter of concern.  However, despite increasing recognition of coercive control as being central to understanding domestic abuse, it remains less well understood in the context of  proceedings related to the future care of children.  As explained by the Harm Panel in its Report: the approach to such allegations is ‘implemented inconsistently’ and is ‘not effective’ in its principal purpose of protecting victims (Harm Panel (2020) 7.1). So, Re H-N [2021] EWCA Civ 448 offered the Court of Appeal the opportunity to provide this ‘general guidance’ on a matter of ‘great importance’ (para 1) - with each case in the combined appeals, outlined below, demonstrating the need for ‘proper understanding’ of domestic abuse and appropriate procedures. Although the case does well to address the inconsistencies in approach by offering an authoritative statement of the law – but does much less to address the ineffectiveness of approach in relation to the complexity and scope of the challenge. So, despite this case posing a valuable opportunity to clarify the law it is regrettable that the Court of Appeal declined to take forward any of the proposed options for reform. In deference to potential legislative reforms in the area, the Court keeps the law in its place – and leaves families in little better position than they were before.  2 Principles Re H-N concerned the question of when fact finding hearings are necessary and appropriate. It did not ‘make new law’ (para 18) with the Court being aware of its institutional limitations (paras 19-21). The Court affirmed that abusive behaviour has an important bearing on future risk of harm (paras 52-54) and articulated the connection between abusive behaviour directed at an adult victim and its direct, indirect, environmental and cultural impacts on children (para 31). Where there is an claim of ‘domestic violence’ which may have an impact on the outcome of a case, the court must decide whether fact finding is necessary and then make findings relating to these claims, to be considered as part of a holistic assessment of the best interests of the child (Re LVMH [2000] 2 FCR 40). The Court must decide whether, on balance, the allegations occurred (para 5) and will treat a finding that the allegations are less likely to have occurred than not as meaning that the allegations did not occur. Further guidance on handling allegations emerged in the form of Practice Direction 12J and in President’s Guidance, ‘The Road Ahead’. However, as Piper and Kaganas argue, the trajectory set by Re LVMH twenty years ago was always liable to create challenges and mistakes in application (Piper and Kaganas, 2010) and has led to well recognised problems for families and judges (Harm Panel (2020)).   Re H-N represents merely a shift in emphasis as compared with Re LVMH [2000] with its focus on ‘patterns of behaviour’ (para 25) taking account both intent and impact in context (paras 27, 32 and Re H-N below). This is significant, as demonstrated in Re T where the judge – despite finding that a serious incident of strangulation had occurred, relied on the father’s claim that he had not intended to cause serious harm in order to downplay the impact of the event on the mother. Likewise, in all of the combined appeals, there are challenges relating to assessing the events as part of  a ‘pattern’ or ‘series of acts’ that must usually be ‘assessed cumulatively’ (para 4 citing, F v M [2021] and statutory guidance). In Re N-H, for example, the judge accepted there to have been an incident where the father slapped the mother but failed to consider this event in its broader context – the fact that she was pregnant at the time and that the violence resulted in a police call-out.  The Court explained that judges should focus on ascertaining, on balance, how the parties behaved towards one another without regard to categories or principles in criminal law (paras 60-74, citing Re R (Children) [2018] EWCA Civ 198). This is sensible and correct: the court is not equipped for making conclusions on criminal matters, nor should it be constrained by the structure of criminal law, which are calibrated in both process and substance for entirely different purposes. Given the unique factual context of family disputes, Cafcass as interveners argued that the ‘safeguarding letter’ is inadequate and that significant, early social-worker input could lead to a more ‘informed and child-centred basis’ for initial decision-making (para 39). This, however, was a matter the Court of Appeal declined to take forward due to its apparent institutional limitations. Yet, the Court could have made a stronger statement in favour of such an approach – which may have yielded significant benefit across all cases. Moreover, the Court observed that deconstructing a ‘pattern’ of events into ‘Scott Schedules’ erects barriers to justice and can miss the broader picture (paras 48-49, see Re T below). This reflects the feminist insight that stresses narrative, context and relationality (Held, 2006), 15–17). Instead, narrative statements could provide a better road-map and means of eliciting information (para 48). This would have been in line with one of the Harm Panel’s proposals for an ‘investigative and problem solving’ approach based on ‘open enquiry’ to better ascertain the facts (Harm Panel, Chapter 11.2 (2020)) instead of this adversarial, bi-polar model. Accepting that the Court must be sensitive to its position. Sometimes, however, it is ‘unnecessary and disproportionate’ to engage in full fact-finding (Re L [2017] EWCA Civ 2121, para 61 and Re H, below) with decisions relating to hearings best made early for the safety and wellbeing of children and victims (Practice Directive 12J, para 17 and s1(2) CA 1989). Synthesising PD12J and the President’s Guidance, the Court thus distilled a number of principles (para 37): To consider the nature and relevance of any allegations, in relation to the decision to make, and terms of, an order. To take account of the purpose of any hearing – which ought to provide a risk assessment that can guide the court’s reasoning regarding the child’s welfare. The courts must consider the ‘relevance’, ‘necessity’ and ‘proportionality’ of any hearing, given the existence of other evidence and in light of the overriding objectives of the Family Procedure Rules 2010 and the President’s Guidance.  Understood as a pattern of behaviour, examination of ‘date specific factual allegations’ may no longer be ‘necessary’ (paras 56-57). The purpose is not to air or resolve allegations of abuse (para 58(a)-(b)) so, once a hearing is determined to be necessary then only those allegations as would be necessary to the order need be examined (para 58(c)). To facilitate this, both parties ought to provide statements outlining their experiences of living with one another (para 58(d)). Use of structured, narrative statements could, if forming part of a nuanced and contextual approach, start to mitigate the limitations of the current process but will form only the starting point for more fundamental reforms in the future.  Article continues below... Family Law Awards 2021 Entries now open! View product Family Law Reports "The unrivalled and authoritative source of... £509.99 View product Financial Remedies Handbook Formerly entitled the Ancillary Relief Handbook... £91.99 View product 3 The four appeals This final section outlines the four specific appeals, providing their principal findings and relating these to the principles and critiques set out above. Re B-B Re B-B considered an appeal against a consent order setting out the time to be spent by the father with their child. The issue was whether the judge was wrong to issue such an order without deciding the facts of serious allegations of abuse, including rape, and whether the judge’s inappropriate comments undermined the mother’s ‘consent’ to the order granted? The Court concluded that the judge’s ‘unguarded comments’ – including that the child could be placed for adoption and that social services would be involved – had ‘long lasting repercussions’ for the mother (para 108) and amounted to such a serious procedural irregularity that the appeal was allowed on this ground. The comments made by the judge were, to a large extent, contextualised and played down by the Court. Although it did ultimately conclude that these had a lasting effect on the fairness of the process as a whole, the seriousness and potentially traumatic nature of the judge’s remarks ought to have yielded greater censure. On the other hand, the Court could have also taken the opportunity to emphasise the impact of resources limitations on the functioning of the process – with chronic, systemic underfunding leading to more and more individual instances such as Re B-B (Harm Panel (2020) 11.1). Re H Re H concerned the case of a couple whose relationship deteriorated into violence and a rape by which H was conceived. Over the course a year, the mother was subjected to further instances of abuse and the relationship came to an end (paras 119-120). The judge initially failed to consider claims of ‘financial and emotional abuse’ as relevant to the child arrangements and decided that the mother had not been raped on the occasions she claimed (para 125). Although the mother did not oppose contact with the father, she sought to challenge the recital to the order which stated that her allegations were unproven. Described as ‘academic’ (para 145), the Court held that even for serious accusations it is not always ‘appropriate or necessary’ to hold a hearing (para 139) and dismissed the appeal (paras 151-154). This case demonstrates both the limitations of the process – restricted as they are to ascertaining necessary facts in relation to making and order and that the process may, at times, not connect with the desires and expectations of families. In this case, the authoritative expressive function of the order – rather than its substantive content – was what caused the mother’s complaint. Legal rules are ‘social forces’ with potentially therapeutic and anti-therapeutic consequences. The underlying principle of this approach is that when law can be used to promote therapeutic consequences and these are in line with legal values there are good reasons to do so (Perlin 2017). Although, given the resource constraints on courts, this approach may be justified, in instances where there is therapeutic value and negligible costs it may be right consider air the facts. Re T This case concerned allegations of rape during the course of a brief, verbally and physically abusive and controlling marriage (paras 156-157).  The judge examined a series of allegations – finding the mother’s evidence at times to be ‘embellished’ and ‘inconsistent’ (para 161) but accepting her claims of physical violence, strangulation and threats. The question was whether the judge had failed to appreciate the significance of the findings she made, putting undue emphasis on the father’s intentions instead of the very serious impact on the mother and the child (para 173-174). The judge failed to ask whether these instances established a pattern of coercion and/or control (para 174). The Court held that the judge erred by not considering her findings ‘as a whole’ nor appreciating their true seriousness (para 178). This is therefore illustrates well the limitations of the law’s focus on proof of individual events when this fails to connect these to the narrative context of the whole story between the parents and children.  Re-iterating that fact-finding must be necessary for the purposes of determining an order and not to pursue ancilliary purposes, the Court focused on the welfare of the child. Ultimately, the Court allowed the appeal and remitting the case to a different judge to determine the necessity of further fact-finding (para 184). Re H-N The final case concerned an allegation of rape against the father. Having lived together in the UK, the father returned to France with the children and the relationship persisted before coming to an end around Christmas, at which point the mother sought the return of H-N and B (a child from a previous relationship). Following the mother’s successful claim under the Hague Convention the father sought permission to remove H-N back to France (para 192). In the course of this application, the mother filed a schedule of allegations of rape and physical, psychological and emotional abuse (para 193). The judge accepted certain ‘minor’ instances of abuse following the father’s limited admissions, but went on to make a series of serious comments downplaying their importance and aired views that litigants might allege abuse in order to obtain professional sympathy and public funding (para 194-198). The Court of Appeal held that the judge failed to sufficiently account for these various allegations. For example, the judge failed to note the seriousness of a slap to the mother’s face, leaving redness and leading to a Police call-out. Nor did he contextualise that claim, failing to observe its relationship to a controlling incident (opening of post) nor the fact that she was pregnant (para 201). The Court went on to list numerous other failings and omissions, concluding that the judge’s reasoning was ‘seriously flawed’ and remitted the case for case management by the Designated Family Judge (para 223). Despite censuring the judge in this instance, the Court of Appeal still underemphasises the severe consequences of the judge’s inappropriate conduct. Conclusions Following Re N-H the law has been authoritatively clarified. The issue of inconsistent application demonstrated by the four appeals and the empirical work of the Harm Committee -  may be mitigated, although until social misconceptions around domestic abuse it is unlikely that the judicial culture will eliminate some of the stereotypical and harmful attitudes demonstrated in these cases. However, the law will not change following this decision and the process for handling fact finding hearings will remain constrained by the existing framework, with its use of schedules and limited resources. ONS, ‘Domestic abuse during the coronavirus (COVID-19) pandemic, England and Wales’ (2020): Family Proceedings Rules 2010: Practice Direction 12J - Child Arrangements & Contact Orders: Domestic Abuse and Harm: Harm Panel, ‘Assessing Risk of Harm to Children and Parents in Private Law Children Cases’ (2020): Home Office, ‘Statutory guidance framework: controlling or coercive behaviour in an intimate or family relationship’ (December 2015): President’s Guidance, ‘The Family Court and COVID-19: The Road Ahead’ (June 2020): Piper and Kagnas, (‘Re L (A Child)’ in Hunter (ed) Feminist Judgements (Hart, 2010) Perlin, ‘'Have You Seen Dignity?': The Story of the Development of Therapeutic Jurisprudence’ (2017) Victoria Legal Aid Society: Herring, Law and the Relational Self (CUP, 2020): Categories: Articles Related Articles 31 JAN 2020 25 NOV 2020 27 APR 2021
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