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Mother wins appeal over lack of due process when she applied for leave to oppose adoption order

Mother wins appeal over lack of due process when she applied for leave to oppose adoption order | Children In Law | Scoop.it
A mother who wished to contest an adoption order was not afforded due process by the Family Court, the Court of Appeal has found.
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Family Law Week: A County Council v M & H & T [2021] EWFC 35

Home > Judgments A County Council v M & H & T [2021] EWFC 35 A local authority’s application not to assess a grandmother as a carer was granted and the grandmother’s application for a Special Guardianship Order or a Child Arrangements Order was dismissed. ___ Due to their young age and an unplanned pregnancy discovered late in the day (amongst other matters), H's parents approached the local authority before the birth of H to arrange an adoption. H was placed with 'foster to adopt' parents.  On learning of this, the paternal grandmother told the social worker she wished to care for H. The parents objected on grounds which included that the grandmother was a single parent of limited means who had suffered episodes of depression. The wider paternal family did not support the grandmother's application. The grandmother then applied for a Special Guardianship Order or a Child Arrangements Order in respect to H, a seven-month-old child. The local authority applied under the inherent jurisdiction for permission not to assess the grandmother as a potential carer. The matter came before Mrs Justice Judd for determination on submissions. The court considered the local authority's duty, under the Adoption and Children Act 2002, to consider the child's wider family as potential carers. Account was also taken of the Adoption Agencies Regulations 2005 and relevant case law. The judge assessed the Children Act 1989, section 10 in regard to applications for leave to apply for a section 8 order. The judge noted: parents do not have a right to have their child adopted; family members do not have a right to an assessment nor, without leave, a right to apply for a child arrangements order. She found that to grant the grandmother's application "would risk disruption to such an extent that H would be harmed" and would "lead to delay to a permanent outcome for H with, in my judgment, very little likelihood of the grandmother's application being successful, even though it would be an alternative to adoption." [50] Due to a careful analysis of H's situation by the Guardian, the judge had sufficient information to determine the grandmother's application without the need for a full enquiry or assessment. The local authority's application was granted and that of the grandmother was dismissed. Case summary by Dr Sara Hunton, Barrister, Field Court Chambers For full case summary, please see BAILII
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Family Law Week: CHF & ORS, R (On the Application Of) v Newick Church of England Primary School & Anor [2021] EWCA Civ 613

Home > Judgments CHF & ORS, R (On the Application Of) v Newick Church of England Primary School & Anor [2021] EWCA Civ 613 This was an appeal in respect of an order protecting the identification of the Appellants’ children in any reporting of judicial review proceedings. The Respondents were their children’s primary school and the Council responsible for it. ___ In the summer of 2019 serious and sensitive allegations were made about the behaviour of one of the Appellants' children towards other children in the school. A dispute arose about the way in which the allegations were handled. The Appellants applied for judicial review. In their claim form they sought anonymity for the children and themselves. The Appellants and the children share a distinctive surname. Linden J granted permission to the Appellants to seek judicial review on one ground and made the following order in respect of anonymity: 10. Pursuant to CPR rule 39.2(4) I therefore direct there shall not be disclosed in any report of the proceedings the name or address of the Claimants' children or any other children referred to in the evidence or any details leading to their identification. Such children, if referred to, shall only be referred to by letter of the alphabet. 11. Pursuant to CPR rule 5.4C a person who is not a party to the proceedings may obtain a copy of a statement of case, judgment or order from the court records only if the statement of case, judgment or order has been anonymised such that: (a) the Claimant's children and any other children are referred to in those documents only by letter of the alphabet; and (b) any references to the names of such children have been deleted from those documents. 12. Any person affected by this Order may apply on notice to all parties to have this Order set aside or varied." (emphasis added by the Court of Appeal) The Appellants then renewed their substantive application in respect of the unsuccessful grounds. This application came before Mr Tim Smith (sitting as a Deputy High Court Judge). Mr Sam Tobin of PA Media (Interested Party) and a law reporter were in attendance. The Judge referred to the Anonymity Order at the start of the hearing and referred to it as extending to the Appellants' children and any children referred to in the evidence only. In response, the Appellants asked for their names to be anonymised too. Mr Tobin had raised that the Appellants' surname had been published on the publicly available list. After hearing short submissions, the Judge decided that it was futile to extend the Anonymity Order as the information was already in the public domain, but that the order could continue in respect of the children. He then went on to refuse the substantive renewal application. The Appellants sought to appeal the whole of the Judge's decision. Warby J granted permission in relation to the Judge's decision about the Anonymity Order only. The Appellants' case was that they did not apply to extend the Anonymity Order. They believed that it already prevented them from being named as it would lead to the identification of the children. However, the discussion before the Judge threw that into doubt. His order, which purported to refuse their application to extend the order, was in error. PA Media opposed the appeal and argued in written submissions that the Anonymity Order should not be "extended' and that the children had the effective anonymity sought by the parents – if naming the parents would lead to the identification of the children, that is already covered by the Anonymity Order. If, however, it would not lead to the identification of the children, then it is not necessary to extend the order. The court considered the law on anonymisation [paras 14-22] and concluded: - As to the effect of the order, its prohibition on the disclosure of any details leading to the identification of the Appellants' children would inexorably be breached by the naming of the Appellants themselves – the identity of the Respondents localises the case to a county, a village and a school and on top of that, the family surname is a distinctive one. - Properly understood, the Anonymity Order already provided the Appellants with the protection they sought. However, this was thrown into doubt at the start of the hearing as the Judge asserted more than once that anonymity did not extend beyond the children. - There was no application, in any real sense, to extend the Anonymity Order. It did not need extending, it needed clarifying. The court held that the Judge fell into error in two ways: 1) his misconception that the Appellants were seeking to extend an order which, properly understood, already provided the protection to which their children were entitled and 2) his approach to the balancing exercise that he then very briefly conducted. The Judge had given decisive weight to the fact that some information was already in the public domain, leading him to say that it would be futile to extend the order. The fact that information is in the public domain may certainly be a factor that speaks against making a restrictive order, but it is not an absolute barrier. The result of the decision was to leave in place an order whose effect had been placed in doubt. That decision could not stand, and so the court went on to make its own determination. The court applied the guidance contained in JIH v News Group Newspapers Ltd [2011] EWCA Civ 42 and Re S (A Child) [2004] UKHL 47; [2005] 1 AC 593 and balanced two significant factors: the privacy rights of the Appellants' children and the importance of the public interest in the identification of litigants. The court held: In making the Anonymity Order, the court concluded that the children's right not to be identified must take priority over the publication of information that would have that effect. The naming of the parents would have just that effect. Apart for the important general principle of party transparency, there is no specific countervailing public interest. On the facts of this case, the balance falls in favour of making it explicit that the Appellants cannot be named as to do so would identify the children. I would therefore amend the Anonymity Order to the extent set out below. [para 31]. "1. Paragraphs 10 and 11 of the order of Linden J dated 27 July 2020 are amended to read as follows: '10. There shall not be disclosed in any report of the proceedings the name or address of the Claimants' children or any other children referred to in the evidence, or any details (including the name or address of either of the Claimants) that might lead to the identification of the children. The Claimants may be referred to as CHF and CHM. The children, if referred to, shall only be referred to by letters of the alphabet.' 11. Pursuant to CPR rule 5.4C a person who is not a party to the proceedings may obtain a copy of a statement of case, judgment or order from the court records only if the statement of case, judgment or order has been anonymised such that: (a) the Claimants, the Claimant's children and any other children are referred to in those documents only by letters of the alphabet as above; and (b) any references to the names of the Claimants and such children have been deleted from those documents." [para 33]. The court added that the decision does not imply that adult litigants can always expect to be anonymised in public law cases involving children. These are fact-sensitive assessments, and in the majority of cases an order similar to that made by Linden J may be quite sufficient. Case summary by Sophie Smith-Holland, Barrister, St Johns Chambers For full case, please see BAILII
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Family Law Week: Re S (A Child) [2021] EWCA Civ 605

Home > Judgments Re S (A Child) [2021] EWCA Civ 605 The Court of Appeal ordered a rehearing of a mother’s application for leave to oppose an adoption application, because of procedural unfairness. The local authority’s failure to ensure that the necessary material was available to the mother and the court was criticised. ___ "In my view, the mother has a legitimate sense of grievance that, however sympathetically the judge approached her application, it was not determined properly. The consequences for her, and Z, are far reaching. It is trite to say that, however inevitable it may be, a disappointing result reached without procedural integrity will fuel a sense of injustice" Z and 4 older siblings were made subject of care orders on 1 February 2019 by order of HHJ Heaton QC. Z was also made the subject of a placement order on the same day. Z's last contact with the mother occurred in March 2019. The mother attempted to appeal the care and placement orders but the application was dismissed for breach of procedural requirements in July 2019. An attempt to reinstate the appeal was dismissed on 22 October 2020. Z was placed for adoption in September 2019. An application under s24 Adoption and Children Act 2002 for leave to apply to revoke the placement order was dismissed by HHJ Heaton QC in November 2019 (when he also ordered that Z younger sibling by a different father should live with the father, subject to a supervision order). The adopters gave notice of their application to adopt and the mother's response was to apply for leave to oppose the adoption under s47(5) ACA 2002. HHJ Heaton QC had retired and the matter came before HHJ Jack. The judge refused the mother's application on the basis that although she had made changes some of them predated the hearing in November 2019. The judge did not have the judgment from either the care and placement hearing in March 2019 or the leave to revoke hearing on November 2019. He made assumptions about the way that HHJ Heaton QC had assessed the changes. The local authority consisted of an affidavit from a social worker who had not been involved in the earlier proceedings and the Annexe A report (on the merits of the adoption), which had not been disclosed to the mother. Macur LJ (with whom the rest of the court agreed) concluded that the failure to ensure that HHJ Jack had transcripts of HHJ Heaton QC's judgements meant that there was no reliable bench-mark against which to measure change. She rejected the local authority's suggestion that the responsibility for that was the mother's (a litigant in person). She noted that the social work affidavit purported to address the different issue and legal test of an application to revoke. She also rejected the suggestion that the amount of redaction necessary would have rendered the disclosure of the Annexe A report unreadable as only one section deals with the adopters. The Court of Appeal could not assess the situation because its orders for key documents from the care proceedings and the transcripts had not been complied with either. Neither the Court of Appeal nor counsel for the local authority had read the Annexe A report. The document could have been disclosed to the mother or at least the parts about her: FPR 14.13. It is not clear from Macur LJ's judgement why it was assumed by the local authority and HHJ Jack that the application for leave to apply revoke had been dealt with on its merits in November 2019. If the child had already been placed then it was bound to fail: Re F (a child: placement order) [2008] 2 FLR 550, irrespective of any changes the mother had made. The court would have then been considering the argument for the first time on the application under s47(5). This case read together with R (On the Application Of EL) v Essex County Council [2017] EWHC 1041 (Admin) makes it clear that the profound effects of adoption place significant responsibilities on local authorities to ensure that the requirements of procedural fairness are satisfied. A failure to be proactive has serious ramifications for parents, adopters and most importantly the child as the processes of challenge are worked through. Many authorities will therefore seek to obtain transcripts of judgments from care and placement proceedings when those proceedings are complete where the plan is adoption, thereby speeding up consideration of any appeals and any applications for leave to apply to revoke placement orders or oppose adoption order. The possibility of the disclosure of material from Annexe A reports should also be considered when the s47(5) application is received. Those advising parents and adopters will also need to consider this possibility so that the court can give directions expeditiously. Case summary by Nicholas O'Brien, Barrister, Coram Chambers For full case, please see BAILII
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High Court judge revokes adoption orders after acknowledging "exceptional circumstances"

High Court judge revokes adoption orders after acknowledging "exceptional circumstances" | Children In Law | Scoop.it
A judge in the Family Division of the High Court has revoked adoptions orders for an 18 year old (A) and a 16 year old (B) after concluding that there were “compelling highly exceptional and particular circumstances” that supported such a step.
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X and Y (private law - change of name - termination of parental responsibility) [2021] EWFC B24 (19 April 2021)

X and Y (private law - change of name - termination of parental responsibility) [2021] EWFC B24 (19 April 2021) | Children In Law | Scoop.it
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Children’s social work case complexity has increased due to Covid, councils tell DfE

Children’s social work case complexity has increased due to Covid, councils tell DfE | Children In Law | Scoop.it
A growing number of local authorities have reported an increase in the complexity of children’s social work cases due to pandemic pressures, a Department for Education (DfE) survey has found.
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Cultural barriers to disclosing child sexual abuse

Cultural barriers to disclosing child sexual abuse | Children In Law | Scoop.it
How does the concept of culture affect how sexual abuse is dealt with, reported and further stigmatised in diaspora groups? Shehnal Amin, Associate in the Farrer & Co Race Equality Taskforce within the Safeguarding Unit, raises important questions around the issues of disclosing abuse in minority communities, and examines what needs to change to protect those at risk. Shehnal speaks to Pragna Patel, Founding Member and Director of the Southall Black Sisters, who provides expert insight into what roadblocks and community expectations are keeping ethnic minority victims in abusive circumstances, and what educational efforts are necessary to affect change. Bindu Bansinath, Writer and Assistant Editor at Harper’s Magazine, also joins the conversation to share her experiences of reporting abuse, the anxiety of choosing her safety over the ‘collective’ in doing so, and the power that the lack of sexual education in minority communities gives to an abuser. If you have any questions about the podcast, please get in touch with Shehnal Amin, or with your regular contact at the firm on +44 (0)20 3375 7000.  This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances. © Farrer & Co LLP, April 2021
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Review update: evidence and design groups

When I started this review I committed to listen deeply and think boldly about the changes that we need to make to improve the experiences of children and families. This means making sure the review hears from a wide range of voices. The foundation of this is the voice of the children, adults and families […]
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The necessity for a care order | The Transparency Project

The necessity for a care order | The Transparency Project | Children In Law | Scoop.it
I recently attended, as a legal blogger, a care hearing conducted in Wales by HHJ Gareth Jones. I’m not going to go into factual details of the case but will make some observations about process in virtual hearings from the point of view of a legal blogger, and about the way decisions are made about the necessity for a care order. Attending a virtual hearing as a legal blogger I emailed the court in question to ask if they would send me the joining details for a specific hearing, and attached all the necessary paperwork. I was then copied in to an email from the court to all the lawyers, the social worker and the guardian, so I thought I should explain who I was and I referred them to the TP legal bloggers information page. At the beginning of the hearing, the judge was able to ascertain from the local authority’s barrister that the parties had all been informed and asked if they had any objections to my attending. No one objected, so that all went smoothly. The problem is that it’s only at the end of the hearing that the legal blogger can stand up (virtually) and apply to the judge to lift the automatic section12 reporting restrictions on publication, because it was only at that stage that I knew what I wanted to write. There were quite lengthy delays at the outset of the hearing because one party and then one lawyer had technical problems, so I was loath to keep the participants in the virtual courtroom after the judgment had been delivered. However all the parties, of course, had to be consulted as to any objections or worries they might have about publishing. I explained briefly that I wanted to write about some legal issues, not about any factual detail and certainly not anything that might possibly lead to the child being identified. I don’t know what the answer is to this – even if all parents’ lawyers regularly advise them that because a legal blogger is present, they might expect such an application, no one will know until the end of the hearing exactly what might be written about. I understand that this can usually be dealt with fairly quickly in a physical court room hearing, but it took quite a while in this case. The decision made in this case about the necessity of a care order     Knowing nothing at all about the case before the hearing, I was at the early stages quite puzzled about the local authority seeking a care order in a situation where the threshold criteria had been established but, subsequently, the child’s mother (the primary carer) had been co-operating with the local authority. Everyone was full of praise about the mother’s progress in developing competent parenting skills. The child, who was still pre-school age, had always lived with her, although at certain times in a supervised setting. The local authority care plan, supported by a contract of expectations with the mother, with which everyone by this stage agreed, was that the child would continue to live with her under a ‘final’ care order, for the foreseeable future. The child had regular, reliable contact with the father.  In the light of the recent research about supervision orders, and also in the context of the current debates about whether too many care orders are being made, I was at a bit of a loss as to why the services this family needed could not be provided under a supervision order or a care and support plan (the Welsh version of a section 17 child in need plan in England). Just a few days earlier, Emily Dugan had published ‘The Welsh towns where 1 in 44 children are cared for by the state’ in The Sunday Times, generating more comment about the higher numbers of ‘placement with parents’ care orders in Wales than in England. The submissions by the lawyers and the questions from the judge eventually clarified that this child has very serious congenital medical needs that require constant attention, monitoring and medication from adult carers. It was a concern about a historical failure to comply with all those demands that had led to the child protection referral. The local authority and the guardian took the view that the several sources of support and advice that the family need, from a range of statutory services, can only be ensured under a care order. They also thought it was still ‘early days’ in testing the mother’s ability and commitment and that, should there be a medical emergency, the authority would need to intervene rapidly. They emphasised that the obligations under the detailed contract of expectations worked both ways; the mother’s barrister confirmed that she was aware that the local authority was also signed up to responsibilities in that agreement. The judge summarised these views in his judgment as the practical social work reasons for a care order being necessary. He then went on to explain the legal reasons for a care order being necessary and for the local authority to share parental responsibility. The reason for the proceedings was provision of adequate medical treatment. Under section 33 Children Act 1989, if there was a future need for emergency medical treatment, the care order puts the local authority in a position of shared parental responsibility through which they could apply under the inherent jurisdiction to the High Court to authorise that treatment. Coincidentally, section 33 powers have recently been explained at length in the Herefordshire case – where sadly, the local authority failed to make a court application when it should.  Secondly, the judge said, under a care order, if there was an emergency that required the local authority to remove the child from the mother’s care, they could do so, and if there was a serious concern that fell short of an emergency, they could give the parents 14 days’ notice that the child would be removed. Interestingly, the judge made some observations in his judgment on current debates  about the need to reduce the numbers of care orders being made, through the use of the public law outline, the work of the President’s Public Law Working Group, and calls by Welsh Government. He said that he was aware of all that, but that this was an unusual case where, although the local authority’s plan for reunification with the mother was going well, the child’s particular needs meant that a care order was required. Reflections When I asked the judge if he would lift the section 12 reporting restrictions so that I could write about the case, I was reassured when he replied that he thought there were matters of public interest in the discretion exercised by the courts in deciding between care orders and supervision orders. I agree, and I wish it was possible to do some research on such decisions being made across the country. There was certainly no hostility or annoyance shown by anyone involved in this hearing to legal blogging. Although my presence didn’t seem to cause any disruption, as I mentioned above, my request at the end created delays while the parties were consulted. The last thing legal bloggers, and also journalists attending, want to do is add to the stresses and delays in hearings but on the other hand, we don’t want to listen and learn, but not be able to share that.        Being able to attend this entire hearing also made me reflect on questions that have been raised in the transparency debate about attendance at court. Are there risks that busy media representatives will drop in and out of a court, and get a partial picture? For the most part of this half-day hearing, the child’s needs were referred to in rather a generic way. It was not until the judgment that I actually understood how serious his condition is (although the judge took care to add some encouraging words about his good prognosis) and why the care order was proportionate. This was my first encounter with the legendary CVP system, but it worked well my end. The hearing had originally been listed as a hybrid hearing with the judge sitting in court, as it had been understood that one party wanted to attend in person but in fact all parties attended virtually. Some participants could only join by phone but the judge paused regularly to check everyone was able to hear. I didn’t feel that anyone in this case was at a disadvantage through it being online. The court personnel and all the practitioners exhibited patience and flexibility.       We have a small favour to ask!  The Transparency Project is a registered charity in England & Wales run largely by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it. We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page. You can find our page, and further information here.  Thanks for reading!
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E v E (Anti-suit Injunction; Children) [2021] EWHC 956 (Fam)

E v E (Anti-suit Injunction; Children) [2021] EWHC 956 (Fam) | Children In Law | Scoop.it
The children, aged 8, 7 and 5, were all born in England and had been living with the father's brother in Nigeria since being abducted to that country by the father in 2019. The mother applied for an anti-suit injunction against the father, requiring him to discontinue Nigerian proceedings in respect of their children in circumstances where Lieven J had determined that: the courts of this country had jurisdiction over the children by reason of their habitual residence; England and Wales, rather than Nigeria, was the natural forum; and the English court was substantively seised of ongoing proceedings concerning wardship and the welfare of the children. The father and uncle had ignored and flouted numerous orders for contact, and the father had been arrested upon his return to England. Peel J considered whether the four required criteria for an anti-suit injunction were fulfilled: jurisdiction, a sufficient interest, an appropriate ground, and discretion. He found that they were, and had no hesitation in exercising his discretion in favour of making the order sought. The father was ordered to take the steps required of him in the Nigerian courts. Judgment, published: 28/04/2021 Topics Share
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The ‘folly’ of litigating ‘about where to litigate’: C (A Child) [2021] EWFC 32 | Class Legal

The ‘folly’ of litigating ‘about where to litigate’: C (A Child) [2021] EWFC 32 | Class Legal | Children In Law | Scoop.it
Background This case concerned a preliminary jurisdiction argument in relation to an application under Schedule 1 to the Children Act 1989. The hearing was before Sir James Munby, sitting as a judge of the High Court (‘the judge’). The application was made by the mother (‘M’), aged 39. She was born in Russia and is a Finnish citizen with family living in France. The respondent father (‘F’), aged 59, was born in Sweden and is resident in Monaco. The application concerned their daughter, C, born in France in 2014 (aged 6). M’s application under Schedule 1 was made in England on 26 November 2019. Two days before this, F had also made an application in Monaco, which the judge characterised as a “pre-emptive strike”. Specifically, F sought blood testing to establish his parentage of C, as well as provision for him paying M interim maintenance (pending the blood test outcome) of €2,225 per month. This application appeared to reserve F’s right to seek large sums in compensation for, inter alia, “the moral prejudice he suffered” as “a result of a theft of sperm or even a breach of trust on the part of” M and for M having brought proceedings in England “to manipulate the criteria of jurisdiction and applicable law”. F’s case appeared to be that he had not intended to impregnate M, and therefore that M must have become pregnant via some nefarious means. A DNA test ordered by the court in Monaco in September 2020 established that C was indeed F’s child. In March 2021 the Monegasque court held that, since it had jurisdiction in relation to the issue of C’s parentage, it also had jurisdiction in relation to the overarching issue of child maintenance, pursuant to Article 53 of the Code of Private International Law. The court noted that there was a dispute as to whether M was domiciled in the UK or France and made directions to resolve which law thereby applied to the claim. In December 2020 M had issued protective proceedings for child maintenance in Grasse in France, but the judge held that nothing turned on this issue. The Maintenance Regulation The judge noted that, since M’s application was made in November 2019, the Maintenance Regulation (‘MR’) still applied, regardless of the UK’s subsequent exit from the EU. The judge set out the established law in relation to the MR, including: the MR can apply notwithstanding the habitual residence of a defendant in a third state (in this case, Monaco, which is not a Member State) (Recital 15); jurisdiction can be founded (under Art 3) on the habitual residence of either party (Art 3 (a) and (b)) or as an ancillary to extant proceedings concerning ‘the status of a person’ (c) or ‘parental responsibility’ (d); Unless jurisdiction is founded on another element of the MR, the court before which the defendant makes an appearance (unless they are appearing only to contest jurisdiction) will have jurisdiction (Art 5); where competing applications on the same cause of action are issued in different member states, the court which is not first seised must issue a stay and – if the jurisdiction of the first seised is established – decline jurisdiction (Art 12); where multiple actions in different member states are simply ‘related actions’, similar rules in terms of issuing a stay / declining jurisdiction in favour of the first seised court apply (Art 13); actions are ‘related actions’ where they are deemed to be so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments (Art 13). The Maintenance Regulation: the issue The issue for the judge in relation to the MR was whether, since Monaco is not part of the EU, the MR nevertheless had ‘reflexive effect’, as argued by F. This was defined by the judge as a rule of domestic law allowing the court to treat analogously an earlier proceeding in a non-EU Member State as though it were in fact part of the EU, provided that the this did not conflict with any terms of the EU Regulation in question. By this submission F sought to persuade the court to decline jurisdiction in favour of Monaco, pursuant to Art 12. M argued that this submission fell foul of the principles underpinning the MR. The Maintenance Regulation: meaning and effect The judge distilled the jurisprudence on the MR into what he called ‘nine propositions’: the MR is intended to offer special protection for the maintenance creditor, who is regarded as the weaker party; the rules on jurisdiction are meant to ensure proximity between the creditor and the competent court; the best interests of the child are a primary consideration; the creditor has the choice to bring the action based on any of the four alternative criteria in Art 3; this right of the creditor to choose the jurisdiction (within Art 3) is unfettered; the rules in the MR must be considered to be exhaustive; the doctrine of forum non conveniens has no place in MR cases; in relation to Art 3, the contrast between sub-paragraphs (a) and (b) is between the place of habitual residence of the creditor – to whom the maintenance is (alleged to be) owed and the place of habitual residence of the defendant (the person against whom the claim is asserted); Art 3 does not create a right for the maintenance debtor to pick a jurisdiction from those set out in that provision and commence proceedings to establish his maintenance obligations. Applying these principles, the judge analysed the case as though F had brought the case in a Member State, rather than in Monaco, in line with F’s submissions. F argued that his application was founded on the basis that maintenance was a related action to the issue of the status of C (i.e. her parentage, under Art 3(c)) and that M had submitted to the jurisdiction of the Monegasque court by making ‘an appearance’ there (Art 5). The judge held that these arguments could not succeed because: the submissions stood in stark conflict to the principles that the creditor should have special protection and an unfettered right to choose from the jurisdictions available under Art 3; the ‘defendant’ in Arts 3(a) and 5 must mean F, not M, so even if M had made an ‘appearance’ in Monaco, that did not aid F. This point may require some further clarification, since F was running his case on the basis of Art 3(c), which does not include the language of “defendant”, as Art 3(a) does. This may not be an issue, however, because the judge firmly held to the broad principle that: the defendant is not entitled by Art 3 to choose the jurisdiction; neither Arts 12 nor 13 apply to the instant case – so the court is not obligated to issue a stay / decline jurisdiction, applying Villiers v Villiers (Secretary of State for Justice intervening) [2020] UKSC 30, per Lord Sales JSC and Lady Black JSC; F could not characterise M’s application as part of a stratagem within the meaning of the dicta of Lord Sales JSC in Villiers at para [56]. The Maintenance Regulation: reflexive effect? The judge therefore held that F’s case failed even if based on the counter-factual that the MR did apply as though Monaco were a Member State. Nevertheless, the judge set out his decision that ‘reflexive effect’ would not apply in any event. F founded his submission on this issue on the judgment of Andrew Smith J in Ferrexpo AG v Gilson Investments & Ors [2012] EWHC 721 (Comm). Neither the judge nor the parties could find any example of this authority having been applied to the MR. The judge held that he was precluded from finding any ‘reflexive effect’ in this case by the fact that the MR itself prohibits domestic remedies of this sort (per Recital 15). The judge therefore concluded that, despite the ongoing proceedings in Monaco, the English court had jurisdiction to hear M’s claim, subject to her being able to establish habitual residence. Furthermore, the court had no jurisdiction to grant F a stay of the proceedings. The Maintenance Regulation: habitual residence The judge went on to consider the principles of habitual residence. As a preliminary issue, he considered whether the ‘maintenance creditor’ could properly be said to be the parent, M, as opposed to the child, C, in the context of a Schedule 1 application. The judge noted that this was a “a nice, as yet unresolved, question”. This issue mattered in this context because of the different tests for adults and children for habitual residence. The test for adults is the ‘centre of interests’ and for children is ‘some degree of integration by the child in a social and family environment.’ The judge expanded on the test for adults, based on his authoritative judgment in Marinos v Marinos [2007] EWHC 2047 (Fam), as well as that for children, based on Proceedings brought by A (Case C-523/07) [2010] Fam 42 and Lord Wilson JSC’s ‘see-saw’ metaphor from In re B (A Child) (Reunite International Child Abduction Centre and others intervening) [2016] UKSC 4. The judge was inclined to hold that the relevant test was that applying to adults, but sensibly decided to proceed in the alternative as well. Habitual residence: the facts F’s case on habitual residence was that M was a ‘forum shopper’ and that she was dishonestly presenting herself as being habitually resident in England. M’s case was that the MR entitled her to choose the most advantageous forum for her claim, provided she could establish habitual residence as at 26 November 2019. As part of their attempts to undermine M’s case, the judge found that they had undertaken an “oppressive fishing expedition, directed, surely more in Micawber-like hope than expectation, that something might turn up.” M’s case was that she had lived in England from around 2004 to 2014. She met F in 2013 and had a brief relationship. She became pregnant and moved to France, on what was intended to be a temporary basis, to be closer to her mother and stepfather. In August 2019 she moved back to England with C. Her stated motivations for moving back to England were that she had not managed to get her business off the ground in France, and she was not happy with C’s schooling arrangements. She laid the groundwork in July 2019 to move to England whilst on a reconnaissance trip at which time she also met with her English solicitors. The judge noted that this final fact was only disclosed at the hearing. M moved to England in August 2019 and the court was shown various pieces of evidence of this (tenancy agreement, council tax payments, phone contract, GP registration, ballet lessons). C started at a primary school in September, and was moved to another, preferred, primary school in January 2020. Counsel for F teased out a number of inconsistencies, exaggerations and mistruths in M’s evidence, which the judge found had amounted to “a significantly successful attack on M’s reliability, and even her honesty, as a witness”. The judge accepted that, for example, M: exaggerated her account of her life in England prior to 2014; exaggerated her account of her life with F; downplayed her position in France when she described it as “temporary”; made the decision to move to England later in 2019 than she claimed; lied about “de-registering” her business in France; attempted to smear F by trying to implicate him in a burglary of her flat in London; lied in giving a false address in a witness statement. However, the judge held that these findings dealt with issues which did not impinge on M’s case as to her habitual residence in November 2019; she had moved to England and quickly put down roots which were demonstrable in evidence. None of the findings had chipped away at this underlying reality. Accordingly, the judge found that M had established by 26 November 2019 her centre of interests in London with the necessary degree of permanence and stability, and that (in the alternative) C had acquired a sufficient degree of integration in a social and family environment. A final comment Having found that M had established her habitual residence on this preliminary point, the judge added some concluding remarks. The judge noted that “preliminary skirmishing” about jurisdiction was extremely costly, notwithstanding the fact that the international legal framework was at least in part intended to make the area simpler and less prone to exhaustive litigation in multiple jurisdictions. In England, in this case, M and F had spent £300,308 (£134,520 of which for counsel) and £591,464 (£338,998 for counsel). The judge added that this jurisdictional issue was “particularly arid”, since it seemed likely that, as in Moore v Moore [2007] EWCA Civ 361, the relevant foreign court would still apply English law. In a related point, the judge noted that despite this outlay on legal fees, the legal advisers had failed to comply with the Bundles Practice Direction PD27A, in that, inter alia, much of the underlying documentation was simply scattered throughout the bundle, not helped by a “defective index”: “[H]ow many more years – decades – have to pass before those who ought to know better, and who, as in the present case, are being more than handsomely remunerated, comply with their obligations?” The judge ended with a plea: “Can nothing be done to prevent or at least ameliorate the folly of these huge and expensive cases that litigate about where to litigate?” Henry Pritchard, Pupil Barrister, 1 Hare Court
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High Court judge revokes adoption orders after acknowledging "exceptional circumstances"

High Court judge revokes adoption orders after acknowledging "exceptional circumstances" | Children In Law | Scoop.it
A judge in the Family Division of the High Court has revoked adoption orders for an 18 year old (A) and a 16 year old (B) after concluding that there were “compelling highly exceptional and particular circumstances” that supported such a step.
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From one President to another | The Transparency Project

From one President to another | The Transparency Project | Children In Law | Scoop.it
This is the text of a submission to the President of the Family Division’s Transparency Review made by Sir James Munby (former President of the Family Division), in advance of the oral evidence session scheduled for 17 May 2021. It is published here with kind permission of Sir James. We have added some hypertext links to some of the documents referred to which are freely available online. THE PRESIDENT’S TRANSPARENCY REVIEW Session on 17 May 2021 Submission by SIR JAMES MUNBY : 6 May 2021 Background I was called to the Bar in 1971 and took Silk in 1988. I was appointed a judge of the High Court, assigned to the Family Division, in 2000. I was appointed a Lord Justice of Appeal in 2009. From 2009-2012 I was Chairman of the Law Commission. From 2013 until my retirement in 2018 I was President of the Family Division. I am Chair of the Board of the Nuffield Family Justice Observatory. From 1988 until 2000 I was involved as counsel in many of the most important reported cases relating to what we would now call transparency in the family courts: acting sometimes on behalf of a child, sometimes as amicus curiae but frequently on behalf of newspapers. From 2000 until 2018, as a judge, I gave many reported judgments on the same topic. I think I can fairly say that my judgments in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, para 82, and A v Ward [2010] EWHC 16, [2010] 1 FLR 1497, paras 112-114, are widely recognised as definitive on the meaning and effect of section 12 of the Administration of Justice Act 1960. My perspective therefore reflects more than 30 years immersion in, thinking about and analysis of transparency from a variety of perspectives. The failure of reform That the law was not satisfactory and required reform was recognised as long ago as 1993, when the Lord Chancellor’s Department (the ancestor of the Ministry of Justice) published a Consultation Paper, Review of Access to and Reporting of Family Proceedings. It remains to this day the best analysis, in many ways, of the law and of the problems associated with it.[1] The results of that Consultation were never published and nothing more was done for over a decade. During the period from 2006 to 2009 the Department of Constitutional Affairs and its successor the Ministry of Justice carried out further Consultations.[2] During this process Government thinking underwent many changes. Eventually, what emerged was Part 2 of the Children, Schools and Families Act 2010. It was poorly drafted and never properly debated in Parliament; for a critical analysis, in both senses, see Munby, Lost Opportunities: law reform and transparency in the family courts, [2010] 22 CFLQ 273-289 (the 2010 Hershman-Levy Memorial Lecture). It was never implemented and, unlamented, was repealed in 2013: “Do the reforms which have taken place meet the criteria I have set out? Do they even meet the criteria identified by their architect? My answer to each question can only be a saddened and regretful No! … One view … is that if anything the Act is likely to reduce, rather than increase, the amount of information about children and other family proceedings which finds its way into the public. Truly, it may be thought, a lost opportunity.” During this period three things were achieved: With effect from April 2005, and as a direct result of my judgment in Re B, section 12 was amended by the insertion in section 12(4) of the following italicised words: “Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section (and in particular where the publication is not so punishable by reason of being authorised by rules of court).” In short, section 12 can now be disapplied by rules of court. Amendment to the relevant rules of court followed in October 2005 and, to much more radical effect in April 2009, permitting disclosure in various circumstances which would otherwise be prohibited because of section 12: for the latter see now the Family Procedure Rules 2010 (FPR) Chapter 7 Rules 12.73 and 12.75 and Practice Direction 12G. With effect from April 2009, accredited journalists have been entitled, with certain limited exceptions, to attend family proceedings held in private: see now FPR Rule 27.11, Practice Direction 27B, Attendance of Media Representatives at Hearings in Family Proceedings, and President’s Guidance of 22 April 2009: Applications Consequent upon the Attendance of the Media in Family Proceedings: [2009] 2 FLR 167.   The practical impact of this in relation to transparency has been minimal, essentially for three reasons:    First, the new disclosure rules did not enable journalists to report what would otherwise be prohibited because of section 12: Most of the newly permitted disclosure was to those ‘inside the system’ who had a ‘need to know’. Rule 12.73(2) made clear that there was to be no “communication to the public at large, or any section of the public of any information relating to the proceedings”. (see Re N (A Child) [2009] EWHC 1663 (Fam), [2009] 2 FLR 1152, paras 58-59, 71), Rule 12.73(2) prohibited the journalist publishing what had been communicated. Secondly, the access to proceedings which had now been granted to journalists was not accompanied by any relaxation of section 12: so, the journalist could attend but could not report. Thirdly, the access to proceedings which had now been granted to journalists was not accompanied by access to the documents: so, the journalist could attend but could not understand much of what was happening. Once upon a time, in the days of my legal youth, proceedings in court were entirely oral: there was no judicial pre-reading; there was no written advocacy – no position statements or skeleton arguments; in an oral ‘opening’ the advocate took the judge, often at some length, through the facts, the documents and the law; and evidence in chief was oral. The journalist and the intelligent observer in the public gallery were thus able to follow what the case was about and what was going on. That is still, in essence, the procedure in criminal cases; in civil and family cases it has long since been consigned to history. The judge will have pre-read the bundle, there are written chronologies, position statements and skeleton arguments, and the evidence in chief is set out in written witness statements. The opening, if there is one, is attenuated. Much of the time, the hearing proceeds with such Delphic observations as “in relation to what the applicant says in paragraphs 23, 25 and 49 of her witness statement …” or “I need not elaborate what is set out in my skeleton argument except to note that …” Even the most astute and experienced journalist or observer is hard put to understand or follow what is going on.   The last point is exacerbated by the complexity and unpredictability of any application by a journalist for access to documents: see, for example, the decision in Newman v Southampton City Council [2020] EWHC 2103 (Fam), [2020] 4 WLR 108, which in places is not entirely easy to follow and is therefore difficult to apply,[3] and, in relation to the costs of redaction and copying, Newman v Southampton City Council [2020] EWHC 2148 (Fam) (appeal dismissed Newman v Southampton City Council and others [2021] EWCA Civ 437).[4] Interestingly and importantly, in the Court of Appeal King LJ commented (para 90): “This case has served to emphasise the need for the development of guidance in the form of court rules in order to assist courts in dealing with these difficult issues.” Unsurprisingly, in these circumstances, few journalists chose or choose to attend. More recently, I was responsible as President for pushing through two initiatives: In January 2014, I issued Practice Guidance: Transparency in the Family Courts: Publication of Judgments. I explained (paras 1-2) that this: “is intended to bring about an immediate and significant change in practice in relation to the publication of judgments in family courts …there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system. At present too few judgments are made available to the public”.   In October 2018, a pilot scheme was introduced in accordance with FPR Rule 36.2 enabling ‘legal bloggers’, in addition to accredited journalists, to attend family proceedings: see Practice Direction 36J, Pilot Scheme: Transparency (Attendance at Hearings in Private). The effect of this has been mixed: Compliance with the Practice Guidance has been both patchy and inconsistent. The Practice Guidance has not achieved what I had hoped and intended. The findings of two careful pieces of research are, to put it no higher, deeply troubling: see, in 2017, Doughty, Twaite and Magrath, Transparency through publication of family court judgments: An evaluation of the responses to, and effects of, judicial guidance on publishing family court judgments involving children and young people (see also their very helpful 4-page abridged version), and, in 2020, Bellamy, The ‘Secret’ Family Court, chapter 7: The Impact of the Practice Guidance. These two studies need to be read in full. Broadly speaking, their conclusions are very similar. Bellamy’s is particularly useful, for it covers a longer period and is more up to date. It focuses on the publication of judgments by Circuit Judges. A graph covering the period from March 2014 to March 2019 (page 95) illustrates the dramatic, and seemingly continuing, decrease in the number of such judgments published since 2015. He comments (pages 97-98): “… during that five-year period 82 family Circuit Judges did not publish any judgments at all. When the figures are analysed in detail it can be seen that only 20 judges published more than ten judgments, the rest were all in single figures. 11 judges published more than 20 judgments. There is also regional variation. In Wales only two judges published judgments. 96% of those judgments were published by just one judge. In one major court centre (Birmingham) a total of five judgments were published by three judges. In some courts – Wolverhampton, Telford and Worcester, for example – no judgments were published at all. … There are 42 Designated Family Judges in England and Wales … 18 DFJs in post when I undertook the survey have never published a judgment on Bailii.” Circuit Judges, like all judges in the family justice system, are having to cope with the intolerable pressures of ever-increasing workloads (I ignore, for present purposes, the additional pressures generated by the COVID pandemic.) And this, as Bellamy explains (pages 99-102), is undoubtedly a very significant factor when assessing the picture overall. But it does not begin to explain the astonishing differences uncovered by his, and the earlier, research. The stark reality is that much of this is because of very differing judicial attitudes and behaviours (on which see Bellamy, pages 102-111). The problem could hardly be clearer: Why had 18 out of 42 DFJs never published a judgment?     On the ‘plus’ side, recent years have seen the emergence of a new breed of tweeters and bloggers (lawyers and non-lawyers) and freelance journalists whose work is transforming knowledge and understanding of the family justice system. Their work is characterised by a real understanding of the system and a desire to explore the realities of its workings. Often very critical – justifiably so – their approach is, however, responsible and directed to explaining and improving the system. Developments in the Court of Protection It is relevant to note two initiatives in the Court of Protection which I undertook in my capacity as President of the Court of Protection: In January 2014, at the same time as I issued the Practice Guidance in relation to family proceedings, I issued corresponding Guidance in relation to the Court of Protection: Practice Guidance: Transparency in the Court of Protection: Publication of Judgments. In January 2016, a pilot scheme was introduced, in accordance with the Court of Protection Rule corresponding to FPR Rule 36.2, providing, as a default provision, for all hearings to be in open court, subject to an order in standard form being made restricting publication of identifying information. The pilot, which ran until November 2017, was successful and was made permanent: see Court of Protection Rules 2017, Rule 4.3 and Practice Direction 4C, Transparency. This opening up of the Court of Protection seems to have worked well and, importantly, without causing any significant problems. Interestingly, it has led to much greater outside interest in and reporting of what the Court of Protection is doing, extending far beyond the traditional legal reporting and analysis of published judgments. The blogs and tweets published by the Open Justice Court of Protection Project – Promoting Open Justice in the Court of Protection are a convincing demonstration of the many and obvious advantages which have accrued following the opening up of the Court of Protection. They are important as showing the way ahead, not least because the distinguished commentators who are the Open Justice Court of Protection Project ­– Professor Celia Kitzinger and Gill Loomes-Quinn – are neither lawyers nor journalists, attending court as members of the public. The problem  There are two major problems: First, there is the sheer complexity of the law. The number of reported cases since 1975 is enormous. The six critical words in section 12 – “information relating to proceedings … in private” – which, although section 12 has been amended from time to time down the years, have remained unchanged from the first introduction into the House of Lords in March 1960 of the Bill which became the 1960 Act, have probably generated as much litigation as any other six words on the statute book. The LCD’s Consultation Paper of 1993 runs to 134 pages; Doughty, Reed and Magrath, Transparency in the Family Courts: Publicity and Privacy in Practice, the current practitioner’s ‘bible’, runs to 243 pages, not counting a further 84 pages of appendices; Burrows, Open Justice and Privacy in Family Proceedings, runs to 216 pages. Secondly, the case-law establishes that there is a crucially important distinction between publishing merely “the nature of the dispute” (which is permissible) and publishing “the substance of the matters” (which is not permissible). There are five cases which bear on this: Re W and Others (Wards) (Publication of Information) [1989] 1 FLR 246, X v Dempster [1999] 1 FLR 894, Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, Clayton v Clayton [2006] EWCA Civ 878, [2007] 1 FLR 11, and S v SP and Cafcass [2016] EWHC 3673 (Fam), [2017] 2 FLR 1079. The judgment of Wilson J, as he then was, in Dempster was the first to explore the distinction and remains, in many ways, the most important; it comes as close as anyone is likely to be able to illuminating the essential distinction between publication of “the nature of the dispute”, which is permissible, and publication of even summaries of the evidence, which is not. It is no criticism of Wilson J, but rather of the state of the law, that his analysis (and the same goes for all the other cases) is essentially subjective and thus unlikely to be of much use to even the most experienced journalist. The consequence of this is that, irrespective of what a lawyer may think it means, section 12 has a seriously chilling effect on what people – families, journalists and legal bloggers – think can be published: Given that a breach of section 12 involves contempt of court – for which the penalty is imprisonment or unlimited fine – a legal blogger or journalist without access to appropriately skilled legal advice, and even one who is well advised or knowledgeable but has a lot to lose professionally and personally if they or their lawyers interpret the scope of what is permissible differently from a judge, is bound to err on the side of caution. This usually means that very little is published in the absence of a published judgment, and, even then, only what can be gleaned from the judgment. The cost, in terms of time, effort and potential legal costs, and the unpredictability of the outcome, mean that an application to the court to disapply section 12, whether in part or in whole, is typically undertaken only by the most determined. The practical reality I fear is that, because of the complexity and lack of clarity, too many in the media – commissioning editors, journalists and even media lawyers – just do not want to go there; let alone getting to the stage of making an application in what, rightly or wrongly (and it does not matter which), many feel is a hostile, conservative environment that does not like the press or any sort of scrutiny. The complexity and uncertainty in the law, coupled with the professional reality that few family lawyers (and not even all media lawyers) are actually masters of all the learning, means that legal advice is likely to be very cautious, whether the issue is the meaning and effect of section 12 or the possibility of its disapplication. The consequences The consequences of all this are profoundly serious. I identified the issues as long ago as 2004 in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142. Nothing which has happened since has caused me to alter the analysis. Quite the contrary. There are four major problems: It causes serious and continuing reputational damage to the family justice system: There is a public interest in promoting and maintaining the confidence of the public at large in the family courts, an interest underscored, as the Strasbourg court has repeatedly stressed, by ECHR Article 6. The reality is that confidence is at a low ebb because of perceptions that the family justice system is failing and that there are miscarriages of justice. We cannot afford to proceed on the blinkered assumption that all is well and that there have been no miscarriages of justice in the family justice system. We know there have been and continue to be. This is something that has to be addressed with honesty and candour if the family justice system is not to suffer further loss of public confidence. Open and public debate in the media is essential, not least because, in the very nature of things, the initial ‘official’ response to any allegation that there has been serious error is likely to be one of scepticism or worse. But that, it might be thought, is all the more reason why there should not be restraint, why the media should not be hindered in their vital role. It prevents parents and children speaking out: Parents and relatives such as kinship carers often want to speak out publicly; sometimes children also do.[5] The workings of the family justice system and, very importantly, the views about the system of those caught up in it, are, as Balcombe LJ put it in Re W (Wardship: Discharge: Publicity) [1995] 2 FLR 466 at p 474, “matters of public interest which can and should be discussed publicly”. Many of the issues litigated in the family justice system are so serious and life changing that they require open and public debate in the media. It is important, in a free society, that parents, relatives and children who feel aggrieved at their experiences of the family justice system are able to express their views publicly about what they conceive to be failings in the judicial system or on the part of individual judges. It facilitates the peddling of untruths: One of the disadvantages of the “curtain of privacy” to which Balcombe LJ once referred – what some campaigners would prefer to characterise as the cloak of secrecy surrounding the family courts – has become apparent. Those who without justification attack the family justice system can all too easily do so by feeding the media tendentious accounts of proceedings whilst hypocritically sheltering behind the very privacy of the proceedings which, although they affect to condemn, they in fact turn to their own advantage. It is all too easy to attack the system when the system itself prevents anyone – even the responsible journalist or commentator who wants to print the truth – correcting the misrepresentations being fed to the media. The simple fact is that too relentless an enforcement of the privacy of family court proceedings is counter-productive; the rule of confidentiality facilitates the dissemination of false and tendentious accounts of proceedings in family courts, which in turn tends to further undermine public confidence in the system. The point was well captured by Ryder J, as he then was, in Blunkett v Quinn [2004] EWHC 2816 (Fam), [2005] 1 FLR 648, para 22: “In considering the competing rights [under Articles 6, 8 and 10], I have come to the clear conclusion that having regard to the quantity of material that is in the public domain, some of it even in the most responsible commentaries wholly inaccurate, it is right to give this judgment in public. The ability to correct false impressions and misconceived facts will go further to help secure the Art 6 and Art 8 rights of all involved than would the court’s silence which in this case will only promote further speculation and adverse comment that will damage both the interests of those involved and the family justice system itself.” In Re P (Enforced Caesarean: Reporting Restrictions) [2013] EWHC 4048 (Fam), [2014] 2 FLR 410, I said this (paras 1, 43-45): “This is an application … for a reporting restriction order in a matter which has been the subject of much reporting and comment in the media both in this country and around the world. Too much of that reporting has been inaccurate – though that, as I shall explain, is not entirely the fault of the media – and some of it has been tendentious, to use no stronger word … Before parting from the case there are two points that require to be addressed with honesty and candour. Both relate to the fact that, when this story first ‘broke’ on 1 December 2013, none of the relevant information was in the public domain in this country. The first point is this: How can the family justice system blame the media for inaccuracy in the reporting of family cases if for whatever reason none of the relevant information has been put before the public? The second point is, if anything, even more important. This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach what for shorthand I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published. And, as this case so very clearly demonstrates, that applies not merely to the judgments of High Court Judges; it applies also to the judgments of Circuit Judges.” It prevents the judges being held properly to account: As Lord Steyn pointed out in R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115, 126, “freedom of speech is the lifeblood of democracy … It facilitates the exposure of errors in the … administration of justice of the country.” The freedom to publish things which judges might think should not be published is all the more important where the subject of what is being said is the judges themselves. In his great speech in Scott (otherwise Morgan) and another v Scott [1913] AC 417, 477, Lord Shaw of Dunfermline quoted Bentham to powerful effect: “In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.” “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.” “The security of securities is publicity.” Yet the effect of section 12 is to hobble the media. This last point is fundamentally important and requires elaboration. Holding to account Let me postulate a simple hypothetical example. A journalist or legal blogger attending a hearing listens to a discussion between the judge and advocates about the arrangements for a future fact-finding hearing. Notwithstanding section 12, in my opinion (though I could understand a journalist or legal blogger being more cautious) it is permissible for the journalist or blogger, in identifying the issues being discussed, to refer, for example, to: How much of the bundle the judge needs to read before giving directions. How many and which of the allegations (one of rape) should be the subject of fact-finding. The need for any fact-finding and the likely impact of any findings on future contact. Whether the complainant should have the use of screens. Beyond that, section 12 prohibits not merely publication of even anonymised extracts from the journalist’s or blogger’s shorthand notes (or from the transcript, if available) but also any account of how the judge dealt with the issues. The journalist or blogger is dismayed – perhaps appalled – by what the judge has said, or indeed by what they observe of his non-verbal conduct or of the interactions and dynamics in the courtroom, as indeed, let us suppose in our hypothetical example, would be the vast majority of right-thinking family practitioners and members of the public. What is the journalist or blogger to do? Ask the judge who is to be criticised to authorise publication? Many, and not only the most cynical, might understandably baulk at the very idea. There is a profoundly important, if very simple, question: how could publication of this material in totally anonymised form (except for the identity of the judge) possibly damage anyone other than the judge? The answer is obvious – it could not – unless it is to be said that it would damage public confidence in the family justice system. To that objection, the answer is equally obvious: how is confidence in the system maintained by concealing the truth, however disagreeable, embarrassing or even career-damaging? Quite the reverse.[6] Is section 12 a necessary protection or an objectionable obstacle? The answer is clear. If it is said that my example is fanciful, I need only refer to the recent judgments in notorious appeals: JH v MF [2020] EWHC 86 (Fam) and Re H-N and others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448. What this illustrates, I have to suggest, is: The chilling effect of section 12 and just how serious an obstacle section 12 is to publishing the truth about what is going on in the family courts and to achieving proper accountability. That there are cases – who knows how many, but I fear too many – where the only person being protected by section 12 is the judge – not the family, not the children, nor other lay participants – a person who, in the public interest, ought to be held to account. The irrefutable truth of the Benthamite proposition that only constant exposure to the public gaze keeps judges up to the mark. There are a number of further linked points: What I have said in relation to the judges has equal traction in relation to other public officials and public bodies. Section 12 not merely stands in the way of judges and other public officials being held to account, it also hinders and to a significant extent prevents what one might call “internal transparency” – the ability of a system to reflect, having had a mirror held up, and to learn and where necessary to effect cultural change. By this I mean not just change of culture in relation to transparency but also cultural change more generally, for example in attitudes to domestic abuse. Publication of judgments – many, many more judgments than at present ever see the light of day – is vital. However, it is not a panacea. A judgment, after all, contains only what the judge chooses to include, but a critic may wish to argue, for example, that the judge has misunderstood the evidence or overlooked important matters or, as in the appeals in JH v MF [2020] EWHC 86 (Fam) and Re H-N and others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448, where the vitally important context was revealed only when the transcripts were produced, has arrived at his conclusions by a process which was unfair or worse. Even if the judgment has been published, section 12 precludes discussion of any of those matters. Why? As I said in Re Webster, Norfolk County Council v Webster [2006] EWHC 2733 (Fam), [2007] 1 FLR 1146, para 110: “if what is being said is that there has been a failing in the judicial process, it might be thought – and certainly will be thought by some – to be less than satisfactory that the only accounts of what has happened, the only explanations to be given to the public, are those which a judge thinks it appropriate to include either in a judgment or in a judicially approved press release. After all, the complaint may be that the judge has misunderstood the evidence, overlooked some vital piece of evidence or gone against the weight of the evidence – and how can that case be made if the only material available to the public is the very judgment whose alleged deficiencies are under challenge?” The standing of the family justice system today In relation to all of this, I venture to quote what I said in A v Ward [2010] EWHC 16, [2010] 1 FLR 1497, para 133: “… the law has to have regard to current realities and one of those realities, unhappily, is a decreasing confidence in some quarters in the family justice system – something which although it is often linked to strident complaints about so-called ‘secret justice’ is too much of the time based upon ignorance, misunderstanding, misrepresentation or worse. The maintenance of public confidence in the judicial system is central to the values which underlie both Art 6 and Art 10 … And where the lack of public confidence is caused even if only in part by misunderstanding or, on occasions, the peddling of falsehoods, then there is surely a resonance, even for the family justice system, in what Brandeis J said so many years ago. I have in mind, of course, not merely what he said in Whitney v California (1927) 274 US 357 at 77: ‘If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.’ I have in mind also his extra-judicial observation that, and I paraphrase, the remedy for such ills is not the enforced silence of judicially conferred anonymity but rather the disinfectant power of exposure to forensic sunlight.” Matters are no better today. If anything, they are worse. Down the years the focus of criticism has shifted from time to time. In 2004 the concern was as to the quality of expert evidence in cases of sudden infant death. Subsequent concerns related to wider problems in the care system: the issue of so-called ‘forced adoption’; concerns that too many children were being taken into care; and, more generally, complaints about often seemingly serious failings by local authorities. On occasions these concerns extended to criticisms of judicial behaviour. Most recently, the focus has been on failings – and especially judicial failings – in the private law system, in particular in cases involving, or alleged to involve, domestic abuse. The Final Report of the MoJ Expert Panel on Harm in the Family Courts published in June 2020 is a shattering indictment of the system. The accompanying Ministerial statement was blunt: “This report lays bare many hard truths about long-standing failings in the family justice system, especially in protecting the survivors of abuse and their children from harm. It is not a comfortable read. The testimonies in the report show that there are some fundamental issues that we must address in order to improve the experience and ensure the safety of all participants in the family justice system. I want to make it clear that this is not acceptable.” The judgments in JH v MF [2020] EWHC 86 (Fam) and Re H-N and others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448 reveal very serious judicial failings by experienced family Circuit Judges and show that there can be no room for complacency. But for the appeals, the likelihood is that these judicial failings would have gone completely unnoticed, shielded from publicity by a combination of the judges’ failure to publish their first instance judgments and the effect of section 12. The saddening reality, I believe, is that the family justice system stands today in lower public regard than at any time I can recall. It gives me no pleasure to say this, but it is, I believe, a time for plain speaking, however painful. We cannot afford to stand still. The stark reality is that the family justice system is going to lose more by persisting with its current way of doing things than – no matter the inevitable discomfort – it will by becoming more open. The irony is that it is section 12 which also shields good judicial work from being shown – for example by the journalist who is in court and wishes to explain, and illustrate, how very well a humane and empathetic judge has managed the hearing and supported the parties to give their best evidence. A problem of culture Underlying these difficulties, is a significant problem of judicial culture. The point can be put very simply: how many of us really accept either the Benthamite principle that the judge, while judging, should himself be judged (“Publicity is the very soul of justice … It keeps the judge himself while trying under trial”) or Brandeis J’s belief in the disinfectant power of exposure to forensic sunlight? A five-fold approach I suggest that what is needed – and as a matter of pressing necessity – is the following: (1) Repeal of section 12 and, if appropriate, its replacement with more focused provisions better suited to the modern world I need not rehearse the arguments: see, in addition to what I have already said, Munby, Bellamy, Reed, Doughty and Tickle, Should section 12 of the Administration of Justice Act 1960 be repealed? – A Proposal for the Law Commission’s 14th Programme of Law Reform, [2021] 80 Family Affairs 23, and, without the Introduction, [2021] Fam Law 466. (2) An open court pilot In the meantime, and a matter for early implementation, there needs to be an ‘open court’ pilot scheme in the family courts similar to the pilot that was so successful in the Court of Protection. I am aware of the proposals which the very experienced freelance journalist Louise Tickle has put forward. l strongly support them. I am conscious that forensic realities in the family courts often differ from those in the Court of Protection, but for present purposes the fundamental legal principles in play are precisely the same, as demonstrated by (a) the analysis of all the judges in Scott (otherwise Morgan) and another v Scott [1913] AC 417 and (b) the fact that section 12(1)(a), in relation to the family courts, mirrors precisely section 12(1)(b) in relation to the Court of Protection. I acknowledge, of course, that media reporting is not and never will be perfect. But, with all its inevitable imperfections, it works as an important check to power in other parts of our society; it should be allowed to do so in the family justice system. (3) Increased publication of judgments The following steps need to be taken: The consolidation of the existing Practice Guidance (the Practice Guidance I issued in January 2014 and the Practice Guidance: Family Court – Anonymisation Guidance issued in December 2018 by the President) as recommended by Doughty, Twaite and Magrath, coupled with a renewed and sustained drive to persuade judges to comply with it. The setting up of an Anonymisation Unit along the lines of the Australian model as recommended by Bellamy (Bellamy, 189-192, 248-249) – it is essential that this is under the direct control of the judiciary and not a task undertaken by either Her Majesty’s Courts and Tribunals Service or the Ministry of Justice. Clarification of the guidance in relation to the naming of local authorities and other public bodies. The 2014 Practice Guidance was explicit that “public authorities … should be named in [a] judgment approved for publication, unless there are compelling reasons why they should not be named”. That reflected the case-law. Some judges seem to have taken the view that the later Practice Guidance has changed this, and therefore have not named the local authority: see, for an example, A Local Authority v B, H and I (Sibling as carer or adoption) [2019] EWFC B1, para 1. This is a seriously retrograde step. (4) Creation of a Media Liaison Committee         I strongly support Bellamy’s recommendation (Bellamy, 203-204, 250) that a Media Liaison Committee should be created. Given current realities, it is important that such a group should include not only members drawn from the traditional print and broadcasting media but also members drawn from the blogging and tweeting communities. (5) Rule changes Pending repeal of section 12, and whatever else is done, rule changes having effect for the purposes of section 12(4) would go a significant way to ameliorating the problems identified above. In this connection, I believe that we need to proceed incrementally. What I propose is merely a first step. The situation needs to be kept under review, with a view to moving further forward with all due speed in the light of experience. For this purpose, I propose new rules under three headings: Disclosure by parties to reporters. Access by reporters to documents.   Extending the ambit of what can be reported. I use the expression “reporter” to include both journalists and legal bloggers. Disclosure by parties to reporters FPR Rule 12.75(1) should be amended to provide explicitly that a party to proceedings is permitted to “communicate information relating to the proceedings” (which in this context would plainly include documents) to a reporter. On one view, such a rule would not require qualification, as Rule 12.73(2) would prohibit the reporter publishing anything so communicated without the prior approval of the court unless otherwise permitted by the new rules I propose below. On the other hand, and whatever the strict logic of such an approach, it might be thought appropriate to exclude certain identified types of document. I have in mind: Medical (including psychiatric and psychological) records and reports relating to anyone other than the person who is communicating with the journalist. Such documents will, of their nature, include highly sensitive and confidential information in relation to which a high degree of protection – protection from dissemination and publication – attaches as a matter of principle, human rights and substantive law. In particular, the State is under an obligation to ensure that there are in place “effective and adequate safeguards against abuse”: see the discussion in Re N (Family Proceedings: Disclosure) [2009] EWHC 1663 (Fam), [2009] 2 FLR 1152, paras 49-51, Re C (A Child) (Application by Dr X and Y) [2015] EWFC 79, [2017] 1 FLR 82, paras 27-31, and In re G (A Child) (Wider Family: Disclosure of Court File) [2018] EWHC 1301 (Fam), [2018] 4 WLR 120, para 32, of the Strasbourg decisions in Z v Finland (1998) 25 EHRR 371 and MS v Sweden (1999) 28 EHRR 313. Assessments – for example assessments as potential carers of parents, kinship carers, special guardians and adoptive parents – of anyone other than the person who is communicating with the reporter. Documents which have been disclosed by the Police or other agencies on terms limiting further disclosure. Access by reporters to documents Rules 12.73 and 12.75 or PD 12G should be amended to entitle a reporter who attends or is or was entitled to attend any hearing to be supplied forthwith on request with certain documents. What those documents should be is a matter for consideration, and it may be prudent in the first instance to proceed incrementally, but I propose that initially the following should be provided if requested: Chronologies (including social work chronologies), case summaries, position statements and skeleton arguments. These are necessary to enable the reporter to understand and follow what is going on. Expert reports, in particular expert reports relating to harm alleged to have been suffered by a child. This would be in line with what Sir Nicholas Wall P said in Re X, Y and Z (Expert Witness) [2011] EWHC 1157 (Fam), [2011] 2 FLR 1437, para 94: “I would therefore like to see a practice develop, in which expert reports would be routinely disclosed, and the media able to comment both on the report and on the use to which they were put in the proceedings. This would mean that the views of the judge on the expert evidence would also be disclosed.” If disclosure of other documents is sought, application should be made, as at present, to the judge. This list should be expanded, in the light of experience, to include, for example, witness statements. In particular, early consideration must be given to permitting disclosure of witness statements filed on behalf of local and other public authorities. My present feeling is that, whatever future additions might be made to the list of documents a reporter is entitled to have supplied on request, it should remain necessary first to obtain the approval of the judge for a reporter to obtain: Documents which have been disclosed by the Police or other agencies on terms limiting further disclosure. There is an issue as to whether documents should be provided in anonymised form. Although many might, instinctively, think that such documents should always be anonymised, there are powerful countervailing arguments: The burden of redaction imposed on those who are often already over-worked and poorly remunerated. The fact that, at the end of the day, the real and vital protection is that afforded by section 97 of the 1989 Act (as elaborated in the publication rules proposed below). I draw attention to CPR PD52c, para 33(2), which provides that in appeals to the Court of Appeal in family proceedings involving a child the copies of the skeleton arguments required to be supplied in accordance with para 33(1) “must be in anonymised form and must omit any detail that might, if reported, lead to the identification of the child.” That, however, applies to proceedings in open court, so may not be necessary where the proceedings are in private and therefore, subject to specific exceptions, protected by section 12 and section 97. Extending the ambit of what can be reported For this purpose, I propose for the moment new rules based in part on the provisions to be found in: the Judicial Proceedings (Regulation of Reports) Act 1926, as in force today; the Children and Young Persons Act 1933, as in force today; the Magistrates’ Courts Act 1980, as in force immediately before the introduction of the Family Court in 2014; and the Children Act 1989, as in force today. The first three of these are of particular interest because they regulate the publication of details of hearings conducted in public (the 1926 Act) or hearings in relation to which journalists were entitled by statute to be present (the 1933 Act dealing with the youth court and the 1980 Act dealing with the family proceedings court). I am not aware that these provisions of either the 1933 Act or the 1980 Act have ever given, or ever gave, rise to any concerns. It is also to be noted that, as Sir Stephen Brown P said in Moynihan v Moynihan (No 1) [1997] 1 FLR 59, quoted in Rapisarda v Colladon [2014] EWFC 1406, [2015] 1 FLR 584, para 25, referring to section 1(1)(b) of the 1926 Act: “it is quite plain that there would appear to be ample scope in the context of the subparagraphs of subpara (b) for clear and full details of the proceedings to be given, though not necessarily a line-by-line account of what a particular witness says at any particular time.” I set out the relevant provisions in the Appendix. As can be seen, there is significant common ground between them. For present purposes it is to be noted that they adopt three different techniques: Stating what you cannot publish: the 1933 Act, sections 49(1), (3A); and the 1989 Act, section 97(2). Stating what you can publish: the 1926 Act, section 1(1)(b). Stating both what you cannot publish and what you can publish: the 1980 Act, sections 71(1A), (2). In terms of what you cannot publish, compare: the 1933 Act, sections 49(1), (3A); the 1980 Act, section 71(2); and the 1989 Act, section 97(2). In terms of what you can publish, compare: the 1926 Act, section 1(1)(b); and the 1980 Act, section 71(1A). I propose – I emphasise along with other reforms – rule changes, in the first instance setting out, along the same lines as and building on these statutory precedents, both a list of what you cannot publish and a list of what you can publish. In due course, and I would hope sooner rather than later, it will be important to move to a simpler rule merely setting out what you cannot publish. In the first instance, such a rule might take the following form: A reporter may publish: the grounds of the application, and a concise statement of the charges, defences and counter-charges in support of which evidence has been given; the submissions on any point of law or practice arising in the course of the proceedings and the decision of the court on the submissions; the judgment or decision of the court, and any observations made by the court in giving it; information about the conduct, verbal and non-verbal, of the judge and the judge’s exercise of case management powers; information about the conduct in the course of the proceedings of the local and any other public authority; and comments, views and criticisms (including by the parties or third parties) on any of the above. Provided that the reporter must not publish in relation to any child concerned in the proceedings: the name or address of the child; the identity of any school or other educational establishment attended by the child; any picture (still or moving) as being, or including, a picture of the child (unless the child is disguised so as to prevent identification); or any material which is intended, or likely, to lead members of the public to identify the child as someone concerned in the proceedings or in any other proceedings before the High Court or the family court in which any power under the Children Act 1989 or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child. Provided also that the reporter must not publish (except as part of any report to the extent permitted above of any judgment decision or observations made by the court) any part of any medical (including psychiatric and psychological) record or report relating to anyone other than a person who consents to disclosure; or any assessment of anyone other than a person who consents to disclosure. The rule would require definitions of what for this purpose is meant by “reporter”, “publish”, and “child concerned in the proceedings”. Conclusions In summary: Something has got to be done. Inaction is not an option. Reform – significant reform, not just tinkering – is an urgent and imperative necessity, even if, initially, it should be incremental. In the first instance, the most immediately effective way of moving forward is by rule changes to take advantage of section 12(4). Appendix (statutory precedents) Judicial Proceedings (Regulation of Reports) Act 1926 1(1)     It shall not be lawful to print or publish, or cause or procure to be printed or published –    (b)       in relation to any judicial proceedings for dissolution of marriage, for nullity of marriage, or for judicial separation, or for the dissolution or annulment of a civil partnership or for the separation of civil partners, any particulars other than the following, that is to say:— (i)         the names, addresses and occupations of the parties and witnesses; (ii)        a concise statement of the charges, defences and countercharges in support of which evidence has been given; (iii)       submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon; (iv)       the summing-up of the judge and the finding of the jury (if any) and the judgment of the court and observations made by the judge in giving judgment … Children and Young Persons Act 1933 47(2)   … No person shall be present at any sitting of a youth court except— (a)        members and officers of the court; (b)       parties to the case before the court, their legal representatives, and witnesses and other persons directly concerned in that case; (c)        bonâ fide representatives of newspapers or news agencies; (d)       such other persons as the court may specially authorise to be present: 49(1)   No matter relating to any child or young person concerned in proceedings to which this section applies shall while he is under the age of 18 be included in any publication if it is likely to lead members of the public to identify him as someone concerned in the proceedings. (2)        The proceedings to which this section applies are— (a)        proceedings in a youth court; (b)       proceedings on appeal from a youth court (including proceedings by way of case stated); … (3)        In this section “publication” includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public (and for this purpose every relevant programme shall be taken to be so addressed) … (3A)     The matters relating to a person in relation to which the restrictions imposed by subsection (1) above apply (if their inclusion in any publication is likely to have the result mentioned in that subsection) include in particular— (a)        his name, (b)       his address, (c)        the identity of any school or other educational establishment attended by him, (d)       the identity of any place of work, and (e)        any still or moving picture of him. (4)        For the purposes of this section a child or young person is “concerned” in any proceedings if he is— (a)        a person against or in respect of whom the proceedings are taken, or (b)       a person called, or proposed to be called, to give evidence in the proceedings. (11)     In this section— … “picture” includes a likeness however produced; “relevant programme” means a programme included in a programme service, within the meaning of the Broadcasting Act 1990; Magistrates’ Courts Act 1980 65(1)   In this Act “family proceedings ” means proceedings under any of the following enactments, that is to say— … (n)       the Children Act 1989 … 69(2)   In the case of domestic proceedings in a magistrates’ court other than proceedings under the Adoption Act 1976, no person shall be present during the hearing and determination by the court of the proceedings except— (a)        officers of the court; (b)       parties to the case before the court, their solicitors and counsel, witnesses and other persons directly concerned in the case; (c)        representatives of newspapers or news agencies; (d)       any other person whom the court may in its discretion permit to be present, so, however, that permission shall not be withheld from a person who appears to the court to have adequate grounds for attendance. (3)        In relation to any domestic proceedings under the Adoption Act 1976, subsection (2) above shall apply with the omission of paragraphs (c) and (d). (4)        When hearing domestic proceedings, a magistrates’ court may, if it thinks it necessary in the interest of the administration of justice or of public decency, direct that any persons, not being officers of the court or parties to the case, the parties’ solicitors or counsel, or other persons directly concerned in the case, be excluded during the taking of any indecent evidence. 71(1)   In the case of family proceedings in a magistrates’ court (other than proceedings under the Adoption Act 1976) it shall not be lawful for a person to whom this subsection applies— to print or publish, or cause or procure to be printed or published, in a newspaper or periodical, or [broadcasting] any particulars of the proceedings other than such particulars as are mentioned in subsection (1A) below. (1A)     The particulars referred to in subsection (1) above are— (a)        the names, addresses and occupations of the parties and witnesses; (b)       the grounds of the application, and a concise statement of the charges, defences and counter-charges in support of which evidence has been given; (c)        submissions on any point of law arising in the course of the proceedings and the decision of the court on the submissions; (d)       the decision of the court, and any observations made by the court in giving it. (1B)     [Those to whom subsection (1) applies] (2)        In the case of family proceedings in a magistrates’ court under the Adoption Act 1976, subsection (1A) above shall apply with the omission of paragraphs (a) and (b) and the reference in that subsection to the particulars of the proceedings shall, in relation to any child concerned in the proceedings, include— (a)        the name, address or school of the child, (b)       any picture as being, or including, a picture of the child. and (c)        any other particulars calculated to lead to the identification of the child. Children Act 1989 97(2)   No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify— (a)        any child as being involved in any proceedings before the High Court or the family court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child; or (b)       an address or school as being that of a child involved in any such proceedings. (5)        For the purposes of this section— “publish” includes— (a)        include in a programme service (within the meaning of the Broadcasting Act 1990); (b)       cause to be published; and “material” includes any picture or representation. [1]                This is not to depreciate two excellent books whose study is fundamental to the issues: Doughty, Reed and Magrath, Transparency in the Family Courts: Publicity and Privacy in Practice, Bloomsbury Professional, 2018, and Bellamy, The ‘Secret’ Family Court: Fact or Fiction?, Bath Publishing, 2020. Both, of course, are much more up to date, but, as their titles indicate, their purpose is in each case rather different. Also valuable, especially for its common law perspective, is Burrows, Open Justice and Privacy in Family Proceedings, The Law Society, 2020. [2]                In July 2006, Confidence and confidentiality: Improving transparency and privacy in family courts, CP11/06; in March 2007, Confidence and confidentiality: Improving transparency and privacy in family courts – Response to Consultation, CP(R)11/06; in June 2007, Confidence & confidentiality: Openness in family courts – a new approach, CP10/07; and, in December 2008, Family Justice in View, CP(R)10/07 (in relation to which the Lord Chancellor made an oral statement in the House of Commons on 16 December 2008).  [3]                See, for example, paras 112, 121, 129 and 130 in the context of the surely important distinction between an application for permission to see the documents (without the documents going into the public domain) and an application for permission to publish the documents. [4]                The successful appeal against the original order by a Circuit Judge in the care proceedings is Re M (A Child: Care Proceedings) [2018] EWCA Civ 240, [2018] 2 FLR 690. The successful appeal by journalists against the egregiously defective grant by a DFJ of a reporting restriction order is R (A Child) [2019] EWCA Civ 482. [5]                For example, a 16-year-old child in care who wants to speak out about the family court proceedings, or a 16-year-old child in private law proceedings who wants to talk about their perception of a court case that ended up with them living with an abusive parent. [6]                The Circuit Judge sitting in the family court who was so heavily criticised by the Court of Appeal in In re S-W (Children) (Care Proceedings: Case Management Hearing) [2015] EWCA Civ 27, [2015] 1 WLR 4099, was subsequently subject to disciplinary proceedings, in which he was formally reprimanded for “serious misconduct”. Incidentally, the judge had previous ‘form’: see Re S (Authorising Children’s Immediate Removal) [2010] EWCA Civ 421, [2010] 2 FLR 873, Re P (A Child) [2014] EWCA Civ 888 and Re A (Children) [2015] EWCA Civ 133. None of this would have come to light but for the appeals exposing the judge’s behaviour. Featured image: Privacy, by ESB Professional, via Shutterstock.
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Family Law Week: Government responds to inquiry into child sexual abuse in secure children’s homes

Home > News Government responds to inquiry into child sexual abuse in secure children’s homes The government has responded to the Independent Inquiry into Child Sexual Abuse (IICSA) custodial institutions report about placement in secure children's homes (SCHs). The government is of the view that, in light of the research findings, the practice of placing children in mixed justice and welfare homes does not create or exacerbate systemic risk and is therefore not proposing to explore alternative models. It says that there is no conclusive evidence to show that there is an increased risk of sexual abuse to children as a result of being placed in a mixed SCH, and the government is of the view that there are robust safeguarding measures in place to protect children from harm. Ofsted judgements show that SCHs generally provide a higher quality of care than other youth justice secure settings, as recognised by the Children's Commissioner, and government's ambition for the youth secure estate is that all children are accommodated in smaller units that provide child-focussed integrated services. For the response document, click here. For the inquiry report, click here. 9/5/21
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Family Law Week: Re F & G (Discharge of Special Guardianship Order) [2021] EWCA Civ 622

Home > Judgments Re F & G (Discharge of Special Guardianship Order) [2021] EWCA Civ 622 The Court of Appeal confirmed that a special guardianship order can co-exist with a care order and remitted for re-hearing the question of whether or not the SGO in this case should be discharged. ___ Background The mother (M) of twin girls born in 2010 formed a relationship with K during the pregnancy and the girls grew up believing him to be their father; they had no contact with their biological father. M and K later married, divorcing in 2017. After M formed a relationship with a violent man, the LA issued care proceedings, placing the children with K under ICOs in April 2019. K was assessed as having extremely low cognitive ability and although he coped well with the children he needed considerable support. An SGO assessment was positive; despite his learning disability he had evidenced his ability to meet the children's emotional needs. At the final hearing of the care proceedings in April 2020 all parties agreed to the making of an SGO in favour of K and a full care order to the LA. No judgment was delivered giving the reasons for this outcome. The placement with K broke down a few weeks later and the LA gave notice of their intention to remove the children to foster care. K applied to discharge the care orders and unsuccessfully applied for an injunction preventing the girls' removal. Following the children's placement with foster carers the LA initially sought the discharge of the SGO on the basis that K no longer needed PR. By the final hearing however the LA and guardian thought the SGO should remain in place despite there being no plan for the children to return to K. M had, without the necessary permission, filed an application to discharge the SGO. Rather than considering whether the test for permission was met the judge heard argument about whether the SGO should remain in place on the basis of the court's power pursuant to s14D(2) CA 1989. He refused to discharge the SGO but attached a condition limiting K's power to seek information from third parties while the care order was in force. The appeal The first ground was that SGOs and care orders cannot exist in law. This was rejected because the amendments to the Children Act 1989 made when SGOs were introduced clearly do allow for this situation: • S91 makes it crystal clear that an SGO is not automatically discharged by the making of a final care order. • S33(3)(b)(i), as amended, allows a LA to determine the extent to which a "parent, guardian or special guardian" may exercise PR when a care order is in force. This demonstrates Parliament's intention that an SGO could continue after the making of a care order. • The provisions of s14D which entitle a LA designated in a care order to apply for the discharge of an SGO would be pointless if a care order operated to discharge a pre-existing SGO. The SGO must continue unless and until discharged. • SGOs are intended to provide long-term support for the child and it would be contrary to the purpose of special guardianship if SGOs came to an end automatically on the making of a care order; whether or not they should remain in force depends on the circumstances and must be decided in accordance with the child's welfare. The second ground, that the judge was wrong to refuse to discharge the SGO, raised more complex issues. There were welfare arguments in both directions. The judge had been particularly concerned that the children should maintain links with K, who had been treated as their father and was an important person in their lives. He worried that over time the LA might cease to communicate with him and his relationship with the children could be undermined. His attention was not drawn to an option which emerged during the appeal hearing, namely to make an order for contact under s34(2) and to invite the LA to amend its care plan to contain an express provision that K fell within the category of persons identified in s22(4), namely a person whose wishes and feelings it considered relevant when making decisions about all matters concerning the children's future. A well drafted care plan could have provided substantial protection for the children's relationship with K and his involvement in decision-making. The CA was uneasy about allowing a decision to stand that had been arrived at "after an unsatisfactory process without full consideration of the options". Accordingly the decision was set aside and the matter remitted to the trial judge for rehearing. The third ground, that the condition imposed on the SGO was wrong in law and in principle, did not require detailed consideration given the decision on ground 2, but would have been dismissed. Case summary by Gill Honeyman, Barrister, Coram Chambers For full case, please see BAILII
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Special Guardianship Order AND a Care Order

Special Guardianship Order AND a Care Order | Children In Law | Scoop.it
This is going to be a bit niche.If you want to read a blog post with wider applicability, may I point you towards Wellbeing fatigue / Pink Tape instead This case is about a curious wrinkle in the Children Act 1989, where the making of a Special Guardianship Order automatically discharges a Care Order…...
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Bloomsbury Professional Family Law Conference – Children Law – Bloomsbury Professional Law

Bloomsbury Professional Family Law Conference – Children Law – Bloomsbury Professional Law | Children In Law | Scoop.it
Following the positive response we received to our third Family Law Conference last year – our first to be held virtually – in 2021 we will continue to run the conference as a virtual event, but in order to provide more focus on the topics covered we have decided to host these as two half day events. Our Children Law half day online conference will be chaired by HHJ Reardon and include topics such as the 1996 Hague Convention, International child abduction and asylum, Parental Alienation and Domestic abuse in the family courts 20 years after Re: L. We have a fantastic line up which includes 6 silks – Richard Harrison QC, Mark Twomey QC, Professor Jo Delahunty QC, Barbara Mills QC, Charles Hale QC and Teertha Gupta QC, and they will be joined by Alex Laing, Amy Rowe and Tammy Knox. To order your ticket simply click on the ‘Buy Your Tickets’ button to the right to be taken to our Eventbrite page. If you would prefer to be invoiced for payment please click on ‘Invoice Me For Tickets’. Our second event – Current Issues – will take place on 15 September, and if you would like to attend both events, please contact [email protected] to benefit from multi-ticket discounts.
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Fairness to birth parents in adoption hearings | The Transparency Project

Fairness to birth parents in adoption hearings | The Transparency Project | Children In Law | Scoop.it
This case was an application by a birth mother for permission to appeal against a decision in the High Court that had refused her leave to apply to oppose an adoption order – Re S (A Child) [2021] EWCA Civ 605. Basically, she is asking the Court of Appeal to say the High Court judge was wrong not to let her try to stop the adoption process in respect of her child, Z, who is living with prospective adopters following a placement order that authorises the local authority to place him for adoption. We have written about this type of application in other cases. There is an explanation by Jack Harrison here The mother will have to show she is likely to persuade a court that circumstances have changed to the extent that it would not be in Z’s welfare for him to be adopted. Her chances look slim because she had earlier failed in a similar application to try to revoke the placement order. (See this process also explained in Jack’s post above.) This particular judgment however does not go into any detail about the facts she is hoping will give her a chance of stopping the adoption. All the Court of Appeal looked at was the fairness of the hearing where her application for leave was refused. There were some procedural problems. Background In February 2018, the local authority had applied for care orders in respect of Z and his siblings. Care orders were made in February 2019 plus a placement order in respect of Z. He was placed with the adoptive applicants in September 2019. Z’s mother’s application for leave to oppose their adoption application was heard in November 2020, after numerous other applications and hearings. Her application was dismissed by HHJ Jack, but all the earlier proceedings had been conducted by HHJ Heaton, who had subsequently retired. Unfortunately, there was no transcript of HHJ Heaton’s judgment when he granted the care orders and the placement order for Z. One can see that it was therefore not straightforward for HHJ Jack to ascertain the extent to which the mother’s circumstances had changed since the previous judge had made the placement order, and subsequently refused her leave to revoke that order. HHJ Jack also considered whether, if her circumstances had sufficiently changed, she would be successful in persuading the court that it was not in Z’s welfare to be adopted. He relied heavily on a social work report, ‘the Annex A report’, that he said was comprehensive and very positive indeed about Z’s placement. Therefore, the likelihood of it being in Z’s welfare not be adopted was low. An Annex A report is defined in the Family Procedure Rules as a report on the suitability of the adoptive applicant and it contains a huge amount of detail, some of which would need to be kept from other parties i.e. Z’s mother. Z’s mother argued that there were procedural flaws in due process because: 1. HHJ Jack did not have full information from the hearing with HHJ Heaton and 2. She had not read the Annex A report herself so did not have full details of the document he placed so much weight on. I suspect that a lay person would be shocked at the lack of any written record of a judgment that had placed four children in care and one for adoption. The Transparency Project and others continue to invite the Ministry of Justice to take the opportunity of remote working and the digital transformation to embed systems that provide an automatic right to transcripts for parties, and for children in later life. The Court of Appeal decision The Court of Appeal were surprised and disapproving of the local authority arguing that, because it was the mother’s application to court, it was up to her to obtain and present HHJ Heaton’s judgment for HHJ Jack. Similarly, the local authority had taken the attitude that the Annex A report was completely confidential and they could not show it to Z’s mother. The Court pointed out that Family Procedure Rule 14.13 says that the court will consider releasing a confidential report to another party although probably with some sections redacted. The principle is that in adoption proceedings, birth parents are entitled to see all documents presented to the court. This hearing took place in April 2021; the application for leave will have to be reheard in the High Court. Z’s birth family have already been involved in proceedings for more than three years and his potential adoptive family for nearly two. Lady Justice Macur concluded: 44. Before leaving this judgment, and whilst implicitly critical of the process he adopted, I think it pertinent to note that HHJ Jack, although unfavourable to the mother’s application, clearly dealt with her compassionately and was understandably pragmatic in his approach. His recital of the law was irreproachable, and he addressed the welfare of Z appropriately. He was obviously acutely conscious of Z’s predicament (including the urgency of the decision on his future) and no doubt of the prospective adoptive parents too. His ‘conversational’ style of judgment of which the mother complained in her application for permission to appeal, but more likely described as such by her McKenzie friend in the court below, was an attempt to reassure her that he recognised the strength of her commitment to Z and that her child was well placed. It is his commendable transparency in approach in disclosing that which he had not seen, and that which he had, that provides the vehicle for this successful appeal, but it is appears that in his obvious concern to be fair to all concerned he did not appreciate the significance of the points to which I have referred. 45. When announcing our decision to allow the appeal, we explained to the mother, and she confirmed that she understood, that the hurdles she faces in seeking leave to oppose the adoption are high ones. The outcome of the rehearing may be the same but, if so, this must be the result of a fair hearing in which the necessary documents are before the court and she has an opportunity to make her case . What is more, it is as much in the long-term interests of Z that any decision regarding his future should be free from taint So it appears that HHJ Jack’s attempts to explain the situation clearly and compassionately to reassure the birth mother she had done all she could, may have had the opposite effect. However, the Court of Appeal’s closing words are consistent with settled law that makes it difficult to see how birth parents could succeed in preventing an adoption order at this stage.
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POLICY REPORT & CASE STUDY: Intrafamilial Child Torture - A Distinct Category of Child Maltreatment

POLICY REPORT & CASE STUDY: Intrafamilial Child Torture - A Distinct Category of Child Maltreatment | Children In Law | Scoop.it
This policy report is one of a seven part series on the topic which illustrates how ICT differs from other forms of child maltreatment.
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PRACTICE DIRECTION 1A – PARTICIPATION OF VULNERABLE PARTIES OR WITNESSES

This practice direction supplements CPR Part 1 1. The overriding objective requires that, in order to deal with a case justly, the court should ensure, so far as practicable, that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence. The parties are required to help the court to further the overriding objective at all stages of civil proceedings. 2. Vulnerability of a party or witness may impede participation and also diminish the quality of evidence. The court should take all proportionate measures to address these issues in every case. 3. A person should be considered as vulnerable when a factor – which could be personal or situational, permanent or temporary – may adversely affect their participation in proceedings or the giving of evidence. 4. Factors which may cause vulnerability in a party or witness include (but are not limited to)— i. Age, immaturity or lack of understanding; ii.Communication or language difficulties (including literacy); iii.Physical disability or impairment, or health condition; iv.Mental health condition or significant impairment of any aspect of their intelligence or social functioning (including learning difficulties); v.The impact on them of the subject matter of, or facts relevant to, the case (an example being having witnessed a traumatic event relating to the case); vi.Their relationship with a party or witness (examples being sexual assault, domestic abuse or intimidation (actual or perceived)); vii.Social, domestic or cultural circumstances. 5. When considering whether a factor may adversely affect the ability of a party or witness to participate in proceedings and/or give evidence, the court should consider their ability to— (a)understand the proceedings and their role in them; (b)express themselves throughout the proceedings; (c)put their evidence before the court; (d)respond to or comply with any request of the court, or do so in a timely manner; (e)instruct their representative/s (if any) before, during and after the hearing; and (f)attend any hearing. 6. The Court, with the assistance of the parties, should try to identify vulnerability of parties or witnesses at the earliest possible stage of proceedings and to consider whether a party’s participation in the proceedings, or the quality of evidence given by a party or witness, is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make directions as a result. 7. If the court decides that a party’s or witness’s ability to participate fully and/or give best evidence is likely to be diminished by reason of vulnerability, the court may identify the nature of the vulnerability in an order and may order appropriate provisions to be made to further the overriding objective. 8. Subject to the nature of any vulnerability having been identified and appropriate provisions having been made, the court should consider ordering “ground rules” before a vulnerable witness is to give evidence, to determine what directions are necessary in relation to the nature and extent of that evidence, the conduct of the advocates and/or the parties in respect of the evidence of that person, and/or any necessary support to be put in place for that person.
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Half-time submissions (again)

Half-time submissions (again) | Children In Law | Scoop.it
This is a case where the Court was invited to consider at the close of the Local Authority case whether the Local Authority application should be dismissed without hearing from other witnesses. It was decided by Mr Recorder Howe QC sitting as a Deputy High Court Judge.
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CD v EF (Temporary Relocation) [2021] EWHC 955 (Fam)

CD v EF (Temporary Relocation) [2021] EWHC 955 (Fam) | Children In Law | Scoop.it
The father was Japanese, and the mother was Polish Canadian, currently living in England. The father applied under Article 21 of the 1980 Hague Convention for a contact order in respect of his 11-year-old son. There had been weekly telephone calls but no direct contact since 2018. The father was in substantial arrears of a maintenance pending suit order, and might face enforcement proceedings if returning to England. He proposed that contact should take place immediately in Japan. The mother's position was that it should take place initially in England before possibly, subject to the child's wishes, progressing to Japan. The Family Court Adviser raised the option of contact in France. In Peel J's view, it would be premature to make an order for contact in Japan. It would be against the son's wishes, and it was too soon to embark on such a major step. Although Japan was a Hague Convention signatory, he had no evidence as to the speed with which a return order would be made and implemented there, and the consequences for the son of being separated from his primary carer for a substantial period would be highly damaging. Peel J ordered that contact should take place in England, at first for one week in each of the summer and Christmas 2021 school holidays. The father would be ordered to lodge his passport with an appropriate firm at the beginning of each contact period. A prohibited steps order would be made preventing the father from removing the son from the mother's care (save for the purposes of contact) or removing him from this jurisdiction without her written consent. However, the making of this order would be conditional upon the mother not pursuing a judgment summons, or any other step leading to imprisonment of the father arising out of breach of the financial remedy order. If she was unwilling to give that assurance, the order would not be made in those terms. The quantum and duration of contact, and conditions, would be in the same terms, but the place of contact would be France. Judgment, published: 28/04/2021 Topics Share
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