Home > Judgments Re W and Re Z (EU Settled Status for Looked After Children) [2021] EWHC 783 This case examines in general the ambit of section 33 of the Children Act 1989 and in particular how local authorities should approach applications for immigration status for those children in their care. Some children will be subject to care orders which confers parental responsibility upon the local authority. Section 33 permits the local authority to restrict the exercise of parental responsibility by others such as parents, when it is necessary for the child’s welfare. ___ The court examined 3 separate applications made by local authorities under the inherent jurisdiction of the High Court to determine how application should be made to regulate a child's immigration status under the United Kingdom's European Union Settlement Scheme (EUSS)  Given the UK's withdrawal from the European Union, the right to 'freedom of movement' within the EU came to an end, and children who were nationals of another EU country living in the UK would find their right to remain in jeopardy without an application. The court concluded that there is only a small category of cases where the local authority need to get the court's permission to 'over rule' parents,, rather than simply relying on the statute and that applying to regulate a child's immigration status, or applying for an identity document in order to make that application, for did not fall within the category. The court examined the following issues: 1. Where parents of an EU National child subject to a care order either oppose an application for their child for immigration status under the EUSS (or the application for a passport or national identity document that would allow this application to be made) or can't be found to give their agreement, can the local authority proceed to make the application relying on section 33 (3) of the Children Act OR does it need the court's permission? 2. If the EU national child requires a passport or other identity documents from the relevant EU Member State, and requires a court order if the parents can't be found or don't agree, does this court have the power to make an order and if so what is it? The court determined that the local authority could proceed to make applications for a child's settled status without requiring the court's approval. If an order was required in order to get a copy of identification documents from the relevant EU Member State in order to make the application, the court did have the power to make an order under the inherent jurisdiction but the local authority should first check with the EUSS what documents were required as it may be possible to proceed without a passport. The Secretary of State for The Home Department, as intervenor, reassured the court that caseworkers at the EUSS will be looking for reasons to grant applications, not refuse and should exercise discretion in favour of applicants to minimise administrative burdens. The issue of securing a child's immigration status was important, given the estimated 3,300 looked after children and care leavers who were eligible to apply to the EUSS. Those subject to a care order or placement order numbered 2,080 and so far 1,520 applications had been made. The deadline for the applications is 30th June 2021 so it was necessary that all local authorities understood and discharged their duties towards children who are eligible to apply, although there was a discretion for late applications to be made. With regard to children not subject to care and placement orders, guidance was issued by the Home Office in April 2020 highlighting that local authorities must in all circumstances seek the best possible outcomes for the looked after child and should address immigration issues as soon as possible and take legal advice as appropriate. If the local authority did not share PR for a child, this may mean an application to the court was necessary. The court examined also the broader issue of what categories of decision were so serious that it would not be appropriate to allow the local authority to rely on section 33 of the Children Act 1989. A small open category of cases remain where it is appropriate for issues involving exercise of parental responsibility to come before the court but it was emphasised that this is only justified where: … the consequences of the exercise of a particular act of parental responsibility are so profound or enduring and have such an impact on either the child him or herself, and/or on the Art 8 rights of those other parties who share parental responsibility with a local authority, that it would be wrong for a local authority to use its power …' Three Court of Appeal decisions were considered as guidance. In Re C (Children) [2016] EWCA Civ 374, a local authority could not use section 33 to stop a parent registering a child with a particular name; this issue should come to court. In Re H (A Child)(Parental Responsibility: Vaccination) [2020] EWCA Civ 664 routine vaccination under the United Kingdom public health programme, in circumstances where there was no contra-indication in relation to the child in question and the link between the MMR vaccine and autism had been definitively disproved, could not be regarded as decision of such magnitude that it would be wrong for a local authority to use its power under s. 33(3)(b) to override the wishes or views of a parent in Re Y (Children in Care: Change of Nationality) [2020] EWCA Civ 1038, in circumstances where changing a child's citizenship is a momentous step with profound and enduring consequences that requires the most careful consideration, it would not appropriate for the local authority to proceed under s.33(3) of the Children Act 1989 in the face of parental opposition and where that course may lead to a loss of their existing citizenship The Court noted the observation of King LJ at para 99 of Re H (A Child)(Parental Responsibility: Vaccination) that section 33 of the Children Act 1989 is not an invitation to local authorities 'to ride roughshod over the wishes of parents whose children are in care.' It was suggested that parents could make their own application to invoke the inherent jurisdiction if the local authority wished to vaccinate against their wishes. However, as was noted in In Re Y (Children in Care: Change of Nationality), it is often not a realistic remedy to expect parents to take legal action, particularly if their immigration status is insecure. The court found that Parliament intended a local authority which has been granted parental responsibility in respect of a child by operation of law:   to be able, following a rigorous procedural and legal process undertaken before a court prior to the granting of such orders and if necessary to safeguard and promote the child's welfare, to limit the power of a parent to make major decisions regarding a child's life and instead to take those decisions in place of the parent by exercising its parental responsibility for the child. There are statutory limitations in s 33(6) and (7) that the local authority cannot cause the child to be brought up in a different religion, change the child's surname or remove him from the jurisdiction. However, subject to these restrictions and the requirement that exercise of parental responsibility must be 'necessary' to promote the child's welfare, the power conferred by s.33(3) on a local authority is not otherwise circumscribed. The court was clear that an application to EUSS or for a passport did not invoke consequences so profound that the court's approval was needed. The court considered in particular that the application for passport was simply to provide evidence of a child's identity and nationality, and a grant of immigration status under the EUSS will not prevent the child from returning to their country of origin or, if he or she wishes to, from relinquishing their immigration status in the UK on reaching their majority. Case summary by Sarah Phillimore, Barrister, St John's Chambers For full case summary, please see BAILII

This is a post by Emily Ward. Emily is a barrister based at Broadway House Chambers and is Deputy Head of the Family Team. She practises in all areas of family law, and has a particular interest in matrimonial finance and complex children cases. Emily tweets as @e_v_ward Background  This case is about a little boy, J, who was approaching three years of age at the time the decision was made. His mother was 19 when J was born and she was living with J’s father. The local authority issued care proceedings in relation to J in August 2018. The proceedings began as J suffered a number of injuries whilst he was in the care of his mother and a Mr K. At a hearing before His Honour Judge Jack (‘the Judge’) findings were made that the mother had suffered serious abuse at the hands of J’s father.  The hearing before the Judge was supposed to be the final hearing in the case, where final decisions were made for J. However, the local authority changed their proposed plan for J’s future care. The initial plan was a plan of adoption, but the proposed plan was changed to a plan for J to be rehabilitated back to the care of his mother, and her then partner, Mr M.  The rehabilitation plan did not last very long, as only a few days after the start of this placement a violent incident occurred between J’s mother and Mr M. J was present. The police were called and J was returned to his previous foster care placement. At the time of the hearing before the Court of Appeal, which this write up concerns, J remained in foster care. The violent incident described above resulted in J’s care plan reverting back to a plan of adoption.  Hearing: 18 February 2021 The Judge dealt with a hearing on 18 February 2021. A number of applications (which need not be set out here) were made. They were refused by the Judge. None of these decisions were appealed.  At this hearing, the Judge listed a final hearing which was estimated to last for ten days. Some court time was identified in April before a Deputy Circuit Judge, and some time was also identified in June in front of the Judge. The local authority and the other parties wanted the hearing to take place on the earlier dates; J’s mother wanted the hearing to take place on the later dates. Importantly, J’s mother is pregnant and her expected due date is 5 May 2021. After receiving an email which contained details of the parties’ preferences, the Judge decided that the case would be listed in April.  Adjournment application  The local authority then made an application for directions and J’s mother made an application seeking an adjournment of the final hearing.  J’s mother set out her arguments in a written document, which is sometimes called a ‘skeleton argument’ or ‘position statement’. She was concerned that her first birth (J’s birth) was not without difficulty; she had to be induced due to J stopping growing. J’s mother also raised that she would be heavily pregnant at the time of the final hearing, she would be unable to take an active part in the hearing and that a fair hearing could not take place.  In the same document, the Judge’s attention was brought to the Equal Treatment Bench Book (more on this later), within which there is a section about pregnancy, maternity leave and breastfeeding.  The local authority, J’s father and J’s guardian opposed the application for the final hearing to be adjourned.  The local authority made the following points in it’s written document: 12. The position of the Local Authority is that the hearing as listed in April should go ahead. The case is ready for a final hearing. There is no necessity to extend these proceedings any further and the Court will have all the information it needs at that stage to make decisions in this case. These proceedings have now been ongoing for some 2 years and 7 months and the question here really is, how many more years can this case be expected to continue?  13. The paramount consideration for the Court is the welfare of the child (section 1(1) Children Act 1989) and any delay in determining the questions in the case is detrimental to the welfare of the child (section 1(2) Children Act 1989).  14. Whilst it is appreciated that it is far from ideal for the final hearing to proceed whilst the mother is some 8 months pregnant, this must be balanced against the prospect of a delay of another 4 months for this child and proceedings hitting the 3-year mark. It is in the interests of justice for this final hearing to proceed without delay.  15. If the adjournment is granted, further applications are likely to be made by the mother for further adjournments before the next listed final hearing. The Local Authority would submit that the needs of J of stability and certainty in his life should be the paramount consideration, and in the Local Authority’s submission, the child’s right to a private and family life out of proceedings outweighs the mother’s case for an adjournment.  16. It is the Local Authority’s position that the mother would receive a fair trial, and simply being pregnant is not a reason to suggest that she would not. No medical evidence has been provided to the Court to suggest that the mother has any particular difficulties with this pregnancy as suggested within the skeleton argument by reference to the early delivery of J. 17. There are a number of participation considerations that can be given to the mother. Namely, that the mother give evidence over video link and attend from the comfort of her own home. The mother to not be expected to attend Court in person (paragraph 30, Equal Treatment Bench Book). The mother can also be afforded regular breaks throughout Court days. It is not anticipated that the mother’s evidence would last any longer than an absolute maximum of one day even with regular breaks. It is anticipated that the mother would give evidence on Day 3, namely the 10th April, which is nearly 1 month away from her due date. 18. The Equal Treatment Bench Book is not law. It is guidance that the judiciary are encouraged to take into account, and in the Local Authority’s view, the above participation considerations do take that guidance into account when balancing the mother’s pregnancy against the Court’s paramount consideration and the interests of justice. The delay would be detrimental to J and an extension of proceedings should be granted only if necessary and if the Court is not equipped to make decisions (Re B-S).”  On balance, considering the length of the proceedings already and the need to avoid further delay, the Guardian supported an April hearing. The Judge refused to adjourn the final hearing and he dismissed the application. This is the reasoning given by the Judge for his decision: Yes, it is a difficult one. Certainly not an easy decision. I’m just reminding myself again of what was in the LA’s position statement. This case has run far too long already, not the fault of anyone. Not in J’s interest to continue to run and run. Whilst taking on board all of the arguments raised on behalf of Mother, I do take the view that it is desirable, if at all possible, that the hearing should be completed before she gives birth. Also, mindful there are risks with starting a hearing in April, highlighted by Miss S [mother’s solicitor], and yes, it may go wrong but overall, I take the view that attempt should be made to hear the case. There’s no guarantee it’ll work but it’s important to try to make it work for that to be attempted. Of course, Mother’s best interests need to be considered, there will have to be breaks, if worst comes to worst, hearing may need to go off. My view is that on balance, it is right it should proceed in April and it is important to try and make this work for J and on balance the hearing should proceed. Everyone will have to do their best to try make sure that that works. That is my decision in relation to that. Indeed, if it can be done, Mother may not see it in that way now, but it is likely to be better for her to have these proceedings over and done with before giving birth. The court order which was drawn up after the decision contained the following information (often called a recital or a recording’): “AND UPON the Court determining in an ex tempore judgement that it was desirable for the proceedings to be completed before the mother gives birth, that it was important for J given the delay in this case for matters to be concluded without delay, and that although the listing was not without risk, it was sufficiently important to make matters work and consideration should be given to the mother throughout that hearing by providing regular breaks accordingly.” The Appeal J’s mother made an application to appeal to the Court of Appeal. She appealed the decision to refuse the adjournment of the final hearing. The appeal was made on the basis that: the Judge placed insignificant weight upon the manner in which the mother’s pregnancy would affect her ability to partake in a final hearing, and  because he placed too much weight on the need for the case to be finalised without further delay. The Outcome  A successful appeal against a case management decision, which this was, is really quite rare. However, this was one of those rare cases, as the Court of Appeal granted the appeal. The judgment which has been published by the Court of Appeal can be read in full here. The Court of Appeal reiterated some basic concepts in the judgment. In summary they are these: The decision not to adjourn a trial, as was being sought in this case, is a case management decision. The welfare paramountcy principle under s. 1 (1) of the Children Act 1989 (which basically means that the child’s welfare is the paramount consideration for the Court) applies when a court determines any question with respect to the upbringing of a child. It does not apply to case management decisions.  The ‘touchstone’ for case management decisions is justice, not welfare, though in a family case welfare plays an important part in the assessment. The overriding objective in Rule 1 of the Family Procedure Rules 2010, which requires the court to deal with a case justly, having regard to any welfare issues involved. That includes ensuring that it is dealt with expeditiously and fairly.  The delay principle under s. 1 (2) Children Act 1989 – which provides that in any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child – does apply to case management decisions. The 26 week timetable for proceedings to be disposed of, which is also set by statute, also applied. In this case the Judge did not state what test he was applying, and it was not clear whether he was influenced by the incorrect submissions about the welfare principle. At the hearing before the Judge, the Judge was referred to The Equal Treatment Bench Book (‘ETBB’). This is a text produced by judges, for judges. It is the product of serious thought about fairness in the conduct of legal proceedings. Its guidance should be taken into account wherever it is applicable. The ETBB is available to all to read here. The Court of Appeal felt the ETBB was applicable here, and despite the Judge being referred to it by the advocates, he did not mention it. The ETBB advises the court to achieve sensitive listing. It advises that a woman in the last month of pregnancy should not be expected to attend a court or tribunal unless she feels able to do so. Whether that refers to physical attendance or to participation, the Court of Appeal stated that the Judge should have addressed the fact that his order was not in accordance with the guidance. The “try it and see” approach adopted by the Judge is what the guidance clearly aims to avoid.  The Court of Appeal also said that the guidance is there to protect women from the argument, which was made in this case, that there is no medical evidence of any particular risk to the pregnancy. It was not for the mother to put forward additional medical reasons to justify her request for postponement; if such evidence exists it may add to the picture, but its absence does not weaken the guidance.  The final hearing in this case ‘will be of very considerable importance’ for J and J’s family. As the Court of Appeal pointed out, it will determine J’s future and will very likely influence the future of the unborn child, for whom proceedings are also contemplated. The following paragraph from the judgment is helpful to repeat in full: A hearing in these circumstances is bound to be exceptionally stressful for a person in this young mother’s position, and her experience of her first pregnancy can only exacerbate matters. Her evidence will doubtless be significant, and she will face cross-examination. The Local Authority has suggested that she need not attend court in person and that she could give evidence by video link and attend the rest of the hearing “from the comfort of her own home”. This overlooks the important fact that a party participating in a court hearing remotely is still attending court and should be able to engage fully with the process. The mother is in any event entitled to expect that she could attend for the whole of the hearing in person if she wants, and certainly that she should be able to choose to attend court to give evidence: indeed we are told that the court was willing to accommodate that. The decision of the appeal court was that the Judge did not sufficiently grapple with these matters. There were numerous difficulties identified. The court imposed a date, despite being told of the mother’s situation and that of her advocate. The Court of Appel found that the starting point, which did not happen, was to identify the likely practical arrangements for the hearing. A general intention to allow breaks in proceedings, whatever their format, does not remedy the position if the hearing should not be taking place at all. Then, no adequate consideration was given to the mother’s anxiety, expressed with moderation, at the prospect of having to participate in such a heavy hearing during her last month of pregnancy. Rather than engaging with her concerns, the Judge told her that it would be better for her if the hearing went ahead, and he did not refer to the fact that she would be doing so without her advocate of choice in a case with a long history. Ground One of the appeal was therefore successful.  Although the Court of Appeal said that there was ‘obvious good reason to be concerned about the impact on J of the disturbing length of these proceedings, which, after 2½ years, are now in week 135’, the Judge needed to consider the actual consequences of further delay for J and the fact that he is in a familiar and potentially permanent foster placement was clearly of some relevance. The Court of Appeal made the point that there are some family cases that must be heard although a party is at a disadvantage, giving the example of interim care orders at the time of a new birth which are sometimes inevitable for the protection of the baby, and there will also be cases where short, procedural hearings can quite properly take place when substantial trials cannot.  The original Judge did not explain why avoidance of further delay was such an overriding consideration. Ground Two of the appeal was also made out. 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! eature picture of the Royal Courts of Justice : image by piqsels

A fact-finding exercise within an application for a child arrangements order with regard to the younger of two half-brothers. The only evidence had been from the parents. The mother had accused the father of grabbing her by the threat, punching her, and emotionally abusive and controlling behaviour. In HHJ Robin Tolson QC's view, "the individual allegations of domestic violence in the Schedule advanced by the mother against the father were insignificant in themselves", and unlikely to affect child arrangements. It was also, he said, "necessary to factor in the effects of a system which encourages allegations of domestic abuse", as well as the mother's mental health issues. On the morning of the trial, the mother had added an allegation of rape. HHJ Robin Tolson QC found that everything turned on the credibility of the witnesses, and none of the allegations were proven beyond limited admissions made by the father. Those admissions did mean, however, that the mother was "a victim of domestic abuse". He decided that a guardian should be appointed for the child, and a direction was made for the relevant local authority to undertake an investigation of both children to determine whether public law proceedings should be issued. By consent, he directed a psychiatric assessment of the mother. He also made an order for the child to spend time with his father, supervised by an independent social worker, once the international quarantine rules permitted it. Judgment, published: 12/04/2021 Topics Share

‘Yes’, according to new research from the Nuffield Family Justice Observatory (NFJO). The purpose and effectiveness of this type of court order is currently being considered by one of the innumerable sub-groups of the Public Law Working Group. Now, the NFJO have reported on a rapid survey of professionals and parents who were asked quite detailed questions about supervision orders (SOs) in which they were involved during the last six years (presumably since the legislative changes to family proceedings in 2014). There was a good response from nearly 300 social work and legal professionals but only ten parents responded. However the NFJO is carrying out some separate work with focus groups for parents’ views. Coincidentally, a lengthy High Court judgment from Mr Justice Williams that concludes with a supervision order was published on BAILII last month. See further on this case below. What is a supervision order? SOs were introduced alongside care orders by section 31 Children Act 1989 and can be made in accordance with the same ‘threshold criteria’ as a care order. However they only last for 12 months and they do not give shared parental responsibility (PR) to the local authority (LA). As long ago as 1993, a judge commented that ‘the content of the two orders are wholly and utterly different …supervision should not in any sense be seen as a watered down verison of care’ (Re S (J) [1993] 2 FLR 919). However, nor should they be used as a lever to ensure LAs fulfil their duties toward a child in need (Re V (A minor) (Care or Supervision Order) [1996] 1 FLR 776). Under a SO, the LA must advise, assist and befriend the supervised child and continue with an overview as to whether the order is being complied with or should be varied or discharged. The order may contain requirements about where the child lives, appointments they have to go to, or activities they have to take part in. If the order is not being complied with, the supervising socal worker can’t enforce it but can only apply to court for the order to be varied or discharged. In recent years, SOs have usually appeared not as as an actual application by the LA but as an option during a care application, where parents are co-operating and, although the threshold criteria have been reached, the child can stay safely with parents or family members without the LA needing to share PR. The Nuffield FJO has reported previously on a tendency to accompany special guardianship orders with SOs. In this new report, they look at standalone supervision orders made in relation to children who had returned home at the end of care proceedings or who had stayed at home or been returned during proceedings. There have been concerns in recent years that hard-pressed LAs are not able to provide the 12 months’ support that the court may envisage when the SOs are made. The Nuffield FJO survey Full details and a summary of the report: Ryan, M., Roe, A., and Rehill, J. (2021). Supervision orders in care proceedings: survey findings. London: Nuffield Family Justice Observatory – are available on the website. It provides a wealth of timely information from the front line. The report notes that the Public Law Working Group had recommended that government should review supervision orders with the aim of providing ‘a more robust and effective form of a public law order’. Almost all the respondents wanted to keep SOs as a legal option but experiences of their effectiveness varied. The plan for review was therefore supported. As well as the differences noted in the extent of support and accountability under the orders, there were some doubts expressed about whether SOs were providing more support for families than would be provided under LA procedures. There were also variations across the country between court areas as to whether children were placed or returned home under care orders or SOs. In theory, there should be clear delineation between whether the LA needs to share PR (i.e. so the LA could remove the children without starting a whole new court application for a care order) or not (where a SO is appropriate). SOs were being made for the following reasons: Ensuring the continued involvement of the local authority Because it is a more proportionate order than an intrusive care order Where significant improvements had been made during the care proceedings Recognising that risk still needed to be managed To encourage increased engagement by parents To supervise contact with other family members where this is difficult to manage Where they may be more suitable for older children Respondents reported low rates of section 16 family assistance orders (FAOs) being made, although these might have been helpful for the family when children were returned home. FAOs can be made by the court when families need assistance e.g. with contact but don’t necessarily also need 12 months supervision. Less than a quarter of respondents had experience of an FAO being made in the past six years. The report goes on to quote respondents’ comments on their varied experiences of the way orders are set out and the way processes are then managed, monitored and reviewed. There were mixed views on how useful SOs are in the current climate and whether they contribute much beyond a child in need plan (England) or a care and support plan (Wales). Although 90% of respondents wanted to keep SOs, half of those also wanted changes made. The main call was for: ‘specific, mandatory obligations … clearly set out for parents and the local authority, with clear consequences if these were not met over the duration of the order’ (p 32). ‘Advise, assist and befriend’ was vague and needed rewording. Other suggestions included: written plans setting out goals and obligations; enforcing compliance with the requirements of the order by going back to court; independent review of the plans; and more flexibility over timescales. Current use of supervision orders – Local Authority v RR A new judgment from Mr Justice Williams, Local Authority v RR [2021] EWFC B14, heard in March 2021, concludes with the making of a supervision order in a very protracted, complex case relating to a 15 year old, who the judge met personally as part of his deliberations. The proceedings began as a private law application in 2016 that subsequently involved an interim care order in 2020. Unfortunately, this is yet another case where the judge observes that a fact-finding hearing about a mother’s allegations should have taken place years ago. Although a care order was not made by Williams J, he is clear that, in this case, a SO is needed with a specific requirement that the boy comply with his LA supervisor’s directions, because ‘no order’ would leave the boy without the support he needs, although his father (with whom he lives) had always and continues to cooperate with the LA. It is suggested that the existence of the SO may help the father exert some authority in assisting his son’s welfare. The judgment is notable in recording the judge’s regrets about: The fact that I am unable to provide to the parties or to KK a full explanation as to how we have reached this sad end is a further source of concern. However, there are cases where despite the best endeavours of those involved we are simply unable to resolve the issues in the way we can in most cases and that we have to accept that some family problems are insoluble to traditional remedies. Whether in this case that was because of things that were done or not done in the course of this family’s journey through the family justice system or whether it was because of seeds that were sown long before they passed through our doorways I cannot know. (para 74) The judge states in several places how seriously he takes the child’s situation, despite there being no care order. This is a helpful explantion of why (in this case) a SO is preferable to a child in need plan: A purely voluntary plan will be susceptible to failure when challenging moments arise. A supervision order will not be quite so susceptible as the supervising social worker will be able to fall back on the statutory duty that the local authority have under the order. In short, they will not be able to take non-engagement lying down but will have to pursue it in some shape or form. (para 64) ___________________________________________ 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! ___________________________________________ Image: Thanks to Conner Downey at flickr

‘In a report published at the end of last month the House of Lords Constitution Committee made a number of criticisms of the way the courts have responded to the coronavirus pandemic and the …...

The issue to determine was how much the four-year-old daughter should see of her father. The mother had alleged domestic abuse and rape. HHJ Tolson QC said it might be thought that the allegations "could have been safely consigned to the past", given that "at the time of the first allegation the mother was not even pregnant with [the daughter]" but in "the era in which we now operate … such allegations are invariably taken very seriously". He invited "both parents and everyone involved in the case to recall that all we are about is establishing, if possible, a good relationship between a little girl and her father" and the allegations of rape, which he described as "limited non-consensual sex", "would have, in my judgment, almost no implications at this stage for the future development of the relationship between the father and [the daughter]". He found that the mother's allegations of the first incident were "deeply unconvincing stuff", which meant that in his view he was "faced with a dishonest witness and it is a very long step indeed to my accepting the accuracy of her version of events" as to the second alleged incident. He reached the conclusion that the events did not happen, while the alleged "financial abuse and emotional abuse and harassment, have not been investigated during this trial" and had "no implications for the future child arrangements in the context of this case". His conclusion was that "there are no relevant findings which amount to any risk to the child or indeed any risk to the mother herself", and so the way was now clear "to develop the father's relationship with [the daughter] into one where there is a normal relationship between a separated father and his daughter". He provided for a further hearing, should agreement between the parties prove impossible. A later note stated that the parties had reached agreement and an order by consent had been made. Judgment, published: 06/04/2021 Topics Share

Home > Judgments AB v CD & Ors [2021] EWHC 741 An application by, AB, the mother of a child, XY for a declaration that she and CD, the child’s father, have the legal ability to consent to the administration of hormone treatment to suppress puberty, known as “PBs”/puberty blockers. The case concerned a 15 year-old child, with Gender Dysphoria, who was born a boy, came out as transgender at age 10, and had transitioned socially in all aspects of life, including legal paper work, which included a name change by deed poll. ___ The court framed the questions to be answered as follows [as per Sir James Munby's formulation]:- a. Do the parents retain the legal ability to consent to the treatment? b. Does the administration of PBs fall into a "special category" of medical treatment by which either: i. An application must be made to the Court before they can be prescribed? ii. As a matter of good practice an application should be made to the Court ? The decision followed hot on the heels of the Divisional Court's decision in Bell v The Tavistock and Portman NHS Foundation Trust & Ors [2020] EWHC 3274 (Admin) ("Bell"), which set out the matters that a child would have to understand, retain and weigh up in order to have the requisite competence in relation to puberty blockers. Although XY had provided consent to the treatment prior to Bell, an updating capacity assessment on the basis of the Bell criteria had not been carried out. The parents wished to consent on XY's behalf. Bell is currently the subject of an appeal to the Court of Appeal due to be heard in June. In considering whether the parents retained the legal ability to consent to treatment, the court reviewed the authorities which it found were replete with statements 'about not merely the centrality of parents in decisions about their children, but also as to why the Courts should in the vast majority of situations respect and uphold the parents' views and decision making about their children.', which were aspects of the parental rights and duties set out in Article 5 of the UNCRC and Article 8 of the ECHR. The court approached the problem on the following basis:- "It therefore cannot be established with certainty whether [XY] is, or is not, Gillick competent. In those circumstances, I am going to consider the matter on two alternative bases; either that [XY] is not Gillick competent, or that [XY] is Gillick competent, but it remains relevant whether [XY's] parents can also give operative consent to the treatment." The court reviewed the decision in Gillick and concluded, neatly, that:- "In the present case, in the light of the decision in Bell, and the particular issues around Gillick competence explained in that judgment, it has not been possible to ascertain whether the child is competent. In this case, there are two options. If the child is Gillick competent, [XY] has not objected to her parent giving consent on her behalf. As such, a doctor can rely on the consent given by her parents. Alternatively, the child is not Gillick competent. In that case, her parents can consent on her behalf. It is not necessary for me or a doctor to investigate which route applies to give the parents authority to give consent. Therefore, in my view, whether or not XY is Gillick competent to make the decision about PBs, her parents retain the parental right to consent to that treatment." Hence, the court concluded, the parental right to consent to treatment continues even when a child is Gillick competent, save where the parents are seeking to override the decision of the child. With respect to the second issue, as to whether PBs fall into a special category of medical treatment requiring court authorisation either as a matter of good practice or a matter of law, the court considered that there were 2 sub issues:- a) firstly, "the existence and/or scope of any "special category"; and, b) secondly, "whether PBs should fall within such a category." The court considered, in the light of case law that whether it was good practice or a legal requirement was probably in most cases a distinction without a difference. Further, the court was of the view that whether, if it existed at all, there was some limited 'special category' of medical treatment, it was very limited and PBs did not fall within it. The only special category case in respect of which the court could identify a requirement to come to court was a case of the kind in Re D (A Minor) (Wardship Sterilisation) [1976] 1 All ER 326 i.e. "in a the case of a "non-therapeutic" sterilisation of an 11 year old." The court noting that- "In all other contexts, including where the parental decision will lead to the child's life ending, the Court has imposed no such requirement. There are a range of cases where there does have to be Court approval, but this is where there is a clinical disagreement; possible alternative treatment of the medical condition in issue; or the decision is, in the opinion of clinicians, finely balanced. These are fact specific instances rather than examples of any special category of treatment where the Court's role is required simply because of the nature of the treatment." The court went on to state that whilst "the ratio of Bell is that a child is very unlikely to be in a position to understand and weigh up the[ Bell] factors…" in order to establish the relevant Gillick competency, the uncontested evidence in this case strongly suggested that 'XY's parents have fully considered these matters and come to a careful and informed decision.', and, as a matter of principle, the factors in Bell 'do not justify removing the parental right to consent.' The court then addressed its concerns about 2 issues in the context of parents seeking to consent for PB's to children, given the broader backdrop of 'division of clinical and ethical views [which had] become highly polarised.' and the possibility of parents feeling under pressure to consent from a child who has Gender Dysphoria and is convinced they should be prescribed PBs. 1. Firstly, the court was concerned that in the context of the structure of the Tavistock and UCL, "…it may be that clinical difference and disagreement will not necessarily be fully exposed. The taking of strong, and perhaps fixed, positions as to the appropriateness of the use of PBs may make it difficult for a parent to be given a truly independent second opinion. However, in my view this is a matter for the various regulatory bodies, NHS England and the Care Quality Commission, to address when imposing standards and good practice on the Second and Third Respondents." To address this issue the court explored whether "It may well be that, given the particular issues involved, additional safeguards should be built into the clinical decision making, for example by a requirement for an independent second opinion. Any such requirement is a matter for the regulatory and oversight bodies and may be a matter considered by the Cass Review. My view is that this is likely to be a better safeguard for the very vulnerable children concerned rather than removing the ability in law of the parents giving consent. The clinical expert who gave the second opinion could then have a role in advising whether or not the particular case should be brought to Court. 2. Secondly, the court was satisfied that "The pressure on parents to give consent is something that all the clinicians concerned are likely to be fully alive to. Ms Morris submitted that GIDS was very much aware of the issue, and that considerable efforts were made to ensure that there was a family-based range of consultations and that parents saw clinicians in private as well as with their children. If the clinicians, or indeed any one of them, is concerned that the parents are being pressured to give consent, then I have no doubt such a case should be brought to Court." Hence, depending on the circumstances, particular 'fact specific' cases regarding the administration of BPs may still find their way to court, but not by reason of BPs being in a special category, if such a thing exists, requiring reference to the court per se. Case summary by Barry McAlinden, Barrister, Field Court Chambers For full case summary please see BAILII

Home > Judgments AB v CD [2021] EWHC 819 In a private law children case with cross-allegations of domestic abuse, Mrs Justice Roberts of the High Court allowed a father’s appeal against Recorder Armitage’s findings of rape and threats to remove their child to Pakistan, following a 4-day fact-finding hearing. Roberts J determined that the manner in which the Recorder reached her conclusions was flawed, and the case was remitted for an early rehearing. ___ Background The parents are doctors who married in 2011 but separated the following year. At that time, the respondent mother was pregnant with their daughter, who has lived with her mother since birth. The child was 8 years old at the time of this appeal. The parents were judicially separated by April 2013. In October 2013, the father was convicted of criminal charges relating to unauthorised and illegal provision of prescription drugs. He received a nine-month custodial sentence and lost his practising certificate. He unsuccessfully appealed against the removal of his licence to practice as a doctor in this jurisdiction. Thereafter, the father spent much of his time in Pakistan and Saudi Arabia. Despite the parents having separated and the father spending significant time abroad, the parents spent time together with the child as a family. The parents had also attempted to make arrangements for the child to have a relationship with her father, but these attempts broke down. Proceedings Therefore, in November 2019, the father made an application for contact with the child. The mother's domestic abuse allegations against the father did not surface until he issued his application. The father claimed that the mother's allegations, which she said started in 2006, were entirely fabricated. Following the mother's allegations, the father issued a further application for the child to live with him. The father also made counter-allegations against the mother including of sexual and physical abuse and parental alienation. There were therefore two separate Scott Schedules. Recorder Armitage heard evidence over 2 ½ days. She found five of the mother's allegations proved, including sexual and emotional abuse and threats to remove the child to Pakistan. She did not find the mother's allegations of physical abuse proved, but in a recital on the face of her approved order, she referred to those allegations as having "strength and power". The Recorder accepted only one of the father's counter-allegations, in relation to the mother snatching a credit card and throwing some items to the floor. Appeal On behalf of the father, an appeal with eight grounds was lodged, arguing that the judge's reasoning process was fundamentally flawed and that her findings could not stand. The judge was criticised for compartmentalising the evidence and failing to consider the father's case that the allegations against him had been fabricated. It was said that the judge focussed on parts of the evidence; excluded some very serious matters (e.g. the allegations of threats to kill and throwing acid); and took a selective approach. The judge had decided she did not need to consider or determine some of the allegations raised by the mother. On behalf of the father, it was argued that such a decision drove the Recorder to consider the rape allegations without asking herself whether the mother was capable of fabricating very serious allegations. It was argued on behalf of the father that the Recorder's decision not to make specific findings about certain aspects of the evidence meant that her judgment did not set out a "line of sight" into how far evidence that the Recorder found "unnecessary or unhelpful" did instead influence her deliberations. The father's appeal argued that the Recorder's judgment did not include a summary of the oral evidence she heard; an account of her impression of the witnesses as truthful or otherwise; or an account of the weight which she had attached to any of these matters. It was said that the Recorder did not weigh the parties' evidence, in order to conclude that the mother's evidence was to be preferred. The grounds of the appeal also included a complaint that the Recorder had failed to give herself a Lucas direction. In relation to the rape allegations, the court had prevented the father from putting some evidence and it was said that the Recorder's judgment did not address other evidence, including that the father and the mother had agreed that the father lacked a desire to have sexual relations with his wife. It was also submitted on behalf of the father that the Recorder had failed to explore all the documentary evidence which had the potential to undermine the allegations of rape. On behalf of the mother, it was argued that the findings were reliable when considered in the context of the whole judgment and that the Recorder had the advantage of seeing and hearing the parties' oral evidence. With no procedural irregularity or error of law, the High Court was asked to find that there was no justification for disturbing those findings. It was highlighted that counsel did not seek further amplification or qualification of the judgment. The law Appeals are governed by Rule 30.12 of the Family Procedure Rules 2010 providing that an appeal shall be allowed when the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity and an appellate court is permitted to draw inferences that are justified on the basis of the evidence. All appellant courts must consider: (i) has the judge in the court below made an error of law? (ii) has the judge reached a conclusion on the facts which was not open to him or her from the foot of the evidence which was before the court? (iii) did he or she fail to take into account, or give proper weight to, a significant piece of evidence or matter and/or given inappropriate or undue weight to another aspect of the evidence? (iv) did the judge adopt a process which was procedurally irregular and unfair so as to infect or contaminate his/her decision to the extent where it is unjust? (v) did the judge exercise his or her discretion in a manner which was outside the boundaries within which a reasonable disagreement is possible and permissible? A fact-find judgment must be clear, in part because it can have far-reaching, life-changing, consequences for families. Guidance on the balance to be struck between clarity and "the exigencies of… over-burdened court lists" has been provided by Munby P (as he was then) in Re F (Children) [2016] EWCA Civ 546, paras 22-23. Decision In this case, it was not suggested that the Recorder made any error of law, but rather that she failed to properly assess the evidence and improperly weighed and balanced it. Roberts J notes in this judgment that the Recorder's decision to ignore certain allegations was a case-management decision which she was entitled to make. Having declined to consider them, the position as a matter of law was that they were never proved and both parties were entitled to proceed on the basis that they played no part in her analysis or deliberations. But the Recorder's recital (acknowledging the "strength and power" of those allegations) suggested that the Recorder considered they might be true, and therefore engendered doubt about whether and to what level the Recorder analysed those matters when considering credibility. The appellant court found that there had been an absence of analysis in the Recorder's judgment on the issues of the father's credibility and the father's case that he was facing a series of "escalating and false allegations manufactured by the mother in order to subvert any prospects of success" in his contact application. Roberts J also highlighted that the Recorder's approach to a Lucas direction was not sufficiently nuanced because it suggested the Recorder was expunging from her mind the fact that the father had been found to be dishonest in the criminal proceedings. In fact, a Lucas direction is a reminder that "a person can lie for a number of different reasons including shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure" and that a judgment must reflect on how that direction has shaped the approach to relevant issues of credibility. The Recorder was wrong to completely put from her mind the father's previous conviction for dishonesty. Finally, Roberts J concluded that the Recorder's reasoning was "insufficient to explain how she conducted her assessment of credibility and which matters she did, or did not, weigh in the balance when reaching her conclusions". It was a mistake, determined Roberts J, to have included within her approved order the recital about the "strength and power" of the allegations which she claims to have ignored in her survey of the evidence. For practitioners and judges, in cases when one party claims that allegations have been fabricated, it is incumbent on the fact-finder to explain carefully why that claim is rejected. Summary by Lauren Suding, Barrister, Field Court Chambers. For full case summary, please see BAILII

An application concerning two children: a girl and a boy, aged 3 and 9. The mother and father had separated during 2016 and had since divorced. The mother and children had moved from London to the countryside for the lockdown, but the mother now wished to make that a permanent move. The question for the court was whether it was in the son's best interests to live with his father in London or with his mother and sister in the countryside. The Cafcass report had concluded that it would be better for the son to stay with his father. The single joint expert had not been asked to make a specific recommendation, but made it clear that she thought the partial separation from the mother had been damaging to the son's mental health. HHJ Lloyd-Jones was not impressed by the single joint expert as a witness. In his view, the mother's evidence suggested that she was seeking to mould the children's lives around her own plans, while the father's evidence indicated that he had "a clear grasp of what his son's best interests were". After considering the welfare checklist contained in s 1(3) of the Children Act 1989, and the issues involved in dividing the siblings, HHJ Lloyd-Jones decided that on weekdays the daughter would live with her mother and the son with the father, and they would spend the weekends together, alternating between the parents, half-terms with the mother, with other holidays split evenly between the parents. Judgment, published: 12/04/2021 Topics Share

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Home > General Podcasts Family Law Week Weekly Podcast Season 5 Episode 4 Rachel Cooper is joined by Edward Devereux QC of Harcourt Chambers.               Rachel Cooper is joined in this episode by Edward Devereux QC of Harcourt Chambers, to discuss the recent Supreme Court decision of G v G [2021] UKSC 9. Edward was the youngest specialist family barrister to be appointed a QC in the last twenty years and he remains the youngest family law QC in England and Wales. He has been variously described as "a titan" (Chambers UK Guide to the Legal Profession (2020)), "one of the most impressive advocates at the family bar" (The Legal 500, (2021)) and "one of the heavyweights of family law, a phenomenal advocate… terrifying to the other side when he cross-examines" (Chambers UK Guide to the Legal Profession (2020)). He has a wide-ranging practice in family law with a particular emphasis on cases with an international dimension. Edward is an author and editor of Dicey, Morris and Collins, The Conflict of Laws and is also an author and editor of Clarke Hall and Morrison on Children.  He also wrote the chapter on child abduction for Child Case Management Practice (editors, Lord Justice Ryder and Iain Goldrein QC, third edition).   Rachel and Edward discuss his life and career and then enjoy an in-depth discussion about the recent Supreme Court decision of G v G [2021] UKSC 9. G v G case considered the interrelationship between the law relating to child abduction and the law relating to asylum and immigration. It specifically considered how cases should be dealt with where there are two different sets of proceedings: the 1980 Hague Convention proceedings being determined in the Family Division of the High Court; and the asylum application that is being determined by the Secretary of State for the Home Department. Click here to listen to the podcast The podcast can be downloaded via Libsyn Also available on Stitcher