Children In Law
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Jordan Family Law Awards

Jordan Family Law Awards | Children In Law |
Yes, this is the bit where I shamelessly beg for your vote again.  Yes, I know you voted for me last year and I didn’t win.*
Yes, I know I promised I would cut tuition fees and ended up tripling them.
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Private children: Theory versus reality | Family Law Journal

Private children: Theory versus reality | Family Law Journal | Children In Law |
Matt Foster says that the enforcement of child arrangements orders requires a pragmatic approach outside the legislative framework Many hurdles need to be cleared before the court is able to make an enforcement order and it is likely to take a significant amount of time (and money) to get to that...
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GC v AS [2021] EWHC 14 (Fam)

GC v AS [2021] EWHC 14 (Fam) | Children In Law |
The mother was English, and the father was Libyan, with a British passport. They had three children, aged 3, 5 and 6. The mother had left Libya in 2018 but the children had remained there. She now applied under the inherent jurisdiction for orders that the court should protect the children, invoking "the ancient parens patriae jurisdiction": the Crown's obligation to protect those who are unable to protect themselves. She had not raised this in previous unsuccessful proceedings, relying instead on habitual residence and/or Article 10. Had this been a case about money, Mostyn J said, the failure to advance the parens patriae case first time round would not have been justified and therefore the current case would have stopped for Henderson abuse. However, because this was a case about children, he decided that this should instead be considered as part of the overall discretionary exercise as to whether the jurisdiction should be exercised. He found that the circumstances in this case were not sufficiently compelling to require the court to exercise its protective jurisdiction. The evidence showed that an order for repatriation which sought the assistance of the Libyan authorities would be futile. It did not show there had been a major deterioration in the security situation in Libya since the relocation to Libya, to which the wife had consented, nor since the previous order had been made, such that would justify it being set aside. The mother's application was dismissed. Mostyn J urged the father to allow the mother to have meaningful contact with her children. Judgment, published: 20/01/2021 Topics Share
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Family Law Week: Independent Human Rights Act Review issues call for evidence

Home > News Independent Human Rights Act Review issues call for evidence The Independent Human Rights Act Review has launched a public Call for Evidence. The Call for Evidence closes on the 3 March 2021. The Review is not considering the UK's membership of the Convention; the Review proceeds on the footing that the UK will remain a signatory to the Convention. It is also not considering the substantive rights set out in the Convention. The Call for Evidence comprises two themes. The first deals with the relationship between domestic courts and the European Court of Human Rights. The second considers the impact of the HRA on the relationship between the judiciary, the executive and the legislature. For details of the Review, including its membership and terms of reference, click here. Fornthe Call for Evidence, click here. 17/1/21
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Cafcass updates guidance on advisers seeing children and families during lockdown

Cafcass updates guidance on advisers seeing children and families during lockdown | Children In Law |
Cafcass has published updated guidance on arrangements for Family Court advisers to see children and families, work in Cafcass offices and attend court under lockdown restrictions.
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Full article: Attachment goes to court: child protection and custody issues

Full article: Attachment goes to court: child protection and custody issues | Children In Law |
Attachment theory and research are drawn upon in many applied settings, including family courts, but misunderstandings are widespread and sometimes result in misapplications. The aim of this consen...
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Family Law Week: Education Secretary launches review of children’s social care

Home > News Education Secretary launches review of children’s social care Education Secretary Gavin Williamson has launched an independent review of children's social care which aims 'to raise the bar' for vulnerable children across the country. A commitment to look at the care system was included in the Conservative Party's General Election manifesto. In a speech to children's charities and sector organisations, the Education Secretary has also announced that he has appointed Josh MacAlister to lead the review. A former teacher, Mr MacAlister founded the social work charity Frontline in 2013. He will step down from his role as Chief Executive to lead the review.It is intended that the review will reshape how children interact with the care system, looking at the process from referral through to becoming looked after. It will address major challenges such as the increase in numbers of looked after children, the inconsistencies in children's social care practice, outcomes across the country, and the failure of the system to provide enough stable homes for children. Running throughout the review will be the voices and experiences of children, young people or adults who have been looked-after, or who have received help or support from a social worker. Their experiences will be considered and reflected sensitively and appropriately, with their views included in full in the work. During the virtual launch, Josh MacAlister launched a 'Call for Advice' to help shape the early work of the review and invited applications for an 'Experts by Experience' group to advise him on how to include the voices of people with a 'lived experience' of the children's social care system. The review will consult widely and bring in a broad range of expertise. The Review will address the need for change that supports children to achieve their potential. Children who have been in care comprise 25 per cent of the homeless and 24 per cent of the prison population. Over a third of care leavers (39 per cent) are not in education, employment or training, compared to 13 per cent of all 19-21-year-olds and just 13 per cent progressed to Higher Education by age 19 compared to 43 per cent of all other pupils. In addition, statistics published on 15 January 2021 reveal the number of serious incident notifications between April and September 2020. The data will provide important information to the care review to help address major challenges. The Department for Education will publish terms of reference for the review, setting out the themes and questions that will be addressed and how it will respond to the changing needs of children in care or at risk of going into care, especially given the impact of the pandemic. These will include how to improve accountability for those responsible for children's outcomes, how to ensure children have a positive experience of care, and how to support and strengthen families – helping children stay safely with their families where possible. For the full announcement, click here. 15/1/21
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Rise in the incidence of abusive head trauma during the COVID-19 pandemic | Archives of Disease in Childhood

Rise in the incidence of abusive head trauma during the COVID-19 pandemic | Archives of Disease in Childhood | Children In Law |
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S (Parental Alienation: Cult: Transfer of Primary Care) [2020] EWHC 1940 (Fam)

S (Parental Alienation: Cult: Transfer of Primary Care) [2020] EWHC 1940 (Fam) | Children In Law |
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
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CQC warns of risk of unauthorised deprivation of liberty as DoLS reports drop on back of Covid

CQC warns of risk of unauthorised deprivation of liberty as DoLS reports drop on back of Covid | Children In Law |
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.
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Failure to remove cases and assumption of responsibility

Failure to remove cases and assumption of responsibility | Children In Law |
A court recently refused to strike out claim against social services for failure to remove a child at risk of abuse, even when that child a) was not in custody and b) there was no averment that social services had made matters worse. William Chapman explains why.
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Family Division judge sets out future lessons for non-notification cases after dismissing application by local authority

Family Division judge sets out future lessons for non-notification cases after dismissing application by local authority | Children In Law |
A High Court judge has set out lessons for the future in non-notification cases, after refusing to endorse a local authority’s decision not to disclose the existence of a 10-month-old boy to his father.
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Hague Convention Return Orders and Asylum Applications

Hague Convention Return Orders and Asylum Applications | Children In Law |
Re G (A Child) (Child Abduction)Kim Lehal, a partner in our family law department, recently represented the charity Reunite in the ground-breaking case of Re G...
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Legal Action Group | Thirty-seven and rising: the number of legal aid providers lost since the...

Legal Action Group | Thirty-seven and rising: the number of legal aid providers lost since the... | Children In Law |
The legal aid system was on its knees long before COVID-19 and the fact that it still staggers on is down to the efforts of those who work within it.
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How virtual family group conferences have fared under Covid-19

How virtual family group conferences have fared under Covid-19 | Children In Law |
Remote family group conferences can pose challenges for families and professionals but also deliver benefits.As it appears they are here to stay, we must learn the lessons, say Deanna Edwards, Kate Parkinson and Alex Ryan...
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The School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2021 No. 14

The School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2021 No. 14 | Children In Law |
Statutory Instruments 2021 No. 14 Education, England The School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2021 Made 6th January 2021 Laid before Parliament 8th January 2021 Coming into force 31st January 2021 The Secretary of State for Education, in exercise of the powers conferred by sections 94(5) and (5A), 95(3) and (3A) and 138(7) of the School Standards and Framework Act 1998( 1), makes the following Regulations: Citation and commencement 1.  These Regulations may be cited as the School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2021 and come into force on 31st January 2021. Amendment to the School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020 2.—(1) The School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020( 2) are amended as follows. (2) In each of regulations 2, 3(2) and 5 for “31st January 2021” substitute “30th September 2021”. (3) In regulation 5 for “1st February 2021” substitute “1st October 2021”. Nick Gibb Minister of State Department for Education 6th January 2021 EXPLANATORY NOTE (This note is not part of the Regulations) These Regulations amend the School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020 (“the 2020 Amendment Regulations”). The 2020 Amendment Regulations amended the School Admissions (Appeals Arrangements) (England) Regulations 2012 (“the 2012 Regulations”) for a temporary period. Where it was not reasonably practicable for certain existing constitutional and procedural requirements relating to school admissions appeals to be complied with for a reason related to the incidence or transmission of coronavirus, other more flexible constitutional and procedural requirements were made available. Provision was made for various timelines to apply in respect of appeals to ensure that reasonable timelines could be set during the period of operation of the 2020 Amendment Regulations. Regulation 2 extends the duration of the operation of the 2020 Amendment Regulations, by: amending regulation 2 of the 2020 Amendment Regulations by substituting a new expiry date for appeals lodged so that the 2020 Amendment Regulations apply to appeals lodged on or after 24th April 2020, but on or before 30th September 2021 (in substitution for 31st January 2021); amending regulation 3(2) of the 2020 Amendment Regulations by substituting the expiry date of 31st January 2021 for a new expiry date of 30th September 2021; and amending regulation 5 of the 2020 Amendment Regulations. Subject to regulation 4 of the 2020 Amendment Regulations, the 2012 Regulations will continue to apply as though the amendments made by the 2020 Amendment Regulations had not been made to appeals lodged: (a) on or after 1st October 2021 (in substitution for 1st February 2021); and (b) on or before 30th September 2021 and which have not been decided (in substitution for 31st January 2021). A full regulatory impact assessment has not been prepared as this instrument will have no impact on the costs of business and the voluntary sector. An Explanatory Memorandum is published alongside the Regulations ( 1) 1998 c. 31; section 94(5) and (5A) was substituted by section 50 of the Education Act 2002 (c. 32)and subsection (5A) was amended by section 152 of the Education and Skills Act 2008 (c. 25)and S.I. 2010/1158. Section 95(3) and (3A) was substituted by section 51 of and paragraph 9 of Schedule 4 to the Education Act 2002. Subsection (3A) was amended by S.I. 2010/1158. Section 138(7) was amended by section 175 of and paragraphs 3(1) and (4) of Schedule 17 to the Education and Inspections Act 2006 (c. 40). ( 2) S.I. 2020/446.
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Pippa Knight – Harm Without Awareness | The Transparency Project

Pippa Knight – Harm Without Awareness | The Transparency Project | Children In Law |
This is a guest post from Katie Gollop QC. Katie is a barrister at Serjeants’ Inn Chambers specialising in healthcare related law. She’s also a Deputy High Court Judge allocated to the Family Division and Court of Protection. Alert: this blog about Guy’s and St Thomas’ Children’s NHS Foundation Trust v Pippa Knight [2021] EWHC 25 (Fam) is long because I’ve included lots of quotations from the judgment. The judge expresses himself with such directness that his words are much more useful than any gloss from me. A case summary with quotes forms the second half of the blog. The first half is some thoughts from me. It’s likely that Pippa’s mother will seek a hearing in the Court of Appeal. Any appeal is likely to be considered quickly. [Ed. and we will try an update this post or publish another if that happens]. Thoughts Why Is This Decision Important? Because It Explains Harm Without Awareness. This is the first judgment to provide really clear answers to the issues of principle that were highlighted in Charlie Gard and subsequent cases but which, for many, were not adequately answered: If this child is so badly damaged that they don’t have any awareness and can’t feel any pain, how it is possible to harm the child? How could more, pain free life be more harmful than death? And why can’t the parents have what they want? Poole J provides a clear and accessible explanation (quotes below) of how it is that a person who has no pain and no awareness, can nevertheless suffer burdens and harm as a result of their condition and its treatment. We can expect that part of the judgment to be relied on by healthcare and legal professionals alike on a regular basis. Expert Evidence On Non-Medical Best Interests There were difficulties with the expert evidence supporting Pippa’s mother’s case. One expert (Dr. Wallis) presented theories about the home care proposal in oral evidence only, and so late that others could not respond; he also misunderstood the law. Another (Dr Playfor) had had completely changed his viewpoint since last giving evidence expert evidence in a similar case. But that process of re-thinking left him unable to explain the apparent inconsistency in his opinion that the innate dignity of Pippa’s life meant that it would not be in her best interests to be kept alive on PICU (Intensive Care Unit), but would be in her best interests to be kept alive at home. Medical experts can run into difficulties when they are drawn into giving an opinion on the non-medical aspects of best interests. Given that best interests is an issue for the judge and the judge alone, it is reasonable to ask : should experts even be venturing into that arena? Poole J explained where their evidence could help. He welcomed the views of all of the healthcare professionals, treating and expert, on all matters touching on Pippa’s best interests “because their experience in caring for very ill children gives them considerable insight into how children deal with adversity, how even very disabled children interact with their families, and what a child is like when at the very edge of life.” That said, he gave more weight to their views on medical, rather than non-medical, matters. Poole J has already provided useful guidance about how expert reports on capacity can best assist the Court of Protection (see paragraphs 27-28 of AMDC v AG and CI). To avoid some of the expert evidence difficulties that arose in Pippa’s case, it might help if, at the directions stage, judges gave directions which identified any non-medical matters to be considered by medical experts. Persistent Vegetative State – should this case have come to court? The judge referred to the fact that in law, there are two strands of thought about whether, when the patient is in the persistent vegetative state (PVS), the court can or should balance the benefits and burdens when considering best interests. One strand says that in PVS, there is nothing to balance because treatment can provide no benefit. The other holds that even though treatment may provide no medical benefit, there are other factors that still need to be weighed. In An NHS Trust v Y [2018] UKSC 46, the Supreme Court said that if at the end of a proper medical process (where second opinions are obtained and guidance followed) there is still a difference of medical opinion or lack of agreement from those interested in the patient’s welfare a court application could and should be made. Here, Pippa’s mother did not agree with the Trust’s treatment plan and expert opinion on that plan was divided. The Trust had to make an application. The application was not made on the basis that if the judge found that Pippa was in a PVS (as he did) then she had no interests to be balanced. Instead, all parties asked the judge to look at Pippa’s best interests in their widest sense notwithstanding the diagnosis. Therefore, the judge did not, and was not required to say, which strand of legal thinking he preferred. If Pippa’s mother does appeal, the Court of Appeal is highly unlikely to say anything about whether there is a best interests determination to be made when a child is in PVS, however helpful the healthcare system might find such guidance. Resources All cases other than that concerning Tafida Raqeeb, have been decided on the basis that the issue of whether it is in a child’s best interests to be provided with life-sustaining treatment, is resources blind: the question of who pays is immaterial. The judge hearing Tafida Raqeeb’s case was provided with written evidence from private funders, confirmed in oral evidence by her mother, that private funding for all of her future care needs had been secured. A major part of the family’s case that further ventilation and treatment was in her best interests, was that that treatment would be funded privately and not by the UK taxpayer. When deciding that continued treatment was in her best interests, the judge repeatedly referred to the fact that the treatment was “fully funded”. In contrast, Pippa would be reliant on the NHS. Pippa has been in a London PICU since January 2019 and in the PVS for over a year. It follows that she has been an in-patient on PICU and in the PVS throughout the pandemic. Last year, and again in the last few days, there has been unparalleled pressure on ICU resources (beds, oxygen and staff) with hospitals being close to overwhelmed by patients in dire need. For the first time ever in the NHS, hospitals have had to think about how to prioritise patients for ICU resource allocation because of possible shortages. PICU staff have been transfer to adult ICU to help cope with demand. This context is not mentioned in Poole J’s decision (as one would expect) and yet is hard to avoid for anyone reading his judgment now. Home care would involve a team of between 12 and 15 qualified nurses working in teams of 2 and being present 24/7. The judge said that it would be “difficult to recruit such a team”. He noted that the CCG was aware of Pippa but had not started investigating and had made no funding offer. He said it was a “gap in the evidence” that no-one had made any assessment of whether “her home is suitable to accommodate her, her mother and brother, all the equipment needed, and a team of nurses who would need space and facilities of their own in order to function effectively.” A tracheostomy would be an essential part of any transition home. But the applicant Trust was unwilling to perform a tracheostomy and no other Trust it had approached was willing to do so. The Judge said he had “no reassurance that her envisaged package of home care is practically achievable.” Where does this leave future parents in a similar position to Pippa’s mother? The principle of best interests maybe resources blind, but its implementation is not. There must be evidence that further life-sustaining treatment is deliverable and a deliverable care package requires funding. Where the child is an in-patient and parents want the child to come home, they are in a near impossible position. An NHS funding body like a CCG (or NHS England) is likely to wait for the court’s best interests determination before deciding what it will and won’t fund and where. But without a funding decision, the court will not know if care at home, if medically achievable, is realistic. If, like Tafida Raqeeb’s parents, Pippa’s mother had access to wealthy backers prepared to fund her care, and a consultant at a private hospital willing to perform a tracheostomy, would the outcome for Pippa have been more life, as it was for Tafida? Although Poole J’s reasoning that for Pippa, more life would contain only burdens and no benefit answers the question, perhaps the question does not disappear from the mind entirely. What of the position for hospitals? Tafida was in a minimally conscious state, not PVS and when her case came to court, she had been in ICU for 7 months. Poole J indicated that not only the difference in consciousness but also the different duration of the condition was a material difference. So 7 months leaves room for doubt about whether there is capacity for increased awareness, and 2 years is conclusive. The lawyerly advice to Hospital Trusts is probably to treat for a year before making an application to withdraw treatment for a child with close to undiscernible awareness. But the difficulties for hospitals and their staff in waiting a year should not go unacknowledged. Other patients may have to be turned away. Operations for existing patients may have to be deferred because there the required post-operative ICU bed is lacking. And there may be moral distress for nurses particularly (outside the pandemic let alone in its midst) in caring for a patient who has no conscious awareness to whom they feel they can bring no benefit, when there are many others whom they know they could help. Pippa is testament to the fact that with modern technology and exceptional medical care, children in the PVS can live for a long time. The NHS isn’t capable of funding indefinite treatment of all patients in a minimally conscious state or PVS, judges are not given information about the costs implications for conscious patients of keeping alive those who have minimal consciousness, and yet we assume that if a judge says that continued treatment is in a child’s best interests, it will be funded without limitation. Nothing touches the pain of parents with a child in this situation. But as funders/commissioners do not get involved, NHS treating teams are on their own and caught in the middle. The Trust and its staff bear the psychological, financial and time cost of bringing the application. And individuals are put in the position of having to decide whether, in conscience, they are prepared to provide treatment such as a tracheostomy, which, in itself can cause moral distress. When Covid is done, and there is a re-evaluation of ICU, it is to be hoped that Government will show leadership. Political answers are needed to the equitable and ethical questions that arise in connection with the treatment of patients who, in Poole J’s words, are “at the edge of life”. Should (P)ICU – one of the most costly resources – be rationed for patients who show no improvement? Should the NHS treat patients in the PVS? Should the best interests of patients who have close to no conscious awareness be informed by resources, and if so how? It may be that after Covid, there will be an opportunity for a grown-up national conversation about resources at the edge of life. One thing shines very clearly. Pippa’s mother made a decision to fight for Pippa’s right to a life that is as long as medically possible. That, she believes, is “God’s law”. In love and good conscience, she could not have done otherwise. Her belief that her daughter will improve, and her determination that Pippa should have every chance to do so, is part of the exceptional care she has always provided to her daughter. It was her perfect right to make that decision and Pippa is lucky to have her. Everyone will wish this family strength and peace. PART 2 – CASE SUMMARY About Pippa Pippa is now 5 years old. She was a completely healthy baby but became brain damaged as a result of illness (acute necrotising encephalopathy – ANE) at around age 20 months. She improved and went home for a year and a half but then ANE struck again. She was admitted to the Evelina in January 2019 and remains there at the time of writing. She has a devoted mother (her mother spends 16 hours a day at her bedside), an older brother and a loving extended family. Her father lost a child to meningitis before she was born and, after her first illness, he took his own life. So Pippa’s mother has cared for two bereaved children, one severely disabled, ever since. All the second opinion doctors and experts in the court case agreed about the following. Pippa is in the persistent vegetative state. She has no awareness of herself, anyone or any part of the world around her, and cannot communicate or experience pain, discomfort or pleasure. She cannot breathe at all or swallow; she is doubly incontinent and blind. She is incapable of purposeful movement. She has made no progress since January 2019. There is no prospect of any improvement. Pippa’s mother disagrees. She believes Pippa has made good physical and cognitive progress since arriving at the Evelina and that she improves day by day. She loves Pippa and wants Pippa to be cared for at home, where she can be with family and her toys and things, for as long as it is given to her to live. Her respiratory regime is described at length. She has to be turned, moved into the prone position (this needs 2, sometimes 3 people) and management of secretions (by administering and then removing saline and by suctioning) every day. Even with this care expertly delivered in PICU, she desaturates every few hours. Her life could come to an end at any point, or she could live for some years yet with PICU care. The expert evidence was that any care at home would not be of the same standard and life expectancy at home would be limited to months. Any trial of and transition to home care would take 6 months and would be a complicated, resource intense process. The treating team at the Evelina manages 50 patients ventilated in the community. The team simply could not see that it would be possible to care for Pippa safely at home. And it was not prepared to perform a tracheostomy because it did not think any more treatment for Pippa, in any setting, was in her best interests. The judge concluded that the chances of Pippa being able to be transferred to long term ventilation at home were remote. And that it was not in Pippa’s best interests to have continued life-sustaining treatment and therefore not in her best interests to have a trial of treatment at home. The judge’s findings Harm Without Awareness and Without Pain Pippa’s mother’s barristers argued that: ““by definition there is no physical harm caused by the provision of medical treatment to a person with no conscious awareness.”” The judge had no hesitation in dismissing that argument. He separated pain and harm: “Both her ongoing condition and her necessary treatments in the PICU constitute burdens upon her person notwithstanding her lack of conscious awareness. In any event, the absence of pain is not the same as the absence of harm.” He then explained that there are limits: “The fact that a person has no conscious awareness does not give their clinicians, or anyone else, licence to perform procedures on them irrespective of their benefit.” He noted that we do not deny compensation to victims of negligence because they have no awareness: “Compensation payments for “loss of amenity” have been made to patients who are in a coma because the law recognises that even the fully unconscious individual may experience a loss of function and a diminished quality of life even if they do not suffer pain”. Accordingly, the absence of pain does not mean that that is the end of the welfare assessment. The Royal College of Paediatrics and Child Healthcare publishes guidance, called, “Making decisions to limit treatment in life-limiting and life-threatening conditions in children: a framework for practice.” This guidance sets out the circumstances in which it is ethically permissible to withdraw life sustaining treatment. They include situations where although treatment can prolong life, it can’t lessen the burdens caused by the child’s condition or the treatment necessary to sustain life. If the child’s condition is such that it is difficult or impossible for them to benefit from continued life, withdrawal of treatment can properly be considered. Perhaps with this in mind, the judge found that it was not just that Pippa’s situation caused her a lack of ability to benefit from life, it also burdened her: “It is insufficient to view her condition as depriving her of benefit. Her condition and the treatment it necessitates are significant burdens. Even if one discounted these factors in the welfare assessment, on the grounds that Pippa has no conscious awareness of them, they ought to be taken into account in the broad assessment of her interests. It must be relevant to any assessment of her interests that she has such grave loss of function and requires such intensive and intrusive treatment to preserve her life.” Having found that Pippa’s condition and her treatment for her condition cause her harm, the judge looked at whether even though she has no awareness, the harm should be balanced with other benefits to her. Can there be burdens but no benefits? Some judges, when considering withdrawal of life sustaining treatment from adults, work on the basis that if a person in a minimally conscious state can experience pain then it must follow that they can also experience pleasure, and vice versa. It is unclear whether there is any medical evidence to support that view. Here, the judge asked whether it would be inconsistent to say that a young child with no awareness would suffer burdens but no benefit from more life. He said it would not. That was because the benefits there might be for a young person or adult – such as the affirmation of deeply held values or respect for autonomy – do not apply to a very young child such as Pippa. He could not identify any non-medical benefits for Pippa of prolonging her life on PICU. The Benefits of the Patient’s Life to Others What of the part Pippa plays in family life and the benefit to her of living with those who love her? The judge found that Pippa, as she is now, contributes significantly to the lives of others: “She is an exceptional child who has inspired exceptional behaviour from others: the selfless devotion of her mother, the sacrifices of her brother, the loving support of other family members, the dedication and skill of the PICU doctors, nurses, and therapists. Many people will have learned from Pippa’s life and experiences: doctors, nurses, therapists, and other parents whose children have passed through the PICU at the Evelina.” And he said that the presumption that life should be preserved was uncontroversial. At the same time, that presumption did not determine whether more treatment was in her best interests. Pippa’s best interests, he said, had to be seen from her perspective, not that of the people who love her and want to go on loving her: “Pippa’s condition renders her unaware of the benefits she brings to others. Not only is her welfare my paramount consideration, but it would be wrong, in my judgment, to take into account the welfare of others when determining her best interests.” Dignity The Judge noted that the concept of dignity had influenced one of the experts whose view it was that Pippa should have further life-sustaining treatment. He described dignity as “problematic” and a “subjective and malleable concept”. He said for an older child or adult, dignity might be linked to their exercise of autonomy – that is, the choices they might have made for themselves. But that didn’t apply to a 5 year old because at such a young age the child’s “values, beliefs, and wishes cannot reliably be ascertained or inferred.” The problem with dignity, he said, is that it is such a subjective concept that people can have wildly different ideas of what it means in practice. For example, the hospital thought that a planned withdrawal of ventilation with good palliative care would enable Pippa to die peacefully and with dignity surrounded by her family. In contrast, her mother said: ““I could not think of anything more undignified than Pippa’s death being planned and for it to be carried out in the corner of the PICU when there is a procedure that can be done to potentially get her out of the ward and home.”” Wisely, the judge avoided the trap of defining, let alone implementing, what dignity means in this situation. He said that given the differing views, he would “not presume to adopt some supposedly objective concept of dignity to determine her best interests.” In short, dignity simply did not help answer the best interests question one way or the other. Parental and Family Rights One of the experts supporting Pippa’s mother’s view of best interests said that it was for parents to decide where their child died: ““It is their right to determine the three most important things: when, how and where does death occur.”” That expert’s view (which reads more like a legal submission) got an emphatic thumbs down from the judge. Yes, doctors must consider the family’s wishes and, where possible, work consensually with the family. But it is the cases where working consensually isn’t possible that come to court. In court: “The law is clear: in these cases it is not a parent’s right to determine when, how and where death occurs, or whether life sustaining treatment should be prolonged. Nor do I accept that the court should consider Pippa’s interests through the prism of her mother’s interests: the court is concerned with Pippa’s best interests which must be assessed from her perspective, not from anyone else’s viewpoint.” Again, he returned to the fact that the court is concerned with the child first and foremost: “Dr Playfor, Dr Wallis, and many other people might think that when a child can feel no pain, the courts should seek a solution that gives the most comfort to the child’s family, and that there is a cruelty in depriving them of that comfort and curtailing the life of the child they cherish. But the law seems to me to be clear that the benefits that Pippa has brought, and may continue to bring, to others, and the satisfaction of the wishes of a child’s family, are not the focus of the court’s attention. It is her welfare that is paramount, not the welfare of others, and her best interests that are the court’s concern.”
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Z v D (Art 13 Refusal of Return Order) [2020] EWHC 1857 (Fam)

Z v D (Art 13 Refusal of Return Order) [2020] EWHC 1857 (Fam) | Children In Law |
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
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Disability and visual outcomes following suspected abusive head trauma in children under 2 years | Archives of Disease in Childhood

Disability and visual outcomes following suspected abusive head trauma in children under 2 years | Archives of Disease in Childhood | Children In Law |
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S (A Child) [2020] EWCA Civ 923

S (A Child) [2020] EWCA Civ 923 | Children In Law |
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
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Education Committee holds evidence session on vulnerable children - Committees - UK Parliament

Education Committee holds evidence session on vulnerable children - Committees - UK Parliament | Children In Law |
<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>...
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Religion and fostering

Religion and fostering | Children In Law |
The High Court recently ruled that a Christian foster service must allow gay parents to sign up as carers. Aileen McColgan QC analyses the judgment.
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