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Kathleen Folbigg: Mother convicted of killing her four children loses appeal | World News

Kathleen Folbigg: Mother convicted of killing her four children loses appeal | World News | Children In Law | Scoop.it
The Australian was jailed for killing her children but experts say there is a "strong presumption'' they died from natural causes.
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Law must change to open up justice to scrutiny in family courts | Law | The Times

Law must change to open up justice to scrutiny in family courts | Law | The Times | Children In Law | Scoop.it
Tens of thousands of children are removed from their parents into the inconsistent care of the state every year.Yet many attempts to report their cases have been thwarted by a section of the...
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Mani Basi and Lucy Logan Green present the second part in a two part series for the Family Law Journal. - 4PB Family Law News

Mani Basi and Lucy Logan Green present the second part in a two part series for the Family Law Journal. - 4PB Family Law News | Children In Law | Scoop.it
Mani Basi and Lucy Logan Green write for the Family Law Journal in Part II, looking at ‘Local authority input into private law proceedings’. This second instalment further considers the intersection of private and public children law  on the law relating to special guardianship orders.
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Care review cannot assume extra funding for recommendations, says government

Care review cannot assume extra funding for recommendations, says government | Children In Law | Scoop.it
The children’s social care review cannot assume additional government funding to implement its recommendations, a contract, signed between review head Josh MacAlister and the Department for Education, has shown.
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M v F & Ors [2021] EWHC 585 (Fam)

M v F & Ors [2021] EWHC 585 (Fam) | Children In Law | Scoop.it
A fact-finding hearing to determine whether the courts of England and Wales had jurisdiction to determine welfare issues in relation to three children. The applicant was the mother of the three children, the respondent the father. Their precise history was disputed, but both parents had come to England as asylum seekers. The mother claimed to be from Yemen and the father claimed to be from Somalia, and they had three children. One was born in Sheffield, one in Yemen, and, after the family left the UK in 2008, the third was born in either Yemen or Saudi Arabia. Ms Sarah Morgan QC, sitting as a deputy High Court judge, came to the view that some of the evidence placed before her had been misleading and intended to mislead. The case had unusually difficult features, caused by the passage of time, and there was no agreement between the parties even as to that which she was being invited to consider and determine. She found that the family had left (and the mother had consented to the children's departure from) England and Wales in 2008 for the purposes of a holiday and not as a permanent relocation. Immediately before leaving, the family had been habitually resident in England and Wales. Neither before nor once they had left had the mother indicated consent to a relocation. Thus there had been a wrongful removal in that the mother had consented to a holiday but not to a relocation, and/or there had been a wrongful retention when the father failed to arrange their return to England and Wales at the conclusion of the holiday. She found that the court had jurisdiction in respect of the two older children, and although the third child had never lived in or even visited the United Kingdom, jurisdiction in respect of her existed by reason of the doctrine of Parens Patriae. The matter was listed for consequential directions in consultation with Williams J. Judgment, published: 20/03/2021 Topics Share
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Family Law Week: SZ v Birmingham City Council & Ors [2021] EWFC 15

Home > Judgments SZ v Birmingham City Council & Ors [2021] EWFC 15 This was a decision of Mr Justice Mostyn to summarily dismiss a father’s application for contact with two children in care. ___ The judgment concerned the father's (F) application for contact with his children B (aged 16 ¾) and K (aged 14 ¼). Both children were in the care of Birmingham City Council (LA). B was living with the mother (M) and K was living in a care home, but having regular contact with M and B. The LA had applied to discharge the care order in respect of B. There had been a lengthy set of care proceedings which concluded in 2013 with care orders and an order pursuant to s.34(4) of the Children Act 1989, granting the LA authority to refuse contact between the children and F. B and K had therefore not had any contact with F since 2012. F sought to keep in contact with B and K indirectly and for them to be able to exchange photographs and drawings with his three youngest children in his care. B and K were not only half-siblings of those children, but also their aunt and uncle as F had fathered the children with B and K's half-sister. A case management order identified that F's application for contact must be preceded by an application to discharge the s.34(4) order. The court required the LA the serve a statement in response to F's application together with a plan setting out what steps were necessary for the assessment of F in respect of his contact application, if it was determined that his application should proceed. The statement prepared recorded how fearful of F both children were. The existence of F's applications was not revealed to the children for fear of traumatising them further. The inferential conclusion was that they would unquestionably refuse to agree to any contact.  The LA sought summary dismissal of F's applications. The court confirmed that it has a wide power in children proceedings to dismiss summarily an application where it is satisfied that it lacks enough merit to justify it being pursued (notwithstanding the complete absence of any such power in the Family Procedure Rules themselves). F's applications were held to be "bound to fail" and therefore, summarily dismissed for the following reasons: 1. It was clear that the children would unambiguously refuse to engage with any form of contact and in light of their ages, their decision, if not objectively foolish or unreasonable, will almost invariably be decisive. On the evidence before the court, the children's decision was neither foolish nor unreasonable. The court accepted the LA's evidence that it would not be in the children's best interests for there to be any form of contact. 2. The effect of the s.34(4) order was to do no more than relieve the LA of its duty to allow the children actual reasonable contact with their parents. It does not relieve the LA of its wider duty to promote and maintain contact between a child and his/her family, under Schedule 2 Paragraph 15(1): "Where a child is being looked after by a local authority, the authority shall, unless it is not reasonably practicable or consistent with his welfare, endeavour to promote contact between the child and his parents." Therefore, F's application was premature. The correct course of action was to send a letter to the LA, who would have to apply the duty set out in paragraph 15(1). The Judge commented that "a really carefully drafted letter written in sensitive and emollient terms, which expresses regret and contrition for the nine-year silence as well as for past misdeeds, might well be difficult to justify rejecting." If the LA declined to pass on the letter, then F could commence an application for contact under s.34(3) at that stage. Additionally, the court discharged the care order in respect of B. Case summary by Sophie Smith-Holland, Barrister, St John's Chambers For full case, please see BAILII
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Family Law Week: Children in care homes: Education Committee launches call for written evidence

Home > News Children in care homes: Education Committee launches call for written evidence The House of Commons Education Committee has launched a call for written evidence as part of its inquiry into children's homes. The inquiry is examining issues around attainment and employment outcomes for young people in children's homes, as well as the support available and regulation of the sector. It is part of the Committee's continuing work examining the issues faced by left behind groups. The Committee is inviting written submissions addressing any or all of the following areas: Educational outcomes for children and young people in children's homes, including attainment and progression to education, employment and training destinations The quality of, and access to, support for children and young people in children's homes, including support for those with special education needs, and the support available at transition points The use and appropriateness of unregulated provision Rates of criminalisation of children in children's homes The sufficiency of places in children's homes, and the regional locations of homes The impact of the Covid-19 pandemic, including the extent to which this might increase the numbers of children's homes places needed The support available for kinship carers, and for children in homes to maintain relationships with their birth families. The deadline for submissions is Friday, 23 April. For further information concerning the inquiry, click here. 21/3/21
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Family Law Week: Supreme Court allows mother’s appeal in 1980 Hague Convention / asylum case

Home > News Supreme Court allows mother’s appeal in 1980 Hague Convention / asylum case The Supreme Court has held that a child who can objectively be understood to be an applicant for asylum cannot be returned to the country from which he or she has sought refuge before the final determination of the asylum claim. The Supreme Court substantially allowed the mother's appeal in G v G [2021] UKSC 9 and remitted the case to the High Court for reconsideration of the 1980 Hague Convention application on that basis. Lord Stephens gave the only judgment, with which the other members of the Court – Lord Lloyd-Jones, Lord Hamblen, Lord Leggatt and Lord Burrows – agreed.    The appeal concerned the relationship of the 1980 Hague Convention (the "1980 HC") to asylum law. The parties are the parents of an eight-year-old girl ("G"). G was born in South Africa, where she has been habitually resident all her life. In March 2020, G's mother, the appellant, wrongfully removed G from South Africa to England, in breach of G's father's rights of custody. G's father, the respondent, applied for an order under the 1980 HC for G's return to South Africa. The mother opposed his application on the ground, in particular, that there is a grave risk that return would expose G to physical or psychological harm or otherwise place her in an intolerable situation. The mother identifies as lesbian. She alleged that after separating from the respondent and coming out, her family subjected her to death threats and violence. On her arrival in England she applied for asylum on the basis of her fear of persecution by her family. She listed G as a dependant on her asylum application. G has not made an asylum application in her own right. A core principle of asylum law is that refugees are protected from being returned to the country in which they have a well-founded fear of persecution. The unlawful return of a refugee is known as "refoulement". The central question in this appeal is whether G is protected from refoulement as a result of being listed as a dependant on her mother's asylum application, such that she cannot be returned to South Africa pursuant to the 1980 HC proceedings until the asylum application is determined. If so, this raises the further question of how the 1980 HC proceedings and the asylum claim can be coordinated. An asylum claim can take months, if not years, to resolve, and the 1980 HC requires the prompt determination of an application for the return of an abducted child (which means, in this context, within six weeks). There is therefore a real risk that by the time the asylum claim has been determined, the relationship between the child and the left-behind parent will be harmed beyond repair. There is also a real risk in cases of this type that the taking parent will seek to achieve that objective by making a sham or tactical asylum claim. The Court of Appeal, in G v G [2020] EWCA Civ 1185, held that a child listed as a dependant on an asylum application has no protection from refoulement, but that if G had made an application in her own right, she could not be returned prior to the determination of her application. The Court of Appeal concluded that there was no bar to ordering G's return to South Africa. The mother appealed against that decision. UK asylum law is derived from a patchwork of international, EU and domestic law sources [77], which provide that an individual who is a refugee (because, in short, they have a well-founded fear of persecution in their country of nationality) has a right not to be refouled, subject to limited exceptions. That right does not depend on whether they have been granted status as a refugee [79]-[81]. An individual who can be understood to be seeking refugee status is therefore protected from refoulement. An asylum application which lists a child as a dependant is also an asylum claim by that child if objectively it can be understood as such. That will normally be the case: the adult's grounds for fearing persecution are likely to apply to their child, and an omission by the child to make an application in their own right cannot be determinative if it is the parent who would anyway have to make the application on the child's behalf [117]-[121]. The protection from refoulement of a child who can objectively be understood to be an applicant for asylum applies during the determination of their application by the Home Secretary. The effect of implementing a return order in 1980 HC proceedings in respect of a child asylum applicant is to return the child to the country from which they seek refuge. While the High Court can decide whether to make a return order, the return order cannot be implemented until the Home Secretary has determined the asylum claim [124]-[134]. The mother's first ground of appeal therefore succeeds. There is no bar to the High Court deciding the 1980 HC application prior to the determination of the asylum claim, however, and it should be slow to stay 1980 HC proceedings. A reasoned judgment on whether the child should be returned, on the basis of evidence which will often overlap with the asylum claim and which has been tested by an adversarial process, may assist the prompt determination of the asylum claim by the Home Secretary. The High Court has power to set aside its decision if the asylum claim is successful. The mother's second and third grounds of appeal therefore fail [154]-[162]. An asylum claim is not "determined" until the conclusion of any appeal [135]-[140]. Asylum law distinguishes between asylum seekers who have the right to appeal from within the UK, and those who must appeal from outside the UK. The implementation of a return order in 1980 HC proceedings in respect of a child with a pending in-country appeal would render the appeal process ineffective. A pending in-country appeal must therefore bar the implementation of a return order. Because the time taken by the in-country appeal process is likely to have a devastating impact on 1980 HC proceedings, urgent consideration should be given to a legislative solution [141]-[153].  All those involved in the 1980 HC proceedings, including the Home Secretary in determining any related application for asylum, must act promptly if the UK is to fulfil its obligations under the 1980 HC [68]-[72]. Various steps are proposed to coordinate related 1980 HC and asylum proceedings with a view to their prompt determination. These include requesting that the Home Secretary intervene in 1980 HC proceedings; consideration by the High Court of whether to make documents in those proceedings available to the Home Secretary, and whether to order disclosure of the documents in the asylum claim to the 1980 HC proceedings; joining the child as a party with independent representation; and assigning any asylum appeal to a High Court Family Division judge [163]-[177]. The Home Secretary has also proposed an expedited process for determining asylum claims with concurrent 1980 HC proceedings, which is a welcome initiative [6]. For the full judgment, click here. 21/3/21
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Court of Appeal hears journalist's family court file request

Court of Appeal hears journalist's family court file request | Children In Law | Scoop.it
Press Gazette has been reporting on British journalism without fear or favour since 1965. Our mission is to provide a news and information service which helps the UK journalism.
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Sentencing paedophiles in non-recent child abuse cases: are courts too lenient?

Sentencing paedophiles in non-recent child abuse cases: are courts too lenient? | Children In Law | Scoop.it
Type the phrase 'lenient sentences for child sexual offences' into a search engine, and the results for the UK alone are astounding.
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Family Law Week: A (Child Abduction Article 13b) [2021] EWCA Civ 328

Home > Judgments A (Child Abduction Article 13b) [2021] EWCA Civ 328 Successful appeal from an order for the summary return of a child to the USA in light of new evidence ___ The case concerned J, a child, who was 3 years old at the time of the proceedings. J's mother was English and J's father was American. They married, and in 2016 the mother moved to live in Virginia, where J was born in 2017. The mother maintained that the relationship was characterised by significant domestic violence, causing the mother to suffer from depression and anxiety. The father denied all of the allegations. On 31 December 2019, the mother travelled with J to England, the father having agreed to them coming here until April 2020. On 21 February 2020, the mother applied for a domestic violence injunction against the father in the Family Court. The father subsequently issued proceedings for J's summary return under the 1980 Hague Convention on the Civil Aspects of International Child Abduction ("the Convention"). The mother opposed the application on the basis of Article 13(b). It was argued on her behalf that the child would be subject to grave psychological and/or physical harm if forced to return to the USA because of the risks of (i) domestic violence and (ii) the mother's mental health deteriorating, thereby affecting her ability to care for the child.  On 9 December 2020, the Judge ordered that J should be returned to the USA within 14 days of the mother being notified by the father's solicitors that the court in Virginia had approved a "Consent Child Custody Order" under which the parents would have joint legal custody of J, with the mother having temporary primary care. The father provided an extensive series of undertakings to the English court, for inclusion in the "Consent Child Custody Order." Whilst the Judge accepted that the mother's allegations were of a gravity that was capable of engaging Article 13(b), she had not established that the exception applied. In particular, he did  not accept that a return to the USA would destabilise her parenting to a point where J's situation would become intolerable. The mother made an application to appeal the decision, arguing that having found that her allegations were of a nature to engage Article 13(b), the Judge was wrong to grant the father's application and failed to take account of: (i) The profound effect on the mother of the father's coercive and controlling behaviour; (ii) The mother's isolation in the USA compared to England, and the effect that this would have on her mental health; and (iii) Dr Ratnam's evidence about what would be necessary to prevent a deterioration in the mother's mental health if she returned to the USA. Further, the mother issued an application asking the court to admit further evidence in the form of (i) expert evidence from an American lawyer about the enforceability of undertakings and availability of legal aid; and (ii) updating reports from her GP and her IDVA. The former was refused as no report had been provided. In respect of the latter, since the proceedings had completed, the mother's mental health had deteriorated significantly, to such an extent that the mother and J had to move in with the maternal family because it was no safe for her to parent J alone. The Court of Appeal admitted the evidence from the mother's GP and IDVA, as it was capable of influencing the result of the appeal. The Court of Appeal held that the first instance Judge had "meticulously" and "methodically" [31] reviewed all the evidence, and his decision to return J to the USA which one he was entitled to reach on the evidence before him. However, based on the further evidence concerning the mother's mental health and family support, the Court of Appeal did not think that the Judge's order could stand. As such, the court allowed the appeal, set aside the return order and remitted the matter to the first instance Judge. Case summary by Bianca Jackson, Barrister, Coram Chambers For full case summary, please see BAILII
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Family Law Week: Children: Public Law Update (March 2021)

Family Law Week: Children: Public Law Update (March 2021) | Children In Law | Scoop.it
Home > Articles Children: Public Law Update (March 2021) John Tughan QC of 4PB considers the latest judgments that Public law child lawyers need to know about.           John Tughan QC of 4PB In this update I will consider the following recent cases and issues: • The inter-relationship of criminal findings with facts found in care proceedings • When to seek clarification of a judgment (and when not to do so) • The power to control documentation within the proceedings and afterwards • The refusal of placement orders • The competence of a child to give instructions, the interplay with his autism, passage of time between assessments of competence and the difference between public and private law issues • When findings of fact are open to a court • Recusal The inter-relationship of criminal findings with facts found in care proceedings The case of Re T and J [2020] EWCA Civ 1344 raised issues relating to the inter-relationship of facts found in the care proceedings with those found in criminal proceedings.  The Court of Appeal heard the Mother's appeal against facts found in the family court.  She had been found to have inflicted some of the bruising, bite marks and lacerations to an 18-month-old child and was found to be in the pool of perpetrators for some of those injuries.  The injuries occurred shortly after she had commenced a new relationship with K.  In the care proceedings K refused to give evidence.  The judge found that K had been out of the home at the relevant time and that the Mother had inflicted the injuries.  At the criminal trial of K the Mother changed her account to say that K was in the home.  K was convicted of causing grievous bodily harm and sexual assault while the mother was acquitted of GBH but convicted of cruelty.  The mother then appealed the findings within the care proceedings. Part of her grounds of appeal were that the care judge had failed to draw adverse inferences from K's refusal to give evidence in the care proceedings. The Court of Appeal (Baker LJ giving the lead judgment) held that: "neither the fact that a jury has reached a verdict on criminal charges that is inconsistent with earlier findings in care proceedings nor the simple fact (if it be true) that the evidence heard by the jury was different from, or more comprehensive than, that adduced before the judge in the family proceedings is sufficient by itself to justify the conclusion that the findings in the family proceedings were wrong so as to require an appellate court to overturn the findings. It may, however, be sufficient to justify a reopening of all or part of the fact-finding hearing." On the issue of the failure to draw an adverse inference from K's refusal to give evidence, the Court set out the law and concluded that the judge was not obliged as a matter of law to draw such an inference.  He declined to infer that K was the perpetrator but did take into account the refusal to give evidence in his overall analysis.  The judge could not be criticised for his approach. The Court repeated that the Children Act 1989 Pt XII s.98(2) only gave protection against the admissibility of statements in criminal proceedings and not against their use in a police enquiry into the commission of an offence. The case had involved two applications to re-open the fact-finding process, both refused.  During the appeal the local authority indicated that it would no longer oppose a further application to re-open the facts. When to seek clarification of a judgment (and when not to do so) The case of Re O (A Child) (Judgment: Adequacy of Reasons) [2021] EWCA Civ 149 was a case in which the Court of Appeal overturned findings of sexual abuse.  There is an interesting analysis of the deficits of the fact-finding judgment, which included the conclusion that the judge had compartmentalised the evidence.  The Court went on to consider when clarification of a judgment should be sought.  Baker LJ set out the earlier relevant decisions and the current practice direction and held that: "...where the omissions [from the judgment] are on a scale that makes it impossible to discern the basis for the judge's decision, or where, in addition to omissions, the analysis in the judgment is perceived as being deficient in other respects, it will not be appropriate to seek clarification but instead to apply for permission to appeal." Peter Jackson LJ held that: "It is of course the responsibility of the trial judge to give sufficient reasons. But all judgments are capable of improvement and where there has been what the Practice Direction refers to as 'a material omission from a judgment' the court is required to 'provide additions', either on its own initiative or on request. That will be particularly suitable where an issue has escaped attention or where a part of the reasoning is not fully clear or needs amplification. Where the line is to be drawn will depend on the circumstances, but there will come a point where what would be required would not be additions but foundations. In those circumstances, the difficulties in returning to the trial judge were explained by Wall LJ in Re M-W (Care Proceedings: Expert Evidence) [2010] EWCA Civ 12, when, speaking of that case, he said: '47. The difficulties about the Emery Reimbold solution are, in my judgment, legion. I put on one side the fact that this was a reserved judgment. What strikes me with greater force – if my analysis is correct – is that the judge has made up his mind without properly considering the evidence of Dr. T, Messrs M and F and the guardian. Were we thus to invite him to reconsider, he would be bound to reject their evidence. To put the matter another way, the conclusion which he has reached would render impossible a proper judicial discussion of that evidence. Equally, were the judge to change his view and find the threshold satisfied, neither the mother nor the father would have any confidence in the judge's final conclusion.'" The power to control documentation within the proceedings and afterwards In Re R (Children: Control of Court Documents) [2021] EWCA Civ 162 the Court of Appeal considered the power of the court to control documents.  The issue arose when an intervenor ("R") appealed against a decision that he was not entitled to physical copies of the judgment or the written submissions. As to the power to withhold documents, Peter Jackson LJ (giving the lead judgment) held that there was no doubt that there was such a power and went on to conclude that: "When faced with an application to withhold documents or information, the court is required to uphold the rights protected by Articles 6 and 8, and possibly Article 3. In family proceedings, the right to respect for private life will almost inevitably be engaged, but the transmission and preservation of private information in documents is a necessary part of any system of justice. There will however be rare cases where the possession of documents may amount to more than an interference with privacy. In this case the Judge considered that the use of descriptions of the children's abuse for the sexual gratification of the abuser and others would amount to subjecting them to degrading treatment within the meaning of Article 3.   Whether that is so in a given case will depend on the circumstances: Kudla v Poland (2000) 35 EHRR 198 at 91-92.  But the fact that there are cases in which a breach of Article 3 comes into question makes it self-evident that the court is entitled and may be obliged to control the possession and distribution of documentation. The existence of that power is reflected in the Rules.... ....In plain language, R has everything he needs to understand the Judge's decision. He should not be allowed to prolong his abuse of these children by being given possession of graphic descriptions of what he has done to them, and he is not to be trusted not to pass the material on to others like him." The refusal of placement orders In T & R (Children) (Refusal of Placement Order) [2021] EWCA Civ 71 the Court of Appeal determined an appeal by a local authority and guardian against the refusal of a placement order.  The family were members of the traveller community.  Following findings of fact the local authority's care plan was for long term foster care for the four older children and adoption for the two younger children.  The judge made care orders and approved the care plans for the elder children.  He refused to endorse the plan of adoption for the younger two children, dismissed the placement order applications, invited the local authority to reconsider the plans and made interim care orders. The judge summarised the views of the local authority social worker as: "the need for permanence was the ultimate goal and it came above the need to maintain the children's culture and heritage and with that, inevitably, the risk of contact never taking place were there to be an adoption." The consensus of all the professionals was that T and R should be placed for adoption.  The Court of Appeal (Baker LJ giving the lead judgment) decided that the Judge was entitled to conclude as he did.  Following the decision in Re B (A Child (Post Adoption Contact) [2019] EWCA Civ 29 which re-stated the law on post-adoption contact orders and confirmed that it would be an extremely unusual case in which such orders were justified, the judge was entitled to conclude that post-adoption contact might not take place and there was clearly a risk that post-adoption sibling contact might not take place.  The cultural heritage and sense of belonging that these children had was a real and legitimate factor and the absence of post-adoption parental contact was also a risk.  Given the evidence, it was a risk that the judge was entitled to conclude should not take place. In refusing to make placement orders in respect of two younger children (aged three and two), the judge was entitled to depart from the professional witnesses and guardian. The competence of a child to give instructions Z (Interim Care Order) [2020] EWCA Civ 1755 is an interesting case on issues surrounding the interim removal of children from the care of their parents.  This was a private case involving allegations of alienation.  The 15-year-old boy with autism was assessed in July as not having the capacity to instruct a solicitor.  That assessment was made within the private proceedings.  In November the issue before the court was the removal of the boy from his Father's care into a foster placement pending his move to his Mother's care.  The interim care order was granted with a care plan of removal. The Court of Appeal (Baker LJ in the lead) allowed the appeal for a number of different reasons including procedural irregularity and the fact that the Father's evidence was not heard at the interim hearing.  However, Baker LJ also considered the assessment of competence of a young person to give evidence, noting that the rules were "far from straightforward".   Proceedings brought under s8 were distinct from those brought under s31 Children Act 1989.  The latter are "specified proceedings", the former are not.  Different rules apply to each, with considerable overlap.   "Attitudes to the direct participation of children in proceedings have evolved in recent [in Re W (A Child) [2016] EWCA Civ 1051] Black LJ observed (paragraph 27): 'The question of whether a child is able, having regard to his or her understanding, to instruct a solicitor must be approached having in mind this acknowledgment of the autonomy of children and of the fact that it can at times be in their interests to play some direct part in the litigation about them. What is sufficient understanding in any given case will depend upon all the facts.'  It is also important to note the observation of this Court in Re S (A Minor) (Independent Representation) [1993] 2 FLR 437 that 'understanding is not an absolute. It has to be assessed relatively to the issues in the proceedings'." Baker LJ emphasised the burden that was incumbent on a court when dealing with a child with disabilities.  It was wrong of the court to have relied upon the earlier assessment of competence: "...Four months had passed since that assessment and, at Z's age, the passage of such a period of time may be significant.  Secondly, the distinction in the rules between specified and non-specified proceedings obliges the court to ensure that any assessment of competence in public law proceedings focuses on the issues arising in those proceedings which involve the statutory intrusion into family life and therefore inevitably an interference with Article 8 rights. Thirdly, on the specific facts of this case, the primary issues in the two sets of proceedings were different. The primary issue in the private law proceedings was whether Z should have contact with his mother. The primary issue in the public law proceedings at the interim stage was whether he should be removed from his father. If, as this Court observed in Re S, the level of understanding has to be assessed relatively to the issue in the proceedings, Z's understanding of the issues surrounding the proposal that he be removed from the family home may be materially different to his understanding of the issues relating to contact with his mother." When findings of fact are open to a court The case of X, T, A, E and S (Children) [2020] EWCA Civ 1680 involved a complicated factual background and an unusual decision for the court hearing fact-finding issues, namely whether T's injuries were inflicted by another person or self-inflicted. Baker LJ (giving the lead judgment and allowing the appeal to a limited extent) had no difficulty in concluding that the judge was entitled to determine that some of the injuries were inflicted and that the other children were exposed to emotional harm as a result.  The difficulty arose in the decision as to the reasons for T's self-harming in relation to some of the other injuries.  The judge had concluded that it was as a result of emotional harm or neglect.  That conclusion was to go too far.  Such a conclusion was not sought, was not part of cross-examination by the local authority and was properly a question for the welfare hearing. Recusal Re W (Children: Reopening/Recusal) [2020] EWCA Civ 1685 was a private law case dealing with issues of recusal, the appearance of bias and the correct procedure to be employed on such issues.  In that case the judge was wrong to have recused herself. 24/03/2021
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Family Law Week: Family Law Week Weekly Podcast Season 5, Episode 3

Family Law Week: Family Law Week Weekly Podcast Season 5, Episode 3 | Children In Law | Scoop.it
Home > General Podcasts Family Law Week Weekly Podcast Season 5, Episode 3 Rachel Cooper is joined by Rachael Kelsey of SKO solicitors               Rachel Cooper is joined in this episode by Rachael Kelsey of SKO solicitors, also known as 'the doyenne of Scots family law' (Chambers and Partners and The Legal 500).    Rachael Kelsey is the only 'Hall of Fame' family lawyer in Scotland in the Legal 500 (2021 Edition) and the only Scottish lawyer in the Spears 500 Family Lawyers Guide (2021). She is President of the European Chapter of the International Academy of Family Lawyers (IAFL) and accredited as a Specialist in Family Law and as a Family Mediator by the Law Society of Scotland. In 2019, Rachael was re-appointed by the Lord President to the Family Law Committee of the Scottish Civil Justice Council. She is a FLAGS (Family Law Arbitration Group Scotland) Arbitrator and trainer, is the only Scottish Arbitrator on the IFLAS (International Family Law Arbitration Scheme) panel and is on the committee of the Scottish Branch of CIArb (Chartered Institute of Arbitrators). Rachael is the Scottish correspondent for International Family Law.   Rachael and Rachel discuss some of the most interesting cases of Rachael's career, including Fourman v Fourman (1998) FamLR 98; Willson v Willson [2008] ScotCS CSOH 161 and the case of Villiers v Villers. They also discuss Rachael's career generally and the various different strands of law and practice that have (and continue to) spark her interest.  Click here to listen to the podcast The podcast can be downloaded via Libsyn Also available on Stitcher
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The trappings of glamour and wealth: CA v DR (Schedule 1 Children Act 1989: Pension Claim) [2021] EWFC 21

The trappings of glamour and wealth: CA v DR (Schedule 1 Children Act 1989: Pension Claim) [2021] EWFC 21 | Children In Law | Scoop.it
Background CA ("M") had made an application for financial provision for a child, "E", aged 4, pursuant to Schedule 1 and section 15 of the Children Act 1989. M was in a relationship with E's father, DR ("F"), from 2012, and they shared a home together from 2014 until their relationship ended in April 2019. M issued these proceedings in August 2019. F was 49 and had two children from a previous marriage, aged 15 and 10. He had generated considerable wealth through his entrepreneurial activities when he was younger, and although he had a number of commercial activities, he was free to organise his life as he wished. In addition to espousing various philanthropic causes, he had a collection of motor racing vehicles worth tens of millions of pounds. His wealth, put at c. £190m, and the income which it generated, enabled him to run the 'millionaire's defence'. Although F had in fact provided a significant amount of disclosure during these proceedings, he accepted that he could afford to meet any reasonable order the court made. M was 40. She was a former British athlete. She had never been married and E was her only child. She had not worked since she moved in with F, and since E's birth, she had been a full-time carer for E. M had few assets of her own and little by way of savings. She was, in reality, entirely dependant upon F to provide financially for her and E for the foreseeable future (an obligation which F accepted, in principle). The parties' positions M sought a package of financial provision which included: A housing fund of £2m plus purchase costs; A lump sum of £380,000 to cover various expenses (including the purchase of a car); and Periodical payments of £238,000 pa, to include provision for her retirement in the form of a private pension. F offered: Up to £1m (inclusive) for housing; A lump sum of £60,000 for incidental expenses; Periodical payments for E (to include a carer's allowance) at the rate of £96,000 pa; and Provision for a car by way of lease payments (on the basis that M would change her car every four years). Standard of living The home the parties shared while they lived together was a Grade-II listed property in Cheshire's 'Golden Triangle', which sat in one and a half acres of land. It had a value of some £4.36m and at the time of the hearing was the subject of a major building project costing in the region of £2.5m. As a result, F and his elder two children were living in a rented property at a cost of £12,500 pcm. Upon separation, M and E had moved into separate accommodation on the site of the main property, which had bedrooms and kitchen facilities, but was not ideal for them. The parties agreed that M and E should move back to Kent, where M had family and friends. It was also agreed that E should be privately educated, and F agreed to meet her school fees. M said there were few, if any, financial constraints upon the parties' spending and the lifestyle choices they made. She pointed to international travel by private jet, with holidays in top-end villas or the most expensive hotel suites, and to the fact that F's chosen means of transport was his helicopter (which he used to get around the UK and also to go abroad for his motor racing commitments). M's antenatal care was provided by the Portland Hospital in London. She flew by helicopter to and from her antenatal appointments, and the parties stayed in a very expensive apartment suite in London at a cost of over £5,000 a night for a month before E's birth in order to be near the hospital. M described eating out at the best restaurants, and produced receipts for the purchase of designer clothing for herself and for E. E's first ski suit cost nearly £1,000, and, despite her young age, E already had tuition in sign language, French, swimming, ballet, singing and piano. Roberts J observed that F had the financial resources to devote much of his time to his passion for racing and motorsport, and that that lifestyle 'brings with it many of the trappings of glamour and wealth' [19]. She noted that F found it easier to fly himself to race venues in his private helicopter, and that he had employees to ensure his vehicles were transported to wherever they needed to be at any given time. He was accommodated at races in a 'recreational vehicle' which was fully equipped with everything he could possibly need, and had cost between €800,000-900,000. He also had a personal assistant who looked after all the arrangements for his travel and accommodation. He accepted that the demands of his business life meant that travel by private jet was the most convenient form of transport when he was not travelling in his helicopter. His elder two children had been a part of this lifestyle and shared F's home for half (possibly more) of their day-to-day existence. However, in many respects F was 'a man of contrasts albeit one who enjoys the significant privilege of choice in terms of the life he leads' [21]. F owned a very modest holiday home in Wales, which had been his grandmother's home, and he and his elder children frequently drove to the property at the weekends to enjoy time there. F did not spend much on designer clothes and said his appearance at the court hearing was the first occasion on which he had put on a shirt with a collar for over two years. He described his elder children's life with him as being 'grounded and ordinary'. He regularly cooked for them, and if they ate out, it was at local Thai and Indian restaurants. The children had not been on a long-haul holiday with F for over six years. Roberts J accepted that F was 'not a man who would choose to spend time in the shops of Bond Street or to eat regularly in Michelin-starred restaurants' [21]. Roberts J found M to be an 'essentially truthful witness', but felt that at times 'there was a degree of overlay in the mother's attempts to impress upon me quite her extraordinary her life with the father had been' [28]. F was found to be 'a perfectly straightforward and candid witness' [29]. Housing It was common ground that any property purchased by F for the occupation of M and E would remain his property. The parties agreed that the property would remain available to M and E as a home until E completed her first degree at university, if that was the path she wished to follow, and Roberts J decided that the sale of the property would be postponed until three months after E's graduation. Roberts J pointed out that F was 'not alienating capital', but rather was 'making a financial investment' [32]. She noted that while affordability was not an issue in this case, that 'does not mean that he should be required to sign a blank cheque in order to meet E's ongoing needs' [32]. In February 2020, M had produced particulars of five properties in Kent, ranging in price from £1.2m to £2m, and by the time of this hearing she had produced the particulars of three more properties. M's properties were bench-marked against a property in Cheshire which she had wanted to purchase after the parties' separation, which had been on the market for £2.15m. At that point in time, M had asked F to buy the property for her and E outright, i.e. she sought outright ownership of the legal title. F said he did not at any stage give his consent to that arrangement, but it was clear from the evidence that M had instructed a conveyancing solicitor and it appeared that F had provided £50,000 to secure the property. The transaction did not proceed in the end, but F's apparent acceptance that that property was a suitable home for M and E had 'no doubt created a certain level of expectation in this mother's mind' [35]. F had produced particulars of three further properties, ranging in price from £900,000 to £1m, although by the end of the hearing he accepted that the appropriate figure was somewhere between £1m-£1.2m. Roberts J concluded that F's proposal was too low, and M's too ambitious. She considered that a property like one of the properties which M had provided particulars for, available for £1.6m, 'meets most, if not all, of the requirements which the parties have between them identified' [39]. That property was a new-build, had 5/6 bedrooms, had a triple garage, was set in landscaped gardens, and had a 10 year new home warranty. Roberts J observed that it was an attractive home which had the outside space E needed, and she had 'the distinct impression that the mother would be happy to live there' [39]. Roberts J therefore decided that a housing fund of £1.6m was the right provision, and that F should meet the costs of SDLT and the additional costs of purchase. Roberts J also made provision for the substitution of a replacement property at some point in the future, should M's circumstances change. The identification and choice of the new property were left to M by Roberts J, although she stated that F must be kept informed in relation to the property search and had every right to object if there were genuine issues with the property which were likely to persuade the court that M's choice represented a poor investment in financial terms. It would be F's responsibility to ensure that the structure of the property was maintained in good repair, but M's responsibility to pay for the day-to-day maintenance and internal decoration of the property. Additional lump sum M sought £150,000 for the costs of furnishing and equipping her new home. Roberts J did not consider that M would need as much as that, but concluded that given the size of the property M would be purchasing, she would certainly need a substantial sum. Roberts J awarded M £100,000. M also sought £10,000 for the costs of purchasing Montessori equipment for E. Roberts J decided that it was more appropriate to reflect this expense in E's ongoing income needs, and declined to make separate capital provision for those items. In respect of a car, M wanted a Range Rover purchased for her at a cost of £110,000, but F suggested something more modest and maintained that the most cost-efficient way of providing M with a car was by way of a lease. Roberts J considered it entirely reasonable that F should be required to meet the leasing costs of the sort of vehicle which M sought, up to a value of £110,000 (index-linked every four years), and commented that F himself owned a number of Range Rovers. Although Roberts J thought M ought to be able to procure the necessary leasing contract in her sole name, if it turned out that she could not, then it would be F's obligation to take on the lease, although the choice and specification of the vehicle would be M's. F would not be required to pay a further lump sum to extract the car M had the use of at the end of E's dependency from the financial arrangement. F was also ordered to pay £9,000 for back surgery which M needed. Roberts J commented that '[i]n the circumstances through which we are living at the present time, I do not regard the father's suggestion of joining the NHS waiting lists to be reasonable' [54]. Maintenance M's budget for herself of £238,000, excluding school fees, was broken down as to £42,664 for E's needs, and £195,323 as a carer's allowance. Of this, £56,000 was claimed in respect of holidays and weekend breaks which M wished to take each year with E, in addition to £34,000 being claimed for M's personal expenses. Roberts J observed that '[i]n a case where the resources available to the parties are of this magnitude, it would not be appropriate for me to take a blue pencil to each category of expenses claimed by the mother' [57]. Nonetheless, Roberts J could 'see that there are savings to be made' [57]. Roberts J concluded that a budget of £150,000 pa (£12,500 pcm) in mortgage-free accommodation 'will provide the mother and E with a good standard of living without penalising the father for some of her more excessive requirements', in addition to which F would meet the costs of a car and E's school fees and reasonable extras (although any individual extras in excess of £1,000 per term had to be agreed in advance) [61]. The periodical payments would be index-linked until the end of E's tertiary education, to completion of a first degree, including a gap year. Once E was at university, F would pay two-thirds of the periodical payments to M, and one-third directly to E. F could easily meet these costs from his gross income of £3.8m. Roberts J considered that his package of financial provision 'will ensure that E enjoys a standard of living which reflects his own lifestyle choices and the manner in which he has chosen to live with his other two children whilst acknowledging, as I must, that these are not matrimonial claims but Schedule 1 claims advanced on behalf of a child whose parents chose not to undertake the commitment of marriage' [61]. Pension The main challenge F made to M's budget was the sum of £40,000 odd pa which M wished to apply towards building up a private pension over most of the next 20 years or so of E's dependency. F maintained that such provision was outside the jurisdiction of a Schedule 1 claim, and in any event was unreasonable. Roberts J declined to allow M's claim for an annual sum in excess of £40,000 to allow her to build up a pension. She stated that the claim 'amounts in effect to an entitlement to build up personal savings over many years of E's dependency to fund ongoing income needs at a time when the child's claims have come to an end as a matter of law' [65]. M suggested that the time had come for the court to revisit the well-honed principles which underpinned the Court of Appeal's decision in Re P (a child) [2003] EWCA Civ 837, in which Thorpe LJ had said that '[t]here can be no slack to enable the recipient to fund a pension or an endowment policy or otherwise to put money away for a rainy day' (at [49] of that judgment). M also submitted that Roberts J was not bound by Re P because, strictly speaking, Thorpe LJ's remarks were obiter. Additionally, M said that there were public policy reasons why the burden on the state should be reduced by requiring adults to make provision for their retirement. She argued that, without such provision, she would be exposed to the prospect of financial destitution, or, alternatively, would be obliged to abandon her aspiration to devote all her time and energy over the next 14 years towards E's nurture and care in the event that she had to seek employment to make provision for her own future, which would not be to E's benefit. Roberts J concluded that this submission ignored the reality of the future, and the evidence which M had given. M acknowledged that she would inevitably need to look to her own future when E was older and more independent, and said that she wanted to be a good role model to E and had no intention of 'sitting back and doing nothing'. Roberts J accepted that M had not worked for several years and might need some form of retraining in the future, but considered that the support with which she would be provided by F would 'provide her with a secure platform from which to think about, and plan for, her own future' [68]. Furthermore, F had agreed that he would not seek to reduce the level of support for E in the event that M started to earn an income of her own. Roberts J also took the view that she was bound by Re P, and that by M's policy arguments, M sought to conflate, or more closely align, the law in relation to Schedule 1 claims with that applicable in matrimonial claims brought under the Matrimonial Causes Act 1973. The extension of the law on Schedule 1 which M invited Roberts J to endorse 'requires either the intervention of Parliament or a further decision of the higher appellate courts' [70]. Costs F had been funding M's costs. He had already paid in excess of £143,000, and had offered a further £85,000 to meet the outstanding balance which M owed to her solicitors. However, that offer would leave her still owing £12,040. F complained about the way in which M had run up costs and highlighted the costs incurred in relation to the pension issue. Roberts J took the view that £12,000 odd 'is not a significant sum in terms of this father's resources, but it is a contractual debt for which the mother is liable', and that, as such, 'it represents a financial need which she will otherwise carry into the new circumstances of her independent life with E' [72]. Roberts J wanted to see M make that transition on a debt-free basis, and said that while she hoped that F would agree to clear M's costs in full, if he would not, then F would be ordered to pay any shortfall. Henrietta Boyle, Barrister at 1 Hare Court
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PQ v RS & Anor [2021] EWHC 572 (Fam)

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The Irish father sought the return of two five-year-old children to the Republic of Ireland under the Hague Convention. The mother, a British national currently living in England after a clandestine departure, opposed the application, while applying under the Children Act for leave to remove to Ireland in respect of her third child, in case a return order was made in respect of the other children. The father of the third child applied for a residence order and a prohibited steps order. Peel J made a return order for the first and second children upon their father undertaking, among other things, to pay weekly child maintenance and to not support any prosecution of the mother. Peel J also decided that the mother should be given permission to relocate with the third child to Ireland. Among other factors, the father of the third child had shown himself capable of violence to the mother and her children, and so the court could not be confident about entrusting the care of the third child to him. Judgment, published: 22/03/2021 Topics Share
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Nuffield Council on Bioethics launch call for evidence on the care and treatment of children and adolescents in relation to their gender identity

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This call for evidence is an open call for views on some of the issues we want to explore in more detail, including: the nature of gender dysphoria and how this affects approaches to care and treatment; the social context within which gender dysphoria exists; whether there is adequate evidence on the safety and effectiveness of puberty blockers and cross-sex hormones to support treatment; current approaches to care and treatment, including the purpose of puberty blockers, the gender affirmative approach, and social transition; how to consider the benefits and harms of treatment and non-treatment in decision-making; and the ability of children and adolescents to consent to medical interventions for gender dysphoria. The aim of our project is to contribute information and insight on these issues to inform and support practitioners and policy-makers, to contribute to the broader public debate, and, ultimately, to improve the well-being of gender diverse and gender incongruent children and adolescents by helping ensure they receive ethical, appropriate, and high-quality care. We would like to hear from as many people and organisations as possible who have an interest in the care and treatment of children and adolescents in relation to their gender identity. In particular, we would like to hear from anyone with personal experience of using gender identity services or supporting someone to use those services. Anyone is welcome to respond to this call for evidence, which is open until Friday 14 May. The responses to this call for evidence will form an important step in our evidence gathering and play a significant role in influencing this project and its final conclusions. We will also be undertaking a range of other evidence-gathering activities to ensure that we can hear from a diverse range of people. If you have any questions or would like to be involved in any further opportunities to contribute or alert us to people/organisations that may be interested in this work, please contact gender@nuffieldbioethics.org. Contact Sophia Griffiths Acting Communications Manager Nuffield Council on Bioethics +44 (0) 20 7681 9622 sgriffiths@nuffieldbioethics.org
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