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But Belgium says no thanks

But Belgium says no thanks | Children In Law |

  This is decidedly weird.  The High Court were dealing with an application under the Hague Convention for an order to return the child to Belgium.

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Publication of the President’s Public Law Working Group report | Child Protection Resource

Publication of the President’s Public Law Working Group report | Child Protection Resource | Children In Law |
This is a post by Sarah Phillimore On 1st March 2021 the President of the Family Division, Sir Andrew McFarlane, welcomed and endorsed the publication of the President’s Public Law Working Group (PLWG) report. There are four further Best Practice Guidances The application and case management Support for work with families prior to proceedings Section 20/section 76 accommodation Special guardianship orders This group was formed prior to the COVID pandemic to investigate the steep rise in public law cases and make recommendations to improve the system. The President noted that the recommendations had come about ‘organically’ and by agreement which suggests that they are ‘both sound and necessary’. It was his ‘earnest hope and confident expectation’ that the recommendations would therefore but welcomed and put into effect by social workers, lawyers, judges, magistrates and court staff across England and Wales. It is interesting to see the juxtaposition of ‘an earnest hope’ and a ‘confident expectation’. One does not sit easily with the other. It is also interesting to recall that the Norgrove Family Justice Review was only 10 years ago. We found general agreement with our diagnosis: a system that is not a system, characterised by mutual distrust and a lack of leadership, by incoherence and without solid evidence based knowledge about how it really works. The consequence for children is unconscionable delay that has continued to increase since we began our work. The average care case in county courts now takes over 60 weeks and many take much longer – an age in the life of a child. This lead to the Children And Families Act 2014 which endeavoured to speed up care cases by permitting only 26 weeks from application to final order and requiring that experts are appointed only when ‘necessary’. So what has gone wrong? Why only 10 years later do we have another comprehensive review? The problem appears to be twofold; the steep rise in the number of public law cases and the worrying evidence of significant regional variations that led some researchers to conclude, for example when looking at variations in numbers of Special Guardian orders, that “court and local authority cultures are more important than the perceived riskiness of the placement”. The former President said this about excessive workloads in 2018: My view now is that the system, that is each of the professional human beings that I have just listed, is attempting to work at, and often well beyond, capacity. As one designated family judge said to me recently, the workload and the pressure are “remorseless and relentless”. I am genuinely concerned about the long-term wellbeing of all those who are over-working at this high and unsustainable level. Some have predicted that, if the current situation continues, the family justice system will “collapse” or “fall over”, but, as I have said before, I do not think systems collapse in these circumstances. Systems simply grind on; it is people who may “collapse” or “fall over”. Indeed, that is already happening and I could give you real examples of this happening now.  47 core recommendations There are 47 ‘core recommendations’. My vague plans to spend an hour or so going through the report thus withered and died on the vine. This weekend alone I will have to: draft a case summary and order Revise a schedule of allegations Check I have everything I need in the electronic bundle for another hearing deal with the emails that I received during an afternoon remote hearing This is a light weekend. I hope to get all that done in 8 hours. If I was facing a contested hearing next week then I would be looking at closer to 12 hours work. So I gave myself 2 hours to write this. Excuse me if I am bad tempered. I do not know when I will find the time to read through this report with the care it deserves. I comment now on some key issues that jumped out at me. I do not do this in a spirit of cynicism or lack of respect for the hard work that has gone into this endeavour. However I can see immediately three key problems here: Recommendations which sound good – but what do they mean? Recommendations which sound good but which depend on a workforce with time to think about them. Recommendations we have heard before And WHY the use of roman numerals? Seriously why? this is utterly exasperating in a report that recommends less reliance on jargon and clear explanations for parents. Recommendations that sound good – but what do they mean? Para 124 of the Norgove review stated: Children and young people should be given the opportunity to have their voices heard in cases that are about them, where they wish it. Para 23(ii) of the PLWG states “ensure the voice of the child is at the centre of collective thinking”. What does this mean? In cases involving pre verbal babies and toddlers, what am I expected to do to make their ‘voice’ heard, what is ‘collective thinking’ and when is this to take place? xxxix. the promotion nationally of consistency of outcomes – the report recognises that this is going to need some more work. But what does it mean? If every case is fact specific, as the report states, how is this ‘consistency’ to be measured and tracked? Given that the reasons for stark regional variations are not fully understood how will this be promoted? Recommendations that sound good but depend on a workforce with time to think about them xxix. renewed emphasis on effective IRHs xxxvi. a shift in focus on bundles: identifying what is necessary xxxvii. fact-finding hearings: only focus on what is necessary to be determined xxxviii. additional hearings: only where necessary. That word ‘necessary’ is a weasel word. Just like ‘abuse’ or ‘best interests’ it can expand and contract depending on the desires of who is using it at any given time. But one thing I know for sure – in order to make a good argument about what is or is not ‘necessary’ you must have time to know your case, know the issues, know the options. Do we have that time? I do not think we do. And when you do not have time to spend at least a couple of hours carefully analysing your case before each hearing, it is difficult to be ruthless about what the core issues are. The temptation is to chuck everything in and sort it out later, rather than risk not grappling with an issue which may turn out to be pivotal down the line. Recommendations we have heard before xxxii. experts: a reduction in their use and a renewed focus on “necessity” xxxiii. experts: a shift in culture and a renewed focus on social workers and CGs; xxviii. renewed emphasis on judicial continuity When I was starting out I remember writing an article in 2001 which commented on the over-reliance on experts. I mused that this was probably due to the desire of many of us, who lack the time to be confident that we are making sound decisions, to ‘outsource’ that decision making process to someone else – who can then be blamed if it all goes horribly wrong. But its also due to the fact that many parents in care proceedings will suffer horribly from their own child hood trauma, leaving them with unresolved mental health issues that utterly blight their parenting prospects and will continue to blight them, absent some expensive and lengthy therapy which of course will never be provided because no one will pay for it. We will be circling this wagon indefinitely and will confidently assert that in the next round of reviews, reports and best practice guidance we will still be referring to this. Judicial continuity – I am confident that many of the problems which drag the system down could be made much better if only we had judicial continuity. If we were able to bring urgent applications to a Judge who knew the case. If the Judge could work collaboratively with the advocates to move things along, rather than hearing things afresh at each hearing. Apparently there may be some more money being found for more judges but this has been on the wish list constantly since I started out, 20 years ago. There is so much more that needs to be said But I am frankly over whelmed by the sheer weight of all these recommendations and best practice guidances. It is ironic to think that the time I will need to spend reading about what my best practice must be, is time that will not be spent actually practicing better. I hope that this blog post will operate as a spur to me at least, to go back and read with some more thought and care. But I find myself reluctant and resistant for this reason. Any system that requires frequent reviews and recommendations, when the ‘core’ recommendations number 47 and are accompanied by 4 separate ‘best practice’ guidances, is a system which is perhaps distracting itself from the key problems. What many of the children I deal with need is not a pious exhortation that ‘their voice and lived experience’ will be central to our ‘collective thinking’. Rather they need urgent mental health intervention and safe accommodation and they need it NOW. Or they are babies about to be removed from their mothers in hospital and there are no mother and baby placements available, none at all. Or they are the children of parents with learning disabilities and there is no support available to support the parents to care for them. I have made these points many times before in many different environments. Fundamentally I think the problem is this. We don’t live in a society that cares about children, other than as future economic actors. The rise in care proceedings shows this. Because if we really cared about children, wouldn’t we do more to prevent their parents sliding out of view?
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Family Law Week: A (A Child) (1980 Hague Convention: Set Aside) [2021] EWCA Civ 194

Home > Judgments A (A Child) (1980 Hague Convention: Set Aside) [2021] EWCA Civ 194 A father successfully appealed a decision to set aside a return order. ___ The child, A, was born in England and aged 12 at the time of the appeal. A's mother ('M') was a British national and his father ('F') an Italian national. Shortly after A's birth, the family moved from England to Italy where the parents signed a declaration recognising F's paternity. A attended nursery and primary school in Italy and regularly travelled to England to visit his maternal family. In the summer of 2019, M and A travelled to England and M decided she would remain in the country with A. F travelled to England twice to try to resolve the matter and discovered M had enrolled A in an English school. In early 2020, M applied ex-parte for an order preventing F from removing A from the jurisdiction. F then began proceedings under the Hague Convention by signing an application to the Italian Central Authority for A's return. In due course, Ms Deidre Fottrell QC granted the application for summary return. The judge accepted evidence that F had rights of custody for the purpose of Article 3 and found that M's defence under Article 13(a) and (b) was not made out. Under the terms of the order, F travelled to England in October 2020 to collect A. M applied to stay the return order on the basis of a change in circumstances. Mostyn J granted the stay and CAFCASS interviewed A again to establish if his alleged objection was genuine. At a hearing before Mr Leslie Samuels QC in November 2020, the judge refused M's application to join A to the proceedings and to appoint a guardian to represent him.  The judge found, amongst other things, that evidence of A's wishes and feelings amounted to a fundamental change of circumstances. The return order was set aside. In February 2020, the Court of Appeal dismissed M's application for A to be joined as a party to the appeal, largely because his views and interests had been provided to the court fully through the evidence of the CAFCASS officer and the parents' submissions. The court considered FPR rule 12.52A, PD 12F 4.1A and the relevant case law and confirmed   that "the test as to whether there has been a 'fundamental change of circumstances' requires to be set high" [48]. Mr Justice Hayden concluded, "I do not consider that the evidence in this case, as set out above, crossed the high bar, established both in the case law and fortified by the changes to the FPR. Indeed, I regard M's application as a clear example of an attempt to reargue a case which had already been comprehensively determined." [47] Asplin and Moylan LJJ were in agreement and F's appeal was successful. Case summary by Dr Sara Hunton, Barrister, Field Court Chambers For full case summary, please see BAILII
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Protecting Parents from False Allegations of Fabricated or Induced Illness (FII)

Protecting Parents from False Allegations of Fabricated or Induced Illness (FII) | Children In Law |
False allegations of Fabricated or Induced Illness (FII) are on the rise in the SEND community. Parent and Carer Alliance are offering a webinar to help parents know how to protect themselves.
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Final report from Public Law Working Group set up by Family President makes 47 core recommendations

Final report from Public Law Working Group set up by Family President makes 47 core recommendations | Children In Law |
The Public Law Working Group (PLWG) set up by the President of the Family Division, Sir Andrew McFarlane, has this week published its final report, which contains some 47 core recommendations.
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Parental Alienation: What Can an Alienated Parent Do? | Psychology Today UK

Parental Alienation: What Can an Alienated Parent Do? | Psychology Today UK | Children In Law |
One challenge with parental alienation is finding professionals informed enough to provide effective help, especially with regard to dealing with the legal system.
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Deaf parents in care proceedings: Good practice in and out of court | The Transparency Project

Deaf parents in care proceedings: Good practice in and out of court | The Transparency Project | Children In Law |
This is a post by regular contributor, Abigail Bond. Abigail is a barrister at St John’s Chambers, Bristol who specialises in Children Law (mainly care proceedings), and Court of Protection health and welfare matters. She tweets as @AbigailBond1.  Re A & B (Children) (Deaf Parent – Assessment and Practice) [2021] EWFC 10 This case is about two very young children, aged 2 and 1. Neither had ever lived with their parents and both had been placed with foster-carers since birth. The question for the judge who heard the final hearing over 17 days was whether they should be placed in long-term foster-care or placed for adoption. The local authority sought care and placement orders on the basis that it would try to find an adoptive family who would promote direct contact between the children and the mother. The mother accepted that she could not look after the children at the moment but hoped to be able to do so in the future. The father, who had not been to contact sessions for some time and attended only the first day of the final hearing, neither supported nor actively opposed the local authority’s proposals. The judge made care and placement orders at the end of the hearing. She found that the children would be at risk of harm if they were returned to the mother’s care, in part because the mother was vulnerable to forming abusive relationships, as she had done with the father of A and B and the father of her older children. This was compounded by the fact that the mother was evasive about the extent of the father’s violence and its effect on the children, and dismissed the need to engage with the Freedom Programme or similar support. The judge also found that the mother had many gaps in her parenting knowledge, had poor ‘theory of mind’ (by which she meant the ability to empathise and to understand the children’s behaviour as they developed) and failed to recognise that there was anything problematic in her parenting style or that she could benefit from teaching or support. Set against that background, the holistic analysis of the benefits and detriments of long-term fostering and adoption for these children led the judge to conclude that the care plan for adoption was the only realistic option.  This is the sort of issue which is decided in family courts up and down the country on a regular basis. What makes this case stand out, however, is the fact that the mother was profoundly deaf and, as the judge said, there is ‘an unusually limited number of reported cases dealing with deaf parents in public law proceedings.’  The most well-known of these cases is Re C (A Child) [2014] EWCA Civ 128 in which the Court of Appeal emphasised the need for the early instruction of an expert to assist professionals with understanding how best to facilitate communication with the deaf person. That judgment also sets out how the local authority’s failure to follow that advice led to the father being at a disadvantage. The Deputy High Court Judge in Re A & B sets out ‘some lessons that may be learned in relation to the social work practice and procedure with the mother as a deaf person’, which she anticipates might be of wider interest in other similar cases. Those 12 lessons are summarised at para. 142. The most significant are covered below. The legal context underpinning the lessons to be learned comes from the Equality Act 2010: The judge was satisfied that the mother should be treated as a person with a disability due to her deafness. The mother was also to be treated as disabled for the purpose of the Equality Act 2010, section 6 of which provides that a person (P) has a disability if P has ‘a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.’ Section 20 of the Equality Act 2010 requires public authorities to take reasonable steps and to make reasonable adjustments to a provision, criterion or practice to avoid placing a disabled person at a substantial disadvantage. This can include ensuring that necessary information is provided to the disabled person in an accessible format. The duty applies not only to the way the local authority must approach social work practice with a deaf parent but also requires the court to take reasonable steps to ensure that such a parent can participate effectively and fairly in the proceedings.  As far as the proceedings themselves are concerned, the duty on the court is underlined  by guidance in the Equal Treatment Bench Book highlighting the practical ways in which reasonable adjustments should be made. This is a reference book for the Judiciary of England and Wales which aims to increase judicial awareness and understanding of the different circumstances of those who come before courts and tribunals, so as to enable effective communication and participation. In this case, the mother was assisted by lip-speakers (a lip-speaker is a hearing person who has been professionally trained to be easy to lip-read) and an intermediary. The lip-speakers provided by the court were used to tell the mother what was being said in court and what was being asked of her in her oral evidence. The mother was also assisted by a third lip-speaker outside of court. A registered intermediary, who was himself profoundly deaf and whose first language was BSL, was used throughout the hearing. He had provided a report explaining that the mother used some signs to support her communication and recommending the use of special measures. His role was to ensure that the mother understood what was happening so that she could participate effectively in the hearing. Significant breaks were provided throughout the court day to avoid cognitive overload and fatigue throughout this process, which was exacerbated by the fact that the hearing took place entirely remotely. The court was also referred to the Advocate’s Gateway Toolkit 11: Planning to question someone who is deaf. It is consistent with the court’s duty to ensure accessibility of information that the judge prepared a simplified version of the judgment, which was read aloud to the mother at the conclusion of the hearing with the help of the lip-speakers and the intermediary.  The lessons  Professionals working with a deaf parent need to be ‘deaf-aware’. This includes understanding why deaf people cannot always communicate effectively by lip-reading or reading written English, not assuming that nodding means that the deaf person has understood what has been said, and being aware that there may be knowledge gaps due to missed communication over the years. Dr Austen (the clinical psychologist with expertise in working with deaf parents, instructed on behalf of the mother) confirmed that basic deaf awareness, adequate for the role of a care or support worker, could be taught in a day. The local authority had fallen into error at the outset in that the pre-birth assessment was undertaken by a social worker who did not have any expertise in working with deaf parents, who assumed that the fact that the mother could lip-read meant that she could understand everything, and who side-lined the mother’s deafness by failing to even attempt to analyse the effect of it on her parenting. Moreover, the need for deaf awareness training was not prioritised even after Dr Austen had flagged it up: the contact supervisor had never before worked with a deaf parent and had neither received nor been offered any deaf awareness training; neither had the foster-carer, who undertook the handover to the mother at the start of every contact session by giving her an oral update as to how the children had been. Furthermore, the social worker allocated from February 2019 was not provided with the training until November of that year. In every case involving a deaf parent, a cognitive and capacity assessment should be undertaken at the outset of the proceedings by a psychologist with specialist experience in the assessment of deaf adults. This proved to be pivotal in this case. In proceedings concerning some of her older children the mother had been represented by the Official Solicitor following a psychological assessment which had concluded that she lacked the capacity to conduct proceedings. An addendum was obtained for these proceedings from the same psychologist, who found once again that the mother was learning disabled with extremely low cognitive ability and that she lacked litigation capacity. Her legal representatives then sought a specialist assessment by Dr Austen. Dr Austen’s conclusions were markedly different from those of the previous psychologist: in her opinion the mother was capable of conducting the proceedings, did not have extremely low intellectual ability or a learning disability, did not have a severe memory impairment, did not lack a language system, and did not have extremely poor ability to understand spoken language. Dr Austen confirmed that the difference in time between the two reports (about a month) was not explained by the mother having made huge improvements since the original assessment, concluding that the earlier assessment was inaccurate. The Order inviting the Official Solicitor to act on the mother’s behalf was duly discharged. A specialist cognitive assessment is essential in order to understand the way that the parent communicates so that reasonable adjustments can be made by both social workers and the court. Dr Austen explained that the mother was bilaterally deaf but used spoken language to communicate, which she supplemented by lip-reading, aided residual hearing, drawing, writing, role play and gesture. Her lipreading was adequate (although generally lipreading has only has a success rate of about 50%); she had gaps in her knowledge as a result of her deafness and her historic and current social situation; her speech was difficult to understand; she had some mild language delay; and her reading was poor but not significantly below the average of 9 years for deaf adults of ‘normal’ intelligence. She recommended as a consequence that the mother‘s language skills would enable her to give evidence in court with the support of an intermediary, that all significant appointments with the mother should be attended by an intermediary and that whilst an intermediary with lip-speaking skills was preferable, a lip-speaker with deaf experience was better than an intermediary without any deaf experience. A lip-speaker would also be required in court. Even after receiving advice as to how best to facilitate communication with the mother, professionals did not always ensure that she was supported by a lip-speaker. It was clear, however, that a lip-speaker was provided at most LAC Review meetings and at an important meeting with the social worker in November 2019 to discuss the outcome of an assessment by Dr Cornes. The judgment also highlights other elements of poor communication practice: the social worker failing to meet with the parents to discuss the outcome of the local authority Adotion Decision Maker’s decision; failing to meet with them before preparing the final care plans; trying to use the father to communicate with the mother when he required an advocate himself.  A specialist parenting assessment by an expert in deafness is required. In this case it was undertaken by Dr Cornes, a consultant counselling psychologist who was also instructed in Re C (A Child) [2014] EWCA Civ 128 where he was described as having had ‘a lifetime of experience in matters of communication between deaf people’. Reaching similar conclusions to Dr Austen about the way that the mother communicates, he recommended in his report in February 2019 that in order to provide support to help the mother improve her parenting skills, it was important for information to be given to her in an accessible format: interpreted into simple English using a lip-speaker; written in simple English; and provided by workers who have undergone deaf awareness training. He found, however, that the mother had considerable gaps in her parenting knowledge and critical difficulties with Theory of Mind which would interfere in the attachment relationship as the children developed. These could not be remedied within the children’s timescales. She had only a very basic understanding of her children’s developmental, emotional and social needs and a poor understanding of children’s behaviour (she considered defiance as an ‘illness’ to be treated with calpol). Moreover, an analysis of observed contact showed a lack of consistent interaction and ability to meet her children’s needs.  Paragraph 10 of the Social Work Evidence Template (SWET) must be addressed in full rather than simply being treated as a box to be ticked on a prescribed form. This requires the social worker to answer the following question: Have the contents of this statement been communicated to mother, father, significant others and the child in a way which can be clearly understood? If not, what has been tried? As the European Court of Human Rights reminds us in Venema v The Netherlands, it is essential in all care cases that a parent is ‘placed in a position where he or she may obtain access to information which is relied on by the authorities in taking measures of protective care or in taking decisions relevant to the care and custody of a child. Otherwise, the parent will be unable to participate effectively in the decision-making process or put forward in a fair or adequate manner those matters militating in favour of his or her ability to provide the child with proper care and protection.’ Where the parent is disabled, the obligation on the local authority to ensure the parent’s Article 6 rights to a fair trial (by keeping them informed, in a way they understand, about the progress of the case, the expectations upon them, and what they can do to address the concerns) requires proactive steps to be taken. The social worker’s attempt to address Para.10 in this case was considered to be ‘limited.’  Re A & B provides a helpful insight into how a local authority failed, from the pre-proceedings stage, to understand the mother’s needs as a deaf parent. Despite that, the court considered the deficiencies in the local authority’s assessment of the mother to be ameliorated by the thorough specialist parenting assessment undertaken by Dr Cornes.  For another relatively recent but more unusual care case involving a deaf parent, see A Local Authority v X & others [2020] EWFC 36 , where the mother had neither litigation capacity nor the capacity to give evidence in court but was assisted to participate as fully as possible in the proceedings by a bespoke DVD ‘interview’ process devised and undertaken by Dr Austen.  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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Weekly Notes: legal news from ICLR, 1 March 2021 | by The ICLR | Mar, 2021

Weekly Notes: legal news from ICLR, 1 March 2021 | by The ICLR | Mar, 2021 | Children In Law |
The Coronavirus Act 2020 is up for its second six-monthly review and renewal vote in the House of Commons in the coming weeks.Some of the powers it has conferred, the way they have been enforced…...
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M (A Child): Live streaming from the Court of Appeal on Thursday 4th March – Should a journalist be able to see the court documents behind a flawed decision that a child needed adoption? | The Tran...

M (A Child): Live streaming from the Court of Appeal on Thursday 4th March – Should a journalist be able to see the court documents behind a flawed decision that a child needed adoption? | The Tran... | Children In Law |
This is a short blog to introduce the people and issues, and explain the lead up, ahead of the live-streamed appeal in M (A Child) tomorrow. It aims to give non lawyers a bit of orientation and some links when tuning in to the court of appeal proceedings.  The listing details are here. The link to watch via live-stream goes live here tomorrow, Thursday Fourth of March 2021. The appeal hearing starts at 10.30am and is expected to last about 5 hours over the one day.  The Court of Appeal have provided some useful background information for the public at the live streaming page: In an ideal (transparency) world they’d also routinely publish the anonymised legal arguments (skeletons) that the Judges have and the parties will be referring to. It’s hard even for lawyers to follow the complex legal arguments without these, never mind journalists or members of the public.  In an ideal world too the Court of Appeal will give a bit of an introduction and explanation of how it all works at the beginning for the non-legal public tomorrow. But live streaming is itself a new (and welcome) development for family cases in the Court of Appeal.  And the President of the Family Division is in the middle of a review of the whole tricky business of transparency and the family courts right now: Who is Who? The three Justices hearing the appeal are the Master of the Rolls, Lady Justice Macur and Lady Justice King. Lady Justice King has already sat as a court of appeal judge twice in relation to this case. The ‘Master of the Rolls’ – Right Honourable Sir Geofrey Vox is second only to the Lord Chief Justice in seniority and is known to sit on some of the more legally complex cases before the Court of Appeal.  The Appellant is Melanie Newman, freelance journalist with a particular interest in the family courts. She is being represented by Anya Proops, Qeens Counsel (QC), of 11 Kings Bench Walk Chambers. (I’m only referring to the QC’s leading the bigger legal teams because it’s they who will be visibly leading on the day for their clients). Southampton City Council are represented by Heather Rogers QC, of Doughty Street Chambers. The child’s Guardian is represented by Deidre Fottrell QC, of 1 Garden Court Chambers.  What’s being appealed? Mrs Justice Roberts’ (2019) decision that Newman should not have access to the full set of documentary evidence the family court relied on when ordering (in 2017) that a child needed to be adopted, in order that Newman might investigate how that decision (later overturned by the Court of Appeal with the child going back home) came about.  The published judgment with the decision and reasoning being appealed is here: Newman v Southampton City Council & Ors [2020] EWHC 2103 (Fam) (05 August 2020. How did we get here and why might it matter to the mother and the journalist? When setting aside the 2017 decision that the child required adoption (the Placement Order), the Court of Appeal said that the Placement Order had been made on ‘the slimmest of evidence’.  The only reason the child wasn’t adopted, with all ties to her birth family severed against her parent’s wishes, was her mother’s appeal to the Court of Appeal. Legal aid was not available to her and it cost her some £20,000 that she could ill afford. Newman followed the case with other journalists. She was interested in how the decision to recommend adoption was reached by the local authority and endorsed by the court. Including what might be driving an apparent trend in this particular local authority of an unusually high percentage of cases resulting in adoption orders. Confidentiality rules prevent parents sharing the court documents or the substance of what goes on in children’s court cases with journalists and others. Nor can anyone including the media publish them. The rules apply even if the court case is long finished, or a parent is worried about a miscarriage of justice, or publication won’t involve anything that would identify the child or family. Breach of the rules is potentially a contempt of court. The only option is to apply to court for the rules to be relaxed in your particular case to the extent you need them to be to do the thing you want to do.  Newman decided to apply to the family court for permission to have copies of the court documents that the judge had access to when making the Placement Order in 2017 (the court file). She wanted to understand the decision better and decide from there whether or not she then wanted to apply separately for permission to report anything. (Appeals are subject to different rules. The starting point is that they can be reported though a specific reporting restriction order may be made in the particular case as applies here. What is already in a published family court judgment can also be published so long as the anonymity of the family members is strictly maintained. The 2018 Court of Appeal judgment has already been published on an anonymised basis. See links below).  The child’s mother had full legal decision making rights (parental responsibility) for her child who was 7 years old by the time of the application. She wanted the journalist to access the papers to investigate and potentially for lessons to be learnt from her families experience. She consented on behalf of herself and her child.  Her application was heard in the High Court by Mrs Justice Roberts who reviewed the law on the balance between competing confidentiality / privacy etc rights (Article 8 of the Human Rights Act) and freedom of expression (Article 12) rights; weighed them in the particular case; and concluded that a few limited documents such as those relating to the mother rather than the child should be shared with the journalist. Others like the social work assessments and expert reports about the child, and the social work witness statements and medical records should not . Mrs Justice Roberts considered that she wasn’t dealing with an application of a mother for permission to share documents in her possession but of a professional journalist for documents she couldn’t otherwise access since the mother no longer had the documents. The cost and time it would take the local authority to redact and copy the documents and public policy arguments, as well as issues relating to the child’s privacy rights (couched mainly in fairly general terms) all featured in her reasoning. See para 111 onwards of her judgment and a summary of her legal reasoning at the 11KBW blog. What are the legal issues for the Court of Appeal? There are links to at the foot of this blog post on the wider picture and arguments about the right balance between confidentiality and transparency (including public confidence in the family court system) being looked at more generally by the president in his transparency review.  The appeal concerns the same law on the proper balance between competing privacy and freedom of speech rights. Applied specifically to an application by a journalist to see the court file on the particular facts applying, including the consent of a parent on behalf of her young child.  It’s the first time the question of how far journalists should be permitted access to documents placed on the court file in public law family proceedings has really been scrutinized in this way. The Court of Appeal granted permission for the appeal because it raised the following matter of significant public interest: The balance as between Article 8 and Article 10 where a responsible journalist seeks access to court papers; including consideration of the approach of the court to the Article 8 interests of a young child where a person with parental responsibility wishes to consent to full disclosure of all the court papers on behalf of the child, the subject of the proceedings.’ At this point I’d love to suggest readers turn to the published, anonymised legal argument documents lodged with the court by the leading barristers on behalf of the appellant journalist, local authority and child’s Guardian, to really follow this hearing and provide the link. I can’t of course because they are not published and I may not publish them. I have however at the time of writing just received the third of the skeleton arguments on behalf of the parties on the basis of legal rules that permit accredited journalists attending the hearing to request them, but not as yet had the opportunity to absorb these. Further Reading Michael White wrote about the original decision here at the 11 KBW Panopticon Blog. We also saw reports at Local Government Lawyer, the Gazette, and Hold the Front Page. Melanie Newman wrote for the Transparency Project here about her experience of applying and why it mattered. Mrs Justice Roberts published her decision and her subsequent decisions not to allow permission to appeal and on costs here. The anonymised, published judgment from the Court of Appeal decision on the Placement Order is here. A Transparency Project blog about the Court of Appeal decision about the Placement Order with links to media reports of it is here. A Transparency Project blog about journalist Louise Tickle’s earlier appeal in the Court of Appeal against a reporting restriction order in the same family case, which lead to the President issuing guidance on how press applications to relax reporting restrictions should be dealt with is here. Start here for more on the wider transparency review underway. See here for a recent submission to the Law Commission urging legal reform. Feature Pic: RCJ4 image by piqsels
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Re S [2020] EWHC 2940 (Fam)

Re S [2020] EWHC 2940 (Fam) | Children In Law |
The mother contended that her three children, aged 14, 10 and 8, had been wrongfully retained in England. She applied, pursuant to the Hague Convention 1980, for their summary return to Poland and, pursuant to Brussels IIa, for the recognition and enforcement of an order made by the Polish District Court. The father opposed the return. The parents were Polish nationals, and the children had been born in the USA, before moving to Poland. The parents had separated after the father moved to England. During a holiday in England the children had complained of poor treatment by the mother, and the father had not returned them. Mr A. Verdan QC (sitting as a deputy High Court judge) found that the children's habitual residence had remained in Poland, but that the exception under Article 13(b) had been made out, the children being at risk of physical ill-treatment and unacceptable chastisement by the mother. He would not exercise his discretion to return the children to Poland pursuant to the Hague application. Considering the second application, he noted that he had not been made aware of any authority suggesting that the court, having refused a return via the Hague Convention, should at the same hearing enforce a return via Brussels IIa, and he declined to do so. He encouraged the parties to engage in mediation. Judgment, published: 03/03/2021 Topics Share
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Family Law Week: Family Law Week Weekly Podcast Season 5, Episode 2

Family Law Week: Family Law Week Weekly Podcast Season 5, Episode 2 | Children In Law |
Home > General Podcasts Family Law Week Weekly Podcast Season 5, Episode 2 Rachel Cooper is joined by James Stewart, Partner, Arbitrator & Co-Head of Private Wealth at Penningtons Manches Cooper. Rachel Cooper is joined by James Stewart, Partner, Arbitrator & Co-Head of Private Wealth at Penningtons Manches Cooper. James Stewart is known for his top-level work on international financial matters. He is a fellow of the International Academy of Family Lawyers and is on the Consultation Board of Practical Law.He is a recognised expert in the field of Anglo-Russian family law, is the general editor of 'Family Law Jurisdictional Comparisons' (third edition, 2015) and 'Practical Law Company's Multi-Jurisdictional Guide to Family Law'. He has authored the Russian and Ukrainian chapters of International Pre-nuptial and Post-nuptial Agreements. James is a qualified solicitor in Northern Ireland and a visiting Professor of Law at Ulster University. James and Rachel discuss some of the most interesting cases of James' career, including Clibbery v Allen [2002] EWCA Civ 45, Re AI and MT [2013] EWHC 100 (Fam) and AG v VD [2021] EWFC 9. They also discuss his life and his career as a family lawyer more generally. The case of Clibbery v Allen considered the balance between achieving confidentiality / privacy and open justice in family proceedings. The case of AI v MT considered the relationship between the civil and the religious courts in family proceedings. The recent case of AG v VD was a Part III case under the MFPA 1984 where the wife received a needs based award and where Cohen J made some timely comments about parties adhering to the requirements of PD 27A Click here to listen to the podcast The podcast can be downloaded via Libsyn Also available on Stitcher
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Family Law Week: Dame Rachel de Souza begins her term as Children’s Commissioner for England

Home > News Dame Rachel de Souza begins her term as Children’s Commissioner for England Dame Rachel de Souza has begun her term as Children's Commissioner for England in succession to Anne Longfield. In a blog piece on the Children's Commissioner's website, she says: "When I hand over in six years' time, I want to look back at six years in which adults in power in this country have done even more for children than the post-war generation. I want to see not just a golden age of policy-making, but a golden age of delivery. That is how I saw my role in schools and that is how I see my role now: to deliver. "We know the challenges – the human cost of the pandemic; the bereavement; rising rates of domestic abuse; vulnerable children; estrangement; children in care or specialist units; children with SEND; a mental health epidemic; social inequality; regional inequality; rising unemployment; economic restructuring. recession; the conflicts between more austerity and a reduction in public services, and more debt which could be passed on to our children; access to further education; access to opportunity. The list is long, and in every particular, children's futures are on the line. "The question I intend to put before the adults of 2021 is: what are we going to do about these things? I have a lot to learn myself, so in the early months of my tenure, I will be listening to the whole sector on all these points. In particular, I want to hear previously unheard voices, from minority or vulnerable groups of course, but also from the child whose identity may fall between definitions which might confer a particular need or disadvantage. During my tenure, I want my work to improve the chances of every single child, whatever their early standing in life, wherever they are, from the inner city to the most remote corner of every county in England." For the full article, click here. 7/3/21
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BB (Care Proceedings) (Mid-Trial Dismissal and Withdrawal of Allegations) [2021] EWFC 20 (03 March 2021)

BB (Care Proceedings) (Mid-Trial Dismissal and Withdrawal of Allegations) [2021] EWFC 20 (03 March 2021) | Children In Law |
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High Court rejects application by mother to prevent local authority from imposing vaccinations on child in foster care

High Court rejects application by mother to prevent local authority from imposing vaccinations on child in foster care | Children In Law |
A High Court judge has rejected a mother's application, supported by the father, to prevent a local authority from imposing a programme of vaccinations on a child in foster care without their consent.
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Judge rules council breached ECHR rights of orthodox Jewish 15-year-old boy - but not his brother - over proposal for respite placement accommodation

Judge rules council breached ECHR rights of orthodox Jewish 15-year-old boy - but not his brother - over proposal for respite placement accommodation | Children In Law |
A High Court judge has handed down a ruling in a disagreement over whether two boys should be given respite placement accommodation in a residential home in the Greater Manchester area or in an exclusively orthodox Jewish residential home in London.
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The President of the Family Division endorses Public Law Working Group report

The President of the Family Division endorses Public Law Working Group report | 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 The President of the Family Division endorses Public Law Working Group report Date:3 MAR 2021 The Courts and Tribunals Judiciary has published a message from the President of the Family Division, Sir Andrew McFarlane, in which the President endorses the publication of the President’s Public Law Working Group report.  Article continues below... Family Law "the principal (monthly) periodical dealing with... £389 View product Family Court Practice, The Order the 2021 edition due out in May £629.99 View product Jackson's Matrimonial Finance Tenth Edition Jackson's Matrimonial Finance is an authoritative... £289.99 View product The report sets out the recommendations from the Public Law Working Group on how to improve the Family Court’s ability to address the needs of children and families at the centre of public law cases, following the steep rise in public law cases prior to the COVID-19 pandemic. The report is even more timely in light of the coronavirus pandemic placing additional pressures on the Child Protection and Family Justice systems, demonstrating the need for reform. Categories: News Related Articles 15 SEP 2020 Authors: Sarah Williams 28 JAN 2021 26 FEB 2021
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Care review launches with focus on ensuring love, stability and safety for children in families and in care

Care review launches with focus on ensuring love, stability and safety for children in families and in care | Children In Law |
The care review will focus on ensuring love, stability and safety for children, whether in their families or in care, chair Josh MacAlister has said as it started work yesterday.
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Fabricated illness in children ‘much more common’ than previously thought | Evening Standard

Fabricated illness in children ‘much more common’ than previously thought | Evening Standard | Children In Law |
Fabricated illness in children is "more common" than people believe, experts have said.
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Bid to banish 'oppressive' language in social work

Bid to banish 'oppressive' language in social work | Children In Law |
Published by Professional Social Work magazine, 3 March, 2021 A campaign to interrogate the language of social work has been launched by activists who claim it's too often “oppressive, alienating and damaging”. The drive by the Social Work Action Group (SWAG) aims to stimulatle debate and look at the impact language used by professionals has on people coming into contact with services through sharing testimonials on social media. Jason Barnes, founder of SWAG - a network of social workers, people with lived experience, academics and students - said: “We believe language is so fundamental to building those trusting relationships for the people we work with and there are changes necessary within that. “I know myself from being in social work for eight years so much jargon can run off my tongue and it is really important we take stock of what we are saying, how we are carrying out our work and the impact that can have on families and others.” Chris Wild, a campaigner for young people in care, said his own experiences in the care system highlighted the need for change. “I always felt worthless when I was in a professional environment and I was referred to as a ‘looked after child’. It’s archaic. The care sector hasn’t changed but the world around it has and we have got to modernise the way we use our language. “There’s that division automatically between authorities and young people. We have got to try and close that gap somehow and unite as a collaborative and give young people the respect they deserve and we’ll get it back. “Language is the way forward - to change the care sector for the future we’ve got to change the language and that will help everything else around it.” SWAG was created in 2016 with a mission to bring change in social work culture, education and practice and reform services through “co-produced actions and campaigns”. In a statement launching the Language in Social Work campaign on 1 March, it said: “The ways in which social workers speak to and engage with parents and families can be supportive and beneficial but too often it is experienced as oppressive, alienating and damaging. “Social work systems can perpetuate hurt and injustice through language which is judgemental, heteronormative and rigid.” SWAG's poverty representative Richard Smith stressed language could be as oppressive as poverty in the way it is experienced by individuals. “Our collective aim is to bridge the gap between social workers and those who have experience of social work intervention," he said. “Part of the reason this exists in the first place is that we don’t talk enough about the most common experience held by people that have a social worker - that is the experience of poverty. “Challenging structural injustices should be a core part of our role. We need to make sure we are doing so in a way that is with and not for. Our language in social work campaign is within that spirit of unity. There are types of language that subjugate and types of language that liberate.” A series of videos from parents, people with lived experience, social workers, academics and students will be posted on social media as part of the campaign. #fortherecord @swactionuk
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