Musings of an English family lawyer.

The Court of Appeal had decided that the daughter must be distanced entirely from a cult with which the mother was involved. The mother had said she would renounce the cult, speak to a therapist and consult a dietician in respect of the child, but the Court of Appeal had found that her undertakings wholly failed to acknowledge the change in approach required were she to maintain care of the child. The case had been remitted to the Family Division for further consideration. At this hearing, Williams J found that the mother's witness statement did not paint a persuasive picture of a significant change in attitude. There was almost no engagement with the harm caused to the child, the process leading to that harm, or the damaging nature of the beliefs and practices of the cult. Were the child to remain in the mother's care, the process of estrangement would continue and the child's relationship with the father would be terminated. The child would live with her father and spend such time with her mother as the father might agree in consultation with the independent social worker involved in the case. Judgment, published: 20/07/2020 Topics Share

There may be increasing risks of deprivation of liberty in care settings without due authorisation, the Care Quality commission has warned, after notifications from providers about cases dropped sharply in the first weeks of the pandemic.

This article aims to provide a route map for common disclosure issues that arise in family proceedings concerning children....

Musings of an English family lawyer.

Both parents and the daughter were Brazilian nationals. The mother applied under the Child Abduction and Custody Act 1985 for a summary return order pursuant to the provisions of the 1980 Hague Convention. The child had been habitually resident in Brazil and had been wrongfully retained in England following a holiday. The father resisted the application on Article 13(b) grounds, and on the ground that the child objected to returning for the purposes of Article 13. The maternal grandparents and a maternal aunt had alleged violent conduct towards the child on the part of the mother, and this had been confirmed by the child in conversation with the the Cafcass Officer. MacDonald J was satisfied that there was a grave risk that returning the daughter to Brazil would expose her to harm or an intolerable situation for the purposes of Article 13(b). It was clear that the daughter had settled well in England and was having her physical and emotional needs met here. He declined to make a summary return order and dismissed the mother's application. He emphasised that his decision was reached upon the very unusual facts of this case, i.e. that the holiday had provided the opportunity for the child to alert her other parent and the authorities to the risks she faced in Brazil. This was not a paradigm case of wrongful retention following a holiday. Judgment, published: 21/07/2020 Topics Share

The son had been born in Poland and brought to England by the mother. She now appealed from a return order made under the 1980 Hague Convention. Moylan LJ's view was that the deputy High Court judge hearing the case had not engaged sufficiently with the factors required to determine the issue of habitual residence, and it was unclear whether he had considered where the son was habitually resident at any date other than one particular month. His analysis had an undue focus on the mother's intentions and the question of whether she had formed an intention to stay permanently in England. Peter Jackson LJ and Newey LJ agreed. The father's application under the 1980 Convention would have to be reheard, unless the parents could come to an agreement. Judgment, published: 20/07/2020 Topics Share

<p>The Education Select Committee is holding an evidence session to consider the effects of the Covid-19 outbreak on children in social care, looked-after children, and those with safeguarding and welfare needs.</p>...

Musings of an English family lawyer.

Welcome to this month’s Roundup, where we correct, clarify and comment on media reports of family court cases, explain and comment on published family court judgments and highlight other transparency news MEDIA COVERAGE OF FAMILY COURT MATTERS The Express – IPSO upheld our complaint about an inaccurate article in the Daily Express, (entitled ‘All I did was tell the truth…then court threw me in jail‘) and required the Express to publish a correction. See 296 days to correct a factual inaccuracy – effective press regulation? explaining the long saga of this complaint and highlighting our direct experience of the limitation of the regulatory scheme: The Daily Mail – Inaccurately claimed in a salacious headline (now updated) that Haringey Council sent a child to live with a paedophile, in response to a published judgment that exposed safeguarding failures in the disabled children’s team short of that. Lucy Reed explained the case, the Mail’s inaccuracy and Hayden J’s subsequent decision to name the council in Journalists persuade Judge to change his mind and name criticised local authority about naming the council: Transparency Positive Tortoise – We’re normally careful to select from outside of the Transparency Project team but on this occasion we’ve given way to acknowledging Louise Tickle’s in depth, balanced, nuanced, long read on how Covid measures are affecting children (and their families). As facilitated by the slow news, long read model at Tortoise Media: BBC News and the Guardian– Clive Coleman and Owen Bowcott explained a judicial review challenge to complex legal aid financial rules preventing some victims of domestic abuse getting legal aid for family court cases to protect themselves even when in receipt of universal credit. See here and here: BBC Yorkshire – Reported Hayden J’s decision in the Court of Protection to permit Sheffield Teaching Hospitals NHS Foundation Trust to stop treating an 8 week old baby in favour of palliative care, against his parents wishes, including the positive working relationship between the trust and the parents notwithstanding their disagreement. See also Hayden J’s judgment published subsequently, and his observations about deciding such cases remotely for the first time: These decisions are difficult enough in ordinary times. But a hearing via a video-conferencing platform creates its own particular challenges. The mother and father, who join the video hearing via their mobile telephone, have not always been in my constant view as I would have preferred them to be. I regret that it has not been possible for there to be proper eye contact between us. There are however, some advantages too. It was a great privilege to have been able to go to Z’s bed (remotely) with such little intrusion for him or to those caring for him. I should like to thank the parents for inviting me to see him. NEWLY PUBLISHED CASES Lancashire County Council v M & Ors (COVID-19 Adjournment Application) (Rev 1) [2020] EWFC 43 (12 June 2020) – Julie Doughty highlighted the judgment from MacDonald J that pulled together key guidance to date in one place on the proper judicial exercise of discretion in choosing between a remote hearing, hybrid hearing or adjourned hearing in the context of Covid. See here: GC v A County Counci & Ors [2020] EWCA Civ 848 (03 July 2020)  – Laura Vickers explained the law and facts behind a Court of Appeal decision that a council should not have been given judicial permission to withdraw care proceedings without a full fact finding determination. See Who Decides Who Decides? Withdrawal of Care Proceedings: N (A Child) [2019] EWCA Civ 1997 (19 November 2019) and S (Vulnerable Parent: Intermediary) [2020] EWCA Civ 763 (16 June 2020) – Jack Harrison highlighted two recent Court of Appeal decisions on the right approach to supporting vulnerable parties to family court proceedings. See The Family Court and Vulnerable People. Villiers v Villiers [2020] UKSC 30 (1 July 2020)  – Polly Morgan explained why the Supreme Court decided that the English courts had jurisdiction to decide a wife’s s27 maintenance claim, and an obligation to hear it. See A triad of judgments from the Supreme Court: H (A Child Parental Responsibility : Vaccination) [2020] EWCA Civ 664 (22 May 2020) – Katie Gollop explained this Court of Appeal decision clarifying how council’s should manage vaccinations for children in care where parents object. See Vaccination – No ‘biggie’ but still ‘a big deal: A (A Child) (Rev 1) [2020] EWCA Civ 731 (15 June 2020)  – Laura Vickers explained the legal reasoning behind the Court of Appeal’s decision to refuse the Home Secretary’s appeal against the President’s decision to make a Female Genital Protection Order, notwithstanding a Home Office decision to refuse an asylum application on grounds of risk of FGM. As reported in the Guardian here and here: Hull University Teaching Hospitals NHS Trust v KD [2020] EWCOP 35 (02 July 2020) – Hayden J, Vice President of the Court of Protection, emphasised that all judgments involving the treatment of incapacitated individuals against their expressed wishes should be published for proper public scrutiny, not to mention the advantages of making a wider body of knowledge available to treating clinicians as to the type of case that should be brought to court: C (inflicted injuries – no public law orders) [2020] EWFC – We highlighted HHJ Vincent’s decision to publish her family court judgment showing how young children successfully returned home notwithstanding removal and a fracture found to be inflicted. With a descriptive header and her original fact finding judgment appended for fuller understanding: Ameyaw v McGoldrick & Ors [2020] EWHC 1741 (QB) (02 July 2020) and EWHC 1787 (QB) (06 July 2020)  – Paul Magrath highlighted a pair of (non- family court) decisions not to let a Mckenzie Friend speak for a litigant nor to find bias requiring recusal. See Right of audience denied: McKenzie Friend not allowed to speak for litigant who was ‘well able to speak on her own behalf’. Z (A Child : DOLS: Lack of Secure Placement) [2020] EWHC 1827 (Fam) (10 July 2020)  – Mrs Justice Judd flagged severe, chronic shortages of secure accommodation for vulnerable children leading to use of unregulated placements, in this published judgment of her decision to authorise a deprivation of liberty under the inherent jurisdiction: IN OTHER TRANSPARENCY NEWS A remote private FDR – An anonymus contributor flagged the potential benefits of private remote FDR’s and offered insight into how they work. See A Remote Private FDR: The ‘Spotlight Review’ Panel – Reported to the government on how the family courts treat domestic abuse and victims of it. We’ve published two guest post responses so far on the blog and aim to comment further. See Spotlight domestic abuse review – big changes ahead for Family Court; Spotlight Review: Breaking the Cycle of Failure for LIPs? by Jess Mant, and Another view on the government ‘spotlight review’ report – on how the family courts treat domestic abuse by Ursula Rice: The Legal Blogging Pilot – The pilot (that enables duly qualified legal bloggers to attend otherwise private family court hearings on a par with accredited journalists, though not to report anything of substance without judicial permission) has been extended to 31December 2020. Alice Twaite again tested barriers to attendance at remote hearings under the pilot, including hearings at short notice. See Legal blogging a remote family court hearing on the HMCTS platform of choice (CVP): Something of a collaboration in the end – on barriers and why substantial progress is being made in opening up the Court of Protection by comparison to the family courts. See also Version 5 of the Remote Family Court, suggestive that courts should be aiming to offer systems capable of facilitating short notice access to remote hearings despite the pressure they are under. So long as the urgent nature of the media enquiry is spelt out in the email header. It also provides a general telephone number for assistance where needed. We hope to test these systems out again in the future under the pilot): The Open Justice Court of Protection Project – See Hunger Striking for his Identity: Autonomy, Capacity, and Justice, for just one example of the pioneering work of Celia Kitzinger and Gill Loomes at the newly formed Open Justice Court of Protection Project. Bringing ‘routine’ (complex and life changing) decisions in the Court of Protection to the public for scrutiny and education – with compassion, insight and enquiry. And enabling the public (including trainees, academics and professionals) to access remote hearings to report back and to learn. (Hayden J later published the judgment behind his decision, prompting reports in a few local online outlets via Press Association copy. See also Guardian and BBC News reports prior to proceedings): Seen something to go in the next Roundup or that you’d like us to write about? Send it to info@transparencyproject.org.uk 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. You can find our page, and further information here.  Thanks for reading!