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A (Child Abduction: Article 13b) [2021] EWCA Civ 328

A (Child Abduction: Article 13b) [2021] EWCA Civ 328 | Children In Law |
An appeal from an order for the summary return of a three-year-old child to the USA. The mother was British and alleged an abusive relationship. The father was American and denied the allegations. The mother asserted that, after having found that her allegations were of a nature to engage Art 13(b) of the 1980 Hague Convention, the judge had been wrong to grant the father's application. She also issued an application asking the court to admit further evidence. Peter Jackson LJ found that the situation portrayed in letters from the mother's GP was markedly more severe than that previously described to the extent of being capable of influencing the outcome, and he would therefore admit the evidence. The judge had directed himself meticulously and he had methodically reviewed all the evidence that was before him. However, the appeal had to be determined in the light of the further evidence concerning the mother's mental health and family support, which showed an escalation in self-harming behaviour to the point where she could not currently live alone with the child in England, let alone elsewhere. Haddon-Cave and Elisabeth Laing LJJ agreed. The return order was set aside and the father's summons under the Convention was remitted for rehearing by the judge on an expedited basis. Judgment, published: 19/03/2021 Topics Share
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This is the text of a paper by Sir James Munby (lately President of the Family Division) delivered at the Royal Holloway University of London Symposium : ‘Inequality and Rights – Contemporary Challenges in the Child Protection and Family Justice Systems before and during the Pandemic’, which was held remotely on 16 March 2021. It is reproduced with kind permission. My topic is important and topical, but time is limited so I must focus on a few key issues. I start with an obvious question: What do we mean by vulnerable? Who is vulnerable? Who is vulnerable? Before the turn of the Millennium, our understanding of vulnerability was limited. Vulnerability was not a term of art. A family lawyer if pressed might have suggested that the vulnerable included those (children and the elderly) unable to protect themselves because of their age; the physically disabled; and those who by reason of mental disorder lacked capacity to take decisions. Beyond that, the thoughtful might have identified those protected by the Domestic Violence and Matrimonial Proceedings Act 1976 and, perhaps, those protected by the equitable doctrines of undue influence and unconscionable transactions – though those were of course a matter for the Chancery Division, not usually the Family Division. But that was really as far as it went. Gradually our understanding broadened and became more sophisticated, as the judges of the Family Division were confronted with the social and domestic realities of such things as forced marriage and other forms of ‘honour-based’ violence and, a little later, female genital mutilation and transnational marriage abandonment. Unsurprisingly, the judges turned for solutions to the inherent jurisdiction.    In 2005, I said: “I would treat as a vulnerable adult someone who, whether or not mentally incapacitated, and whether or not suffering from any mental illness or mental disorder, is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation, or who is deaf, blind or dumb, or who is substantially handicapped by illness, injury or congenital deformity. This, I emphasise, is not and is not intended to be a definition. It is descriptive, not definitive; indicative rather than prescriptive.” The key concept was the linkage between vulnerability and abuse: the vulnerable are those who are, for whatever reason, susceptible to abuse.   Driven in large measure by the judges was the substitution of the comprehensively defined and more accurately re-labelled ‘domestic abuse’ in the revised PD12J, issued in September 2017, Child Arrangement and Contact Orders: Domestic Abuse and Harm, in place of the previous concept of ‘domestic violence’ This was defined as including: “any incident or pattern of incidents of controlling,[1] coercive[2] or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality.” The definition went on to explain that: “This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse including, but not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment.” This definition can be compared with that in the Domestic Abuse Bill currently at Report in the House of Lords. Clause 1(3) contains the core of the proposed definition: “Behaviour is “abusive” if it consists of any of the following – (a) physical or sexual abuse; (b) violent or threatening behaviour; (c) controlling or coercive behaviour; (d) economic abuse … ; (e) psychological, emotional or other abuse; and it does not matter whether the behaviour consists of a single incident or a course of conduct.” We have come a long way in the last twenty years. Vulnerable people in the family court What accommodation in its normal procedures does the family court make for those who are vulnerable? The family court is not as welcoming as it might be even for those who are not vulnerable. The typical litigant in the family court is in the grip of powerful emotions and worries. Those of us who spend our lives in the family court (and most of us have never been a litigant or witness in any kind of proceedings) can be ill-equipped to understand what even the most robust litigant in the family court is going through. The layout of the typical family court is unwelcoming to parents who are often banished to the back row, where they may have difficulty in hearing what is going on, are distant from and unseen by their advocate, and might be forgiven for thinking that they are mere spectators rather than centrally important. And the procedural rules and processes are incomprehensible to lay people. For the physically disabled, the realities are still grim in too many of our court buildings. Even assuming there is level access from the street for those in wheelchairs, what are they to do when, more often than should be tolerated, a critically important lift is broken down, sometimes for months waiting a missing part? Such matters are obviously important, but do not begin to address the more fundamental needs of the vulnerable. In June 2014, I set up the Children and Vulnerable Witnesses Working Group (CVWWG), chaired by Hayden J and Russell J, to examine the related issues of how the family justice system accommodates the needs of children attending court to give evidence or to visit the judge, and the needs of vulnerable witnesses and parties for special measures. As part of the latter piece of work, I asked the CVWWG to address the fact, condemned by a judge of the Family Division as long ago as 2006, that in the family justice system we are obliged to tolerate what in the Crown Court would be forbidden: the cross-examination of an alleged victim by an alleged perpetrator. This can sometimes amount, and on occasions quite deliberately, to a continuation of the abuse, as the court has to stand by, effectively powerless, while the abuse continues in court and, indeed, as part of the court process. I have repeatedly emphasised that in these matters the family justice system lags woefully, indeed, shamefully, behind the criminal justice system. The CVWWG worked quickly, publishing its interim report in July 2014 and its final report in February 2015. The report was comprehensive and detailed in its analysis and recommendations, in particular as to the detail of the new rules and practice directions that were proposed and which, it was contemplated, would be in place by the end of 2015. Now, six years later, what has been achieved? Much has been done, but not enough and much of it too long delayed. For example, it is only surprisingly recently that the family courts have begun to get to grips with the difficulties faced by, to take two issues, the learning disabled and the deaf. For the moment I focus on: Special measures, Cross-examination, and Children. Special measures Eventually, on 27 November 2017, the Rules in FPR Part 3A Vulnerable Persons: Participation in Proceedings and Giving Evidence, and the accompanying PD3AA, took effect, implementing, in part, the recommendations of the CVWWG and the wishes of the Family Procedure Rule Committee (FPRC). This undoubtedly marked a big step forward, though it had taken over three years to get this far, but the new arrangements could, and, in my view, should, have gone further. The giveaway is to be found in Rule 3A.8(4): “Nothing in these rules gives the court power to direct that public funding must be available to provide a [special] measure.’ The inclusion of this reflected Government’s concern that proper implementation of what in the view of the FPRC was desirable would cost more than Government was prepared to commit. Much has been done, but much more still needs to be done. I was not surprised to read the criticisms in the May 2018 Report by Queen Mary University of London and Women’s Aid “What about my right not to be abused?” Domestic abuse, human rights and the family courts, of the inadequate special measures at present available in too many family courts. Much needs to be done as a matter of priority, for example, the provision of separate entrances, separate waiting areas, better screens, and audio and video links. When can we expect decisive action? And we shall have to see what difference in reality is brought about by the need for special measures now being put on a statutory footing by clause 61 of the Domestic Abuse Bill. Cross-examination In relation to cross-examination, a Government Minister gave a commitment in the House of Commons in January 2017 that there would be legislation. He said “I do not think that this is a complicated matter. It is a simple one that needs urgent action.” Four years later we are still waiting. The case for reform of this stain on our system is overwhelming. There is only one possible argument: it is the right thing to do. So why are we still waiting? I pass over the depressing history of inactivity punctuated by occasional fitful and ineffective activity. At last, on 3 March 2020, the Domestic Abuse Bill which is currently before Parliament received its First Reading in the Commons. It is still pursuing its hardly speedy passage through Parliament. Clause 63 of the Domestic Abuse Bill is intended to prohibit inappropriate cross-examination. The latest iteration is a distinct improvement on previous versions but is still deficient in some respects. Children And what, in all this time, of progress in relation to how the family justice system should meet the aspirations and accommodate the needs of the increasing number of children, particularly older children, who want to participate themselves in the process – a process which, after all, is primarily about them? There is a pressing need to meet the needs of children who want to come to court themselves, whether to see the court, to give evidence, to put over their point of view, or to meet the judge. What has been achieved? Nothing, absolutely nothing, effective, despite continuing and unrelenting pressure for change since 2014. The FPRC had worked up detailed proposals – new draft rules and a draft practice direction – but nothing can come into effect without the approval of the Minister. The Ministerial decision, set out in a letter in July 2018, made clear that approval was not going to be given because (and I quote): “these proposals cannot be implemented at the current time given their assessed operational impacts.” You may be wondering what is meant by “assessed operational impacts”. In plain English, it means it would all cost too much. The Minister acknowledged that this decision would be “disappointing”. I would use a much blunter word. The deplorable reality is that what children want and need, what their welfare demands, is, according to the Ministry of Justice, too expensive.  In adopting this stance, we are failing to meet standards which are increasingly treated as a matter of course in many other countries; indeed, we are failing to meet our international obligations under Article 12 of The United Nations Convention on the Rights of the Child. And we are failing children and their families. The fact that, even now, the Convention, although ratified by the United Kingdom, has not been incorporated as such into our domestic law, says much about our systems. And it is not a matter for pride. However, it is probably utopian to imagine that any Government within any reasonably foreseeable future will decide to incorporate the Convention in English law, not least because to do so would cost money. Why does this matter so much? The answer, I believe, is simple: we owe it to the children whose welfare is our responsibility as judges and whose futures are in our hands. There are, perhaps, two aspects to this. First, the kind of involvement by children which I advocate will undoubtedly improve the quality of our decision-making and help to reduce the chances of us getting it wrong. Secondly, how would we feel if correspondingly important decisions about us were arrived at by faceless individuals who we were not allowed to see? The way in which children are treated by the family justice system when they are not able to participate is not a practice which would commend itself to doctors and nurses treating children with serious illnesses – they know that their patients, even if children, have to be part of the process. And, perhaps most important of all, how will the child feel, years later, trying to come to terms with what may have been a life-changing decision which they feel (whether or not with justification – it matters not) might have been different if only they had been able to participate?   Is this really the best we can do? I hope not. For if it is, then we face the damning judgment of history which will, I fear, place this particular defect high on the far too long list of all that is still so desperately wrong with our family justice system. Change is necessary, and urgently, for one very simple reason: because it is the right thing to do. PD12J While all this was going on, in September 2017 I had issued the revised PD12J, accompanied by a circular which included this: “Domestic abuse in all its many forms, and whether directed at women, at men, or at children, continues, more than forty years after the enactment of the Domestic Violence and Matrimonial Proceedings Act 1976, to be a scourge on our society. Judges and everyone else in the family system need to be alert to the problems and appropriately focused on the available remedies. PD12J plays a vital part.” Unhappily, the indications are that PD12J is not working as it should, and as it must. We are waiting for a judgment from the Court of Appeal which, I fear, may make for uncomfortable reading. And the Report from the Ministry of Justice Expert Panel on Harm in the Family Courts, published in June 2020, with its shocking findings about how the system is failing vulnerable women is a wake-up call for even the most complacent. What is being done? The care system There are many problems with the care system and with that part of the Family Justice System which deals with care cases. We would do well in England to ponder Sir John Gillen’s 2017 Review of Civil and Family Justice in Northern Ireland and Chapter 7 of Justice in Wales for the People of Wales, the 2019 Report of The Commission on Justice in Wales, chaired by the former Lord Chief Justice, Lord Thomas. Vitally important is the very recently published Final Report of the President’s Public Law Working Group chaired by Keehan J. Without going into detail, the sooner its admirable recommendations can be implemented the better. But the remit of the PLWG was comparatively narrow, and I want to focus today on the bigger picture. I start with three fundamental propositions: Children in care have greater needs: Most children taken into care have suffered neglect and emotional harm. Many have suffered serious – sometimes very serious – abuse. So, their needs are greater than those of other children. They, and those looking after them, need more support, more services, than other children. The State has neither the legal nor the moral right to take a child into its care unless it can provide the child with better care. As I said as long ago as 2001, in a shocking case of two brothers ‘lost in care’: “The State assumes a heavy burden when it takes a child into care … if the State is to justify removing children from their parents it can only be on the basis that the State is going to provide a better quality of care than that from which the child in care has been rescued.” This, unhappily, is a message that can never be repeated too often. If that seems an unduly bleak and pessimistic message, consider the equally shocking state of affairs exposed in another case some 17 years later by Keehan J. It is common wisdom that children who have been in care, and particularly those who remain in care until they are 18, suffer many disadvantages in adult life, that their life chance are not what they should be and not as good as other children’s life chances. Those who have been in care are disproportionately over-represented, for example, in prisons and mental hospitals and under-represented in universities and other places of higher education. This is the basis upon which we have to address the fundamental reality, which dominates everything else: the State is failing to meet its children’s needs and failing in its moral duties. If this is thought over-dramatic, consider the shocking article in the Guardian of 11 November 2019 by the well-respected journalist and commentator Louise Tickle, We are failing children in care – and they are dying on our streets: “If one in four young adults found themselves homeless once they turned 18, with 14% sleeping rough, we’d be asking where the hell their families were. But these figures are the reality for young care-leavers.” The current prevalence of rough sleeping, as of food banks, is an indictment of how society treats its most vulnerable. It is deeply troubling that it took the anguished pleading of a prominent footballer to rouse the conscience of the nation in relation to school meals and to drive the Establishment to action. Tickle quoted the then children’s commissioner Anne Longfield: “It seems unbelievable that you could take the most vulnerable kids and put them into independent living without a package of support.” Who could possibly disagree? And why is this? Essentially, because local authorities and the family justice system are unable to cope with the increasing numbers of children in care. Why? Because of budgetary constraints and lack of resources. But there are many other problems. First, there are structural problems: There are wide variations (national, regional and local) in what local authorities and family courts are doing. There is a fractured / divided court structure: eg, separate courts for family, criminal and migrant cases involving children. Family courts are not sufficiently focused on problem-solving: there is a pressing need for the expansion of FDAC to cover the entire country, to put an end to the present desperately unfair postcode lottery, and, more generally, to extend the concept of problem-solving cross the family courts. The inability of court to direct provision of resources / services. Second, there are systemic failings: There is often inadequate planning / monitoring of the child’s journey through the local authority care system: before, during and after court involvement. There is often inadequate pre-proceedings work: both in diverting cases away from court and in preparing cases properly for court. A serious re-vamp of the failing IRO (independent reviewing officer) system is essential. Although there have been some local successes, the overall picture is of a system which has never worked as effectively as was hoped and as it must if it is to achieve its vitally important objectives. We must make a reality, rather than an empty promise, of the entire ‘leaving care’ system, essential to enabling children in care to transition into adult life but still too often a matter of mere rhetoric rather than practical help. Third, there are failings in relation to the family: Sibling relationships are immensely important, and for two quite separate reasons: The sibling relationship lasts longer than any other; and though it inevitably changes down the years, as the sibling group grows older, moving from childhood, into adulthood and then into old age, it is immensely important, rewarding and enriching. Secondly the sibling relationship means that children can have proper relationships – which again will last through the decades – with their cousins.  Does the care system do enough to maintain, nurture, support and sustain sibling relationships? I have very real doubts. A pervasive problem, affecting far too many children, is the unfair treatment of kinship carers. There is serious inadequacy in the financial, professional and other support available to too many kinship carers and to the children they are looking after – in stark contrast to the support available to foster carers and adoptive parents. This justifiably concerns and angers many of the carers. They can be forgiven for feeling exploited, and in a way that can only be detrimental to the welfare of the children they are caring for. Providing the financial and other support that kinship carers so desperately need is an intractable problem. Substantial increases are essential in the funding made available by central Government to local authorities, which are under-resourced and gravely over-stretched. One of the most depressing aspects of the system is the assumption that, in relation to support, kinship carers should be treated in the same way – no better, no worse – than the parents of any child living at home. This is wrong, and for two different reasons: Kinship carers are not parents: often they are required to take over the care of children at short notice and, as in the case of grandparents, with unsuitable accommodation and inadequate resources. Children who have passed through the care system into kinship care typically have greater needs than other children: they, and their kinship carers, need more support, more services, than other children.  Fourth, too many children in foster care experience unacceptable instability: over-frequent moves between foster carers and lack of continuity of social worker.   Finally, and worst of all, there are even more serious failings in relation to the children themselves. It is, unhappily, notorious that the State – I say the State, for local authorities are not provided with financial support sufficient to meet their needs and the needs of the children for whom they are responsible – is failing far too many of the children in its care. These serious failings are the subject of increasing concern and frustration by judges (as their published judgments continue so vividly to illustrate) and increasing criticism in the media. Let me give three examples – no doubt there are others – of what I do not shrink from saying are serious failings by the State, failings which increasingly put into question our right to call ourselves civilised and compassionate. I take them in no particular order: First, there is the serious lack of adequate provision, residential and non-residential, for the increasing numbers of children with mental health difficulties. Secondly, there are the increasing difficulties in finding suitable secure accommodation and other therapeutic resources for some of our most troubled children. Judges, in desperation, find themselves, far too often, having to put damaged children in unsuitable placements which are: unregulated; far too far away from the child’s family and other support systems; and/or outside the jurisdiction, in Scotland. Thirdly, there is the scarcity of suitable housing accommodation available for young people in care or as they transition out of the care system into adulthood. In relation to this, we need look no further than the judgment of His Honour Judge Dancey sitting at Bournemouth in Dorset Council v A (Residential Placement: Lack of Resources) [2019] EWFC 62, a shocking case accurately epitomised by a journalist as the grim story of a child passed around the local authority care system like a bag of potatoes, ending up in a caravan park. I need not repeat the distressing details of a truly terrible case. What I should set out, however, are the considered conclusions of this very experienced judge, the Designated Family Judge for Dorset: “It is my experience in Dorset that the number of vulnerable young people who need to be looked after or otherwise supported by the local authority is increasing. There are growing concerns around child sexual exploitation, County Lines and other forms of criminal exploitation as risks for these young people … The problems are huge. That is why I have told A’s story.” Only someone with a heart of stone could read Judge Dancey’s judgment without wanting to weep or to rage. He also draws attention to the growing and deeply worrying ‘County Lines’ problem and other ways in which children are being criminally exploited. Is the system really geared up to dealing with this criminality effectively? Thus far the response of Government has been to propose banning the use of unregulated accommodation. But how is that going to help, when the fundamental problem is the absence of suitably regulated accommodation? What is wrong with us?  Sadly, far too much of this seems to fall on deaf ears. What all this illustrates is the shameful lack of housing and other resources which impacts so adversely upon some of the most vulnerable in our society. It is a commonplace that we live in an era of austerity. But however great the temptation, in or out of Whitehall, to use this as a convenient explanation for the serious problems currently facing us, the truth is bleaker and more profound. For these problems have their roots in policies, seemingly shared by Governments of whatever political stripe, long pre-dating the banking collapses and ensuing financial crisis of 2008. And although the problems afflicting the vulnerable have been made much worse – often very much worse – by the pandemic, none of these problems has been created by it. What the pandemic has done is to shine a powerful searchlight on to the unnecessarily damaged lives of too many of our most vulnerable people and children – but what action is being taken in response?   We are, even in these times of austerity, one of the richest countries in the world. Our children and young people are our future. As is often said, one of the measures of a civilised society is how well it looks after the most vulnerable members of its society. If this is the best we can do, what right do we, what right do the system, our society and indeed the State itself, have to call ourselves civilised? The honest answer to this question should make us all feel ashamed. What is to be done? Many things need to be done – and urgently. I mention just three. First, we need much more research into and analysis of what is going on in the care system including research into what we know are very significant national, regional and local variations between different local authorities and different family courts. Such research would enable us better to understand, as an essential precursor to improving the system: what is going on and why; the child’s journey through the care system and beyond – both individual children and children generally; and the impact on the child’s journey of such things as ethnicity, deprivation (in all its forms), and the legal framework which has been put in place. This research will be invaluable not merely for policy-makers but also for decision-makers. The new partnership between the Nuffield Foundation’s Family Justice Observatory and the SAIL database at Swansea University will transform our ability to conduct such research and analysis. No longer will research be confined to selected case-files; whole system analysis will become possible. At the same time, local authorities, the courts and others need to make much more use of data science and data visualisation tools. Fundamentally, however, we need a drastic increase in the resources necessary if these problems are to be tackled effectively; but given the lack of compassion and political will in our society, how likely of achievement is this in contemporary Britain? This is not a cry for some distant and unachievable utopia. It is a call for decency, humanity and compassion to be afforded their proper place in a very affluent society so that this affluent society can properly claim the right to be called civilised. If we, as a society, are not prepared to provide the necessary resources, then we face a very stark, and fundamentally moral, question: How can we go on as we are at present? On one view there are, objectively analysed, too many children in the care system – how, after all, can we explain, let alone justify, the astonishing increase in the care population over the last ten years since, I emphasise, the Baby Peter ‘spike’? Indeed, only last weekend an interview in the Sunday Times with Isabelle Trowler, the Chief Social Worker, was headlined Too many children wrongly taken into care, admits chief social worker. Be that as it may, it is surely indisputable that the present systems – both the local authority systems and the court processes – are incapable of dealing properly, and in a manner compatible with children’s welfare, with the current numbers of children in the system. If society is not willing to provide us with adequate resources, should we not be significantly reducing the number of children we bring into a failing system, so that those reduced numbers might actually benefit from a system which would then be able to cope? Should we not be considering, for example, how to re-set ‘threshold’, not as a matter of statute but as a matter of understanding and practice? [1]                Defined as meaning “an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.” [2]                Defined as meaning “an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim.” Feature pic : listen by Jay Morrison on Flickr creative commons – thanks!
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We’re launching a once in a generation “Beveridge Report for children” with an ambitious call to rebuild childhood after the Covid-19 pandemic

We’re launching a once in a generation “Beveridge Report for children” with an ambitious call to rebuild childhood after the Covid-19 pandemic | Children In Law |
Dame Rachel de Souza, Children’s Commissioner for England, is today (Tuesday) launching a once-in-a-generation review of the future of childhood by the Children’…...
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Too many children wrongly taken into care, admits chief social worker Isabelle Trowler | News | The Sunday Times

Too many children wrongly taken into care, admits chief social worker Isabelle Trowler | News | The Sunday Times | Children In Law |
Babies and children are still being removed from families unnecessarily, according to the chief social worker for children and families in England.Isabelle Trowler, 53, said social work needed “a...
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Family Law Week: Adoption and Children (Coronavirus) (Amendment) Regulations 2021

Home > News Adoption and Children (Coronavirus) (Amendment) Regulations 2021 These regulations, which come into force on 30th March 2021, have been made "in order to continue to assist the children's social care sector during the coronavirus pandemic". Regulation 2(2) amends Her Majesty's Chief Inspector of Education, Children's Services and Skills (Fees and Frequency of Inspections) (Children's Homes etc) Regulations 2015 (the 2015 Regulations) to reduce certain fees payable under Parts 2, 3 and 4 of those Regulations. In particular, they decrease the fees that are payable to the Chief Inspector in respect of registration of voluntary adoption agencies, adoption support agencies, children's homes and residential family centres; and variation of registration of those establishments and of fostering agencies. They also decrease the annual fees payable by the above establishments and agencies as well as those payable by boarding schools, residential colleges and residential special schools. Regulation 2(3) and (4) amend the approved places threshold (see regulation 2 of the 2015 Regulations for the definition of "approved place") set out in the 2015 Regulations. Once this threshold has been exceeded, the relevant institution is obliged to pay a higher annual fee. Regulation 2(3)(a) to (c) increases the approved places threshold for residential colleges from between 4 – 10 places to 4 – 11 places. Regulation 2(3)(d) to (f) increases the approved places threshold for residential special schools from between 4 – 15 places to 4 – 17 places. Regulation 2(4) increases the approved places threshold for children's homes from between 4 – 25 places to 4 – 29 places. Regulation 3 amends regulation 14 of the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 to provide that the amendment made by regulation 12 of those Regulations ceases to have effect at the end of 30th September 2021. Regulation 12 omits regulation 27 of the 2015 Regulations which sets out the minimum frequency by which premises must be inspected. Regulation 4 extends the amendments made by the Adoption and Children (Coronavirus) (No.2) Regulations 2020 until the end of 30th September 2021. Regulation 5 revokes Her Majesty's Chief Inspector of Education, Children's Services and Skills (Fees and Frequency of Inspections) (Children's Homes etc.) (Amendment) Regulations 2020. Given the ongoing pressures faced by certain children's social care providers caused by the pandemic, all the changes made by that instrument in relation to fees payable by those providers to Her Majesty's Chief Inspector of Education, Children's Services and Skills have been reversed through regulation 2(2) to (4) of these Regulations. The Secretary of State must still review the effectiveness of the continued limited amendment made by the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 and of the continued amendments made by the Adoption and Children (Coronavirus) (Amendment) (No.2) Regulations 2020 for the period they remain in effect. For the latest Regulations, click here. 14/3/21
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Family Law Week: Re H (Children: Findings of Fact) [2021] EWCA Civ 319

Home > Judgments Re H (Children: Findings of Fact) [2021] EWCA Civ 319 Appeal against findings that the father sexually abused his daughter and step-daughter. Detailed examination of the trial judge’s reasoning. Appeal dismissed. ___ Background The case concerned four siblings. X was the father of 3 of the children. He spent significant parts of the decade in prison.   D, born 2010, made allegations of sexual abuse against her father, X, in 2017 but retracted them soon after. At that time, the SW and police had doubts about her evidence and no proceedings were brought. In December 2019, following two incidents of non-sexual domestic abuse, all four children were removed to foster care.  During supervised contact on 24 December 2019, D had a conversation with MGM in which she mentioned abuse by X. On 25 December 2019, D made new allegations of sexual abuse to the foster carer.   On 1 and 7 January 2020, R, born 2013, made allegations to the foster carer of sexual abuse by X (her step-father).  Both children gave ABE interviews.  In her ABE, D said the 2017 allegations had been true.  X denied the allegations.   Fact Finding  It had been determined pre-trial that D and R would not give evidence. A 'hybrid' fact finding hearing took place. HHJ Cove read 4927 pages of materials and watched the ABE interviews at least three times. Edis LJ observes that the judge conducted a conspicuously careful and thorough hearing: she is to be congratulated for ensuring the witnesses were fairly heard and tested.  HHJ Cove was required to determine 11 allegations: she made findings that X had sexually abused D and R in 2019; and made findings of aggressive behaviour by X in December 2019, including of physically assaulting mother and D.  The sexual abuse allegations were based entirely on the evidence of D and R. D made detailed allegations about X's aggressive behaviour, which the parents initially disputed. However, D's account was true and was corroborated by independent evidence, including CCTV.  HHJ did not find D's allegations that X sexually abused her prior to 2017 to be proved.  Nor did she find that the mother had been present when X abuse D and R, which both children had alleged, or that the mother had failed to protect them from sexual abuse.  She found that the mother had failed to protect the children from domestic abuse and that the mother's difficulties had led her to neglect the children and to fail properly to supervise their time with X, knowing he was aggressive and violent. Appeal X appealed the findings of sexual abuse only.  He contended that the judge had failed to give proper weight to a number of factors and had not 'addressed' certain matters.  These included D's retraction in 2017, that D may have learnt about sexual behaviour from pornography, possible collaboration or influence of D upon R, D's reliability/credibility, R's credibility as she alleged her younger brother had been abused but he made no such complaint, and R's consistency.    Edis LJ gives the lead judgment.  He sets out the background and the role of the appellate court in factual appeals. The court will not lightly interfere with findings of fact. He observes that a challenged based upon suggested insufficiency of reasons for reaching a factual conclusion is not an easy one to sustain.  He refers to Re O (A Child: adequacy of reasons) [2021] EWCA Civ 149 in which the court recently restated the necessity for reasoned conclusions; and Re JB (A Child: sexual abuse allegations) [2021] EWCA Civ 46, in which the court reviewed the guidance on the conduct of ABE interviews. HHJ Cove's judgment is examined in detail and significant sections are extracted.  Her review of the evidence was comprehensive and mentioned almost all the matters that X contended she had failed to address or to give sufficient weight.  The judge's findings were presented as a series of conclusions rather than a reasoned process, in which arguments are addressed and accepted or rejected. Much of the thought process is not set out expressly in the findings but is implicitly there.  The judgment would have been clearer if the conclusions included short passages explaining why factual observations made in the judgment lead to the results stated.  X's best point was in relation to the 2017 allegations, which had been retracted and seemed inherently implausible.  HHJ Cove set out her observations that the 2017 allegations were inconsistent and she could not on the balance of probabilities find that they were true. However, she did not find that they were lies.  Edis LJ notes that a few additional sentences of explanation in the judgment would have assisted greatly.    The principal issue was whether the account given by D and R in their ABE interviews were reliable. It is a pure question of fact. When the judge found herself unable to accept the parents' answers for reasons she explained, it was open to her to accept the truth of the ABE interviews if she found them persuasive.  Conclusions The function of the reasons is to explain how the decision has been arrived at, not to list the obviously unimportant things which have not influenced the outcome. Where there is a substantial point or piece of evidence which points away from the judge's finding, the judgment should address it and explain the approach to it.  There is no harm in a judge failing to mention a submission which has struck them as so obviously unsustainable that it does not deserve an answer.  However, it is incumbent on a judge who has reached a particular conclusion to identify the best points which have been made in opposition to it, and to explain why they have not prevailed. While the judge plainly had the father's case firmly in mind and the reasons for rejecting it can be found in the judgment, tackling the case more directly would have made the judgment clearer and less susceptible to challenge.  Edis LJ identifies points that the judge should have addressed specifically.  However, it was not sufficient to reverse the judge's findings. Appeal dismissed.  Case summary by Victoria Roberts, Barrister, Coram Chambers For full case summary, please see BAILII
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Family Law Week: New public law cases received by Cafcass fell by 2 per cent in February

Home > News New public law cases received by Cafcass fell by 2 per cent in February Cafcass received a total of 1,374 new public law applications (involving 2,139 children) in February – 27 applications (1.9 per cent) fewer than in the same month last year. The number of children featured in the cases fell from 2,323 children in February 2020. For the month-by-month figures for public law applications, click here. 14/3/21
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Should a journalist be able to see all the court papers behind a flawed decision that a child should be adopted? Marshalling the arguments | The Transparency Project

Should a journalist be able to see all the court papers behind a flawed decision that a child should be adopted? Marshalling the arguments | The Transparency Project | Children In Law |
Last week the Court of Appeal heard journalist Melanie Newman’s appeal against an order against disclosure of the court papers behind a flawed decision that a young child should be adopted (subsequently overturned by the Court of Appeal with the child going home). I wrote briefly about the appeal here in the lead-up to the hearing. Southampton City Council (The Council) and the child’s Cafcass Guardian opposed the appeal. The mother consented to the Journalist seeing all the papers and supported the appeal (though she was not a party). The judgment /decision under appeal can be found here. The Court of Appeal had granted permission to appeal because it raised the following matter of significant public interest: The balance as between Article 8 and Article 10 where a responsible journalist seeks access to court papers; including consideration of the approach of the court to the Article 8 interests of a young child where a person with parental responsibility wishes to consent to full disclosure of all the court papers on behalf of the child, the subject of the proceedings.’ The appeal hearing was live-streamed last Thursday, and you can watch it in full here. Journalists attending were provided with the written arguments in which the parties set out the basis of their positions on the day, but were not permitted to share or publish these. (I was also given permission on request to share them and the Reporting Restrictions Order with the Editors at the Transparency Project). The agreed time-table allowed the morning for the Appellant and a short afternoon slot for the submissions for the Council, Guardian and then the Appellant’s reply. So, while the public heard quite a bit of the case in support of the papers being shared with the journalist, they neither heard nor read anything much of the arguments against the appeal. The published judgment will capture both written and oral arguments, and will therefore help to provide a more balanced overview. But if the court is to live stream a hearing it would make sense to either publish the written arguments from each side, or allow reporters to do so. This blog post highlights some of the basic areas of disagreement between the parties to the appeal, with reference to some of the material from the skeleton arguments (as well as some of the things said in court). Of necessity, it selects, paraphrases and shortens the arguments actually made. What the parties agreed on is important, too. Not least because the very thrust of the argument made by the Council and Guardian (and the line of some of the judges’ questioning) was that Mrs Justice Roberts, the trial judge, was entitled to make her own decision about what weight to give the relevant public interest and privacy considerations and where the balance should fall in weighing those: so long as she gave adequate, cogent reasons, didn’t ignore key evidence or include irrelevant or improper ones.   Heather Rogers QC (barrister for the Council) and Deidre Fottrell QC (barrister for the Guardian) both said Mrs Justice Roberts had delivered a well reasoned, careful, thorough and balanced analysis of the relevant law and issues, meaning that the appeal should fail.  Anya Proops QC represented the appellant Journalist, Newman. She argued that Mrs Justice Roberts had made fundamental errors in her approach such as to render her decision wrong (the legal test for a successful appeal). She said the judge had made errors of law in the process of assessing the impact of the privacy and the free speech principles in the fact-specific circumstances of the individual case. And then, errors in how she had gone about weighing them into the necessary balancing exercise, such that individually and cumulatively her final decision on where the balance should fall in this case was (inevitably) utterly skewed and ‘wrong’.  The limits of the appellate court’s role All agreed that the law required the appellate court to be slow to interfere with an evaluative decision. All agreed that the balancing exercise as to competing Article 8 (private and family life) and Article 10 (freedom of expression) was the right legal approach – and ‘analogous to the exercise of a discretion’: The exercise of balancing article 8 and article 10 rights has been described as “analogous to the exercise of a discretion”…While that is at best only an analogy, the exercise is certainly one which, if undertaken on a correct basis, will not readily attract appellate intervention. PJS v News Group Newspapers [2016] AC 1081. The extent of the document disclosure the Journalist was requesting and whether the Court had the authority to permit the disclosure The lawyers spent a bit of time answering questions Lady Justice King initiated on this point. Ultimately the parties themselves seemed to agree (applying the guidance from a case called Dring) that : The Schedule of 12 different classes of document that Mrs Justice Roberts had categorised as those the Journalist had asked to see was right.  Mrs Justice Roberts had divided them into: Document types (7-12) – that had been prepared directly in contemplation of the court proceedings, like expert reports and witness statements. And document types (1-6) – generated otherwise, such as the mother and child’s medical records, certain specific social services records, and even certain letters, emails, and records of phone calls between professionals) (para 114 Mrs Justice Roberts) That it was within the High Court’s inherent jurisdiction to permit the Journalist to see all the documents she had requested – even documents 1-6 created without litigation even in mind and never actually filed on the court file itself – because the Court had later decided that they should be disclosed to all  parties and indexed for inclusion in various trial bundles along the way. The documents had been made available to the Court in the court bundles whether actually read or otherwise.  The inherent jurisdiction was in theory capable of going even beyond these to order public interest disclosure but there was no need to grapple with that here. The Journalist had based the documents she was asking for on these Indexes of documents and sought nothing wider in this application. Albeit her investigations might go much wider separately e.g. seeking other local authority or health records directly via freedom of information applications etc.  The basic applicable law  Mrs Justice Roberts’ detailed judgment set out what she considered to be the applicable statutory law, guidance and case authorities, and policy developments on the balance between confidentiality and open justice principles before going on to apply them to this case (paras 21-73). In broad terms, all parties agreed that the Judge had selected the right law , the right broad principles and conducted the right fundamental balancing exercise required of her. Where the parties disagreed was on whether she’d made fundamental errors in her approach to assessing the impact of the rights/principles in the individual case and in her approach in then applying the balancing exercise.  Most (though not all) of the law Mrs Justice Roberts had to apply was agreed. Indeed much of the relevant law was seen as so obvious that it didn’t need much introducing orally in the live streamed appeal, although it was set out in the skeletons as the starting point. The balancing exercise Where both Articles 8 and 10 arise, the court must approach the matter in accordance with Re S (A Child) [2005] 1 AC 593:  First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity, in that neither article has precedence over or ‘trumps’ the other. The exercise of parallel analysis requires the court to examine the justification for interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical exercise to be decided upon the basis of rival generalities. An intense focus on the comparative importance of the specific rights being claimed in the individual cases is necessary before the ultimate balancing test in the terms of proportionality is carried out. (A Local Authority v W [2006] 1 FLR 1) Proops argued that the judge had failed to adequately assess the actual impact of allowing or refusing the application, on the privacy rights or the open justice/free expression rights of the actual individual child concerned, or the actual individual journalist’s investigation (see below) – such that she was fundamentally wrong in principle in determining the application.  Rogers and Fottrell pointed to detail in her judgment and argued that Mrs Justice Roberts had simply (legitimately) given more weight to some factors, and less weight to others, than the Journalist would have given. They said there was no fundamental error in her approach and the appeal should be dismissed. Additional law and guidance on seeing documents (in particular) All agreed the Judge was right to apply the recent Supreme Court decision in Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38, [2020] AC 629 on seeing documents in a wider civil context (though with application for all tribunals), itself building on earlier authorities including Re S. The Council placed much more weight on applying Dring than the Appellant, as we see below.  Rogers, for the Council, pointed out that there is no applicable guidance on what documents journalists should see and how to decide this. She referred to earlier guidance, issued in 2009, following the change in court rules to allow journalists into the otherwise private family law courts, that had anticipated their requests for documents. That 2009 guidance had only ever proposed access to such summaries, position statements and other documents as appear reasonably necessary to a broad understanding of the issues in the case. The 2019 President’s guidance on applications to relax reporting restriction orders was largely silent on what documents journalists could/should see or how to decide. She urged guidance to fill that gap. She cited Dring – see below for the proposition that guidance would be a more appropriate forum than individual cases for decisions on wider policy principles about where the line should properly be drawn between confidentiality and transparency. Particularly given the President’s ongoing transparency review is looking at this. Errors in the privacy assessment (Article 8)? Proops said the Judge had failed to assess the privacy implications for the individual child in that : Mrs Justice Roberts had dismissed the only primary fact specific evidence as to the child’s views or likely harm to the child arising from granting the application almost out of hand with no adequate reasons. There was no other independent evidence of the child’s view, as the Guardian elected not to see the child.   Then Roberts had substituted for that gap in evidence: generalised assertions from the Guardian’s evidence about all children, based largely on research by Julia Brophy, which was about publication to the world at large rather than the scenario in this case, i.e. disclosure to one known journalist who was not planning to publish without separate later permission, if at all. And her own speculative view  Focusing on the fact-specific evidence of risk of harm to the individual child, Proops said that : the individual child here had been wronged by the State, knew she had been, and her private information was also significantly available in the public domain already.  Proops complained that whilst Mrs Justice Roberts had said that the mother’s parental responsibility must carry significant weight, she then didn’t give it any real weight, and had mischaracterised the mother’s actual evidence on her child’s wishes and best interests.  The Council argued that the Judge had been obliged to have regard to the views expressed by the Guardian as well as the mother’s, which she had given less weight to. Beyond that, Heather Rogers explicitly left arguments about the particular child to the Guardian and adopted those submissions. The Master of the Rolls pressed Ms Proops on whether her argument about failures to assess the impact the application would have on the particular child, might be more about dissatisfaction with where Mrs Justice Roberts felt the balance fell in weighing the conflicting rights, rather than being able to point to any particular aspect of her reasoning in her judgment as ‘wrong’.  Proops re-iterated that Mrs Justice Roberts had relied upon generalised assertions about harm in preference to the consent of a parent with parental responsibility and particularised evidence about the actual child.  Deidre Fottrell QC, on behalf of the Guardian, argued that Mrs Justice Roberts had properly identified and evaluated the child’s Article 8 rights and was entitled to reach the conclusions she did on the extent of their application and their weight in the balancing exercise. The judge had not mischaracterised the mother’s evidence, but found that the mother’s best interests and the child’s did not align. The mother was saying that the child was traumatised and in counselling, and yet that her best interests would be served by disclosing her records to Ms Newman and potential wider discussion of her family’s involvement in court proceedings. Fottrell’s skeleton argument set out the legal framework on behalf of the Guardian, including that the child’s best interests are still primary and very important even whilst not paramount; that as a child she enjoyed her own discrete right to private life under Article 8 even where a parent consented; and that an enhanced level of confidentiality attached to her medical records in particular. Fottrell argued that disclosure of the material sought (particularly the medical records) in and of itself amounted to an impermissible breach of the child’s right to respect for her private life, irrespective of her mother’s view or Newman’s individual standing as a journalist. (Mrs Justice Roberts had granted access to a small number of documents by class of document and a small number of others where redacted). Further, Fottrell argued that any Family Court should be reluctant to permit wider disclosure of documents filed in Children Act 1989 proceedings on the basis of the impact on the child concerned. Here the information sought contained the most personal, sensitive information about the child’s health and welfare decisions in her early years and Mrs Justice Roberts was right to conclude her best interests about having the most intimate details of her own and her mother’s medical records released to a journalist, even if never published, were the foremost factor in her balancing decision.  Rogers also pointed out (citing Dring again) that the fact-specific balancing exercise itself mandates analysis beyond the individual child and journalist/investigation to relevant issues of harm more generally in respect of effective justice and privacy interests. For example, a potentially damaging impact on effective information sharing between agencies vital to child safeguarding procedures: “any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others”. There may be very good reasons for denying access. The most obvious ones are national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality. (Dring) Proops argued that the Judge also got the legal significance of the mother’s consent wrong, citing various examples from domestic and European jurisprudence as authorities in support of the proposition that the mother’s consent must carry considerable weight as a matter of law, not just as a matter of fact. For example, she referred to the GDPR /Data Protection Act statutory scheme that rests on a premise that parents are in charge of decisions about their children’s social media use until they turn 13.  Proops also argued that there was no permissible ground here for departing from the authority of Mr Justice Munby (as he then was) in A v Ward [2010] EWHC 16 (Fam) and that any permissible interference with the child’s Article 8 rights should be largely considered through the lens of her mother’s views and attitude. Anything else was paternalistic. Munby J had said as follows in Ward: It is for the parents and the parents alone, to decide whether they wish to publicise care proceedings impacting their child. (Ward) The Ward case featured parents who had still got their court documents in their possession and had sought permission to share them with journalists to tell their story because they had been wronged by the State. They had been supported by the Guardian. All agreed Ward was relevant but there was fundamental disagreement about whether the Judge’s decision to depart from what Mr Justice Munby had said in Ward was permissible. Mrs Justice Roberts had decided she wasn’t bound by Ward. This wasn’t an application from a parent with parental responsibility for permission to share documents with a Journalist. This mother no longer had the documents and was supporting a Journalist to apply for access to the documents via the court, with the court then requiring the Council to redact and send them. (Though Mrs Justice Roberts added that the distinction ultimately had little bearing on her decision anyway). Rogers and Fottrell said the Judge was right that this was an access to documents application, and not an application about permission to share documents. It was also different from Ward because this Guardian opposed the application and the father too (these parents were separated) was said to have expressed some concern. As a matter of law, they said, it is the court, not a parent, who controls the process of disclosure of information in relation to proceedings and it is well established law that the court also has power to interfere with a parent’s exercise of PR where in the pursuit of the child’s best interests and proportionate. Proops also argued that the Judge had not had proper regard to the context that applied here. All the broad themes that were most obviously private were already in the public domain, such as the mother’s arrest and the child’s own medical history. This wasn’t an abuse case where the granular detail would significantly further erode the child’s privacy. The argument that the journalist knowing the level of detail (separate from publication) of itself required her application to be dismissed because of harm to the child was illogical. There would have been no objections from the court or Guardian based on harm to the child of the Journalist merely listening to the same detail if she’d attended the hearings, as she was entitled to do. Rogers pointed to the parts of the judgment showing that the judge had looked at the context in considerable detail. There was a proper balance to be struck. Dring was authority for the principle that mere engagement of the open justice principle doesn’t give rise to unrestricted access (‘open sesame’).  Errors in the free speech assessment (Article 10) ? Proops argued that it had been impermissible for the Judge to substitute her own investigation and conclusion on the proper public interest in the Journalist investigating further. She said : It was not enough to say that the Court of Appeal had righted the miscarriage of justice and their published judgment contains all the information required. The whole point of the open justice principle is robust independent scrutiny of the public law processes in the court and children’s social care services underneath and thus public commentary based on that scrutiny process (citing Webster).  The Court of Appeal is not a panel of investigative journalists. Its role is quite different from the “bloodhound” and “watchdog” roles that the courts recognise are played by the media in cases like this (See Reynolds v Times Newspaper [2001] 2 AC 127 at p.205; and see also Von Hannover v Germany [2004] EMLR 379; (2005) 40 EHRR 1). For this family, injustices not remedied by the Court of Appeal included 2.5 years separation of the child and her mother and the £20,000 costs incurred by the mother in appealing against her child being placed for adoption. The Court of Appeal judgment had not answered the question of whether the Placement Order application should ever have been issued because it had sent the decision back for fresh trial on evidence. That new trial never happened because the Council changed their minds and returned the child home. Proops said Mrs Justice Roberts had failed to weigh, in the balancing exercise, the wider harm to children generally of the media being unable to perform their watchdog role.  The Council cited Dring again (51) that, notwithstanding the vital importance of the open justice imperative, wider principles about the right balance between openness and confidentiality in relation to the Family Court were best considered in guidance in the context of the ongoing Transparency Review where the views of stakeholders and implications for practice and procedure in the overall context could be fully considered. In a postscript to their Judgment in Dring the Supreme Court had said: We would urge the bodies responsible for framing the court rules in each part of the United Kingdom to give consideration to the questions of principle and practice raised by this case. About the importance and universality of the principles of open justice there can be no argument. But we are conscious that these issues were raised in unusual circumstances, after the end of the trial, but where clean copies of the documents were still available. We have heard no argument on the extent of any continuing obligation of the parties to co-operate with the court in furthering the open justice principle once the proceedings are over. This and the other practical questions touched on above are more suitable for resolution through a consultative process in which all interests are represented than through the prism of an individual case.  (Dring para 51) The Master of the Rolls also pressed Proops on whether some of her arguments went too wide. She might be pushing at something of an open door, but the wrong door, with the right door being the ongoing Transparency Review, as the Local Authority and Guardian suggested. Fottrell suggested that Ms Newman had other routes of information gathering available to her to inform her investigation in relation to the allegedly high number of applications for placement orders in Southampton and the approach in relation to factitious illness cases, including freedom of information requests to the local authority. (Note also Newman here saying on twitter on the day that this was a wrong assumption with respect to child records). Error in the balancing exercise ? Proops argued that the above errors in assessing the impact on privacy and the public interest in the particular case alone were enough to make the final decision ‘wrong’ by infecting the balancing exercise that had to follow. But she went on to argue that there was fundamental error in the balancing exercise too. She said Mrs Justice Roberts had impermissibly pre-judged the public interest in publication, saying she was unlikely to permit publication and then relying (backwards) on that to decide where the balance lay between competing interests and rights on her seeing the documents, so as to improperly conclude that access to the documents was unlikely to serve any meaningful public interest purpose for the balancing exercise.  Fottrell and Rogers agreed with Mrs Justice Roberts that it was artificial to look at the balancing exercise required on the basis that Newman would see the documents and that would be it. That did not reflect the reality of the situation. But to suggest she had impermissibly conflated the application for sight of documents with a possible future application to report from them was a mischaracterisation.  The Master of the Rolls pressed Rogers for the Council on whether Roberts J had been right to prejudge what the journalist would find and consider in the public interest to report by accessing the documents, and whether the judge was permitted to do this. Rogers characterised it not as prejudging but legitimately having an eye to potential publication or otherwise. He pressed her again. Was it not arguing backwards? Wasn’t the Journalist clear in having identified a wrong and wanting to see the material that could show how it occurred? Rogers also cited Dring again that it wasn’t just a matter of the fact specific balancing exercise but also going on to legitimately apply fact-specific considerations of proportionality and also practical impact. She said the onus was on the Appellant to show that the document they sought would advance the open justice principle and that there are no countervailing principles of the sort outlined earlier, which may be stronger after the proceedings have come to an end, and that granting the request will not be impracticable or disproportionate, referencing the potential impact of redaction on an already hard pressed authority. Again the proportionality exercise must be fact-specific. What Next? Whatever the outcome of this particular appeal, I’d like to see the Court of Appeal routinely publish the anonymised written legal arguments (skeletons) or permit others to publish them, if under-resourced to do so themselves.  I would also like to see the Transparency Review clarify whether the law does already, or should now, permit transmission onwards of skeleton arguments and RROs to those with editorial responsibility in publications and who are not accredited journalists (whether commercial outlets or public legal education charities endorsed like the Transparency Project with the President’s Office) to fulfil their duties of ensuring the legal compliance and factual accuracy of what they publish. There’s no indication of when the Justices will be ready to give judgment. They have made clear it will not require a hand-down hearing. We’ll flag it when we see it and add it here. We haven’t been able to publish sooner because we only received the updated copy of the reporting restriction order on Tuesday. We have a small favour to ask!  The Transparency Project is a registered charity in England & Wales run largely by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it.  We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page.  Thanks for reading! Feature Pic: RCJ4 image by piqsels
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11% increase in Cafcass social worker numbers in past year as caseloads reach record levels

11% increase in Cafcass social worker numbers in past year as caseloads reach record levels | Children In Law |
Cafcass has increased its staffing numbers by 150 in response to record caseloads...
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Family Law Week: Intercountry adoption: exception requests

Home > News Intercountry adoption: exception requests The Department for Education has published information about exception requests to adopt children from countries with special restrictions. The guidance is aimed at prospective adopters and outlines the Department for Education's process for handling exception requests to adopt children from countries where special restrictions are in place. The information reflects and expands on the process set out in the Adoptions with a Foreign Element (Special Restrictions on Adoptions from Abroad) Regulations 2008. For the guidance, click here. 12/3/21
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Regulator to probe whether profit comes at expense of quality in children's social care market

Regulator to probe whether profit comes at expense of quality in children's social care market | Children In Law |
The UK's competition regulator will examine whether high profits for private providers are coming at the expense of quality of care in the children's social care market, in a study launched today.
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Budget cuts planned for social care as councils count cost of pandemic, public spending watchdog finds

Budget cuts planned for social care as councils count cost of pandemic, public spending watchdog finds | Children In Law |
Almost all English councils are planning to slash budgets this year in the wake of Covid-19, including through reviewing adult care packages and increasing service user charges, the public spending watchdog has found.
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Family Law Week: Capitalisation of child maintenance: a very rare bird

Family Law Week: Capitalisation of child maintenance: a very rare bird | Children In Law |
Home > Articles Capitalisation of child maintenance: a very rare bird Jo Carr-West, partner with Hunters, considers the implications of Mr Justice Mostyn’s recent judgment in AZ v FM. Jo Carr-West, partner with Hunters. Since 1998 the courts have had the power, on an application to vary spousal maintenance, to order capitalisation by terminating the periodical payments order and making a capital award to meet income needs. In his innovative judgment in AZ v FM [2021] EWFC 2, Mostyn J interpreted s31 Matrimonial Causes Act 1973 as also permitting capitalisation of child maintenance on a variation application, a power the court was not previously considered to have. However, whilst this is a significant development, it is clear that – for now at least – capitalisation of child maintenance will be ordered in only very limited circumstances. What are the relevant provisions of the Matrimonial Causes Act 1973? Prior to 1 November 1998 the court was expressly prohibited from capitalising maintenance on a variation application by s31(5) MCA 1973, which then provided: No property adjustment order shall be made on an application for the variation of a periodical payments or secured periodical payments order made (whether in favour of a party to a marriage or in favour of a child of the family) under s. 23 above, and no order for the payment of a lump sum shall be made on an application for the variation of a periodical payments or secured periodical payments order in favour of a party to a marriage (whether made under s. 23 or under s. 27 above). This provision was a source of frustration to the judiciary, as it prevented judges from imposing a clean break if (as is often the case) it had become affordable only after the final order was made in financial remedy proceedings – for example on the sale of a business or receipt of a pension lump sum. The Family Law Act 1996 introduced changes amending s31(5) to create an exception, set out in s31(7A)-(7H), which empowered the court, on an application to vary spousal maintenance, to capitalise the payments and direct that the party in whose favour the order was made not be able to make any further applications for maintenance. Whilst s31(7A)-(7H) explicitly relate only to spousal maintenance, in AZ v FM [2021] EWFC 2 Mostyn J considered whether s31(5) empowered the court to capitalise child maintenance by way of a lump sum order. What were the facts of the case? The parties were both well-respected architects in their mid-50s whose financial remedy proceedings had been determined in 2011. There was one child of the marriage, now 19 and studying at university but otherwise based with the wife. The financial remedy order had provided for a clean break as between the parties, with the husband paying child maintenance of £1,700 per month until the later of the child reaching 18 or concluding tertiary education.  There had been parallel proceedings in the Chancery Division in respect of the parties' architecture practice which concluded in 2014. The husband had moved to the US and in October 2017 applied to vary child maintenance to £800 per month on the basis that the child's needs had reduced and that the order was no longer affordable for him. His application was heard in July 2018, with judgment reserved and given in January 2019 (a delay Mostyn J regarded as "unacceptably long"). Following requests for clarification and supplemental judgments, the order was not perfected until October 2019. The order was largely in accordance with the wife's open position. It provided for a small reduction in periodical payments and ordering that that the "payments shall be made entirety in advance" – essentially capitalisation.  In recognition of the fact that future child maintenance claims cannot be dismissed, the wife agreed not to make any further applications for the child's maintenance, and gave an undertaking that were she to seek further maintenance for the child, she would immediately repay any sum awarded (though Mostyn J referred to this is a "symbolic gesture" given that the court could release the wife from her undertaking if a further application was made).  In making this order, the trial judge noted that it was "extremely depressing … to see that [the final order in the original proceedings] which was designed to address the financial matters between them and bring finality has given rise to such an extraordinary level of conflict". He also noted that they had spent £124,586 on costs (despite their positions being only around £50,000 apart), and that the husband seemed to "thrive on litigation". The judge considered he could not ignore this history in seeking to arrive at the correct solution. How did Mostyn J address the question of the court's jurisdiction to capitalise child maintenance? The husband appealed on the basis that "the judge made a fundamental error of law by capitalising child maintenance when there is no jurisdiction under the Matrimonial Causes Act to do so". The trial judge's order was stayed pending the husband's appeal with the original order remaining in force, but the husband had paid no child maintenance since March 2020, and informed Mostyn J that, in any event, he intended to issue a further application to vary.  The husband argued that there were three main reasons for the prohibition on capitalisation of child maintenance: 1. Unlike applications for spousal maintenance, applications for child maintenance cannot be statutorily dismissed, so the child cannot be prevented from making a further claim after capitalisation. 2. The child's circumstances may change; for example they may move to live with their other parent, or drop out of university. 3. Child maintenance is intended to be variable based on the paying parent's income and the child's needs. This is precluded if child maintenance is capitalised.  As Mostyn J noted, some of these points went to the question of whether it was appropriate for child maintenance to be capitalised, rather than to the question of whether the jurisdiction to capitalise existed. In determining whether the court had the power to capitalise child maintenance, Mostyn J considered the proper interpretation of s31(5). The subsection currently reads as follows (emphasis added): Subject to subsections (7A) to (7G) below and without prejudice to any power exercisable by virtue of subsection (2)(d), (dd), (e) or (g) above or otherwise than by virtue of this section, no property adjustment order or pension sharing order or pension compensation sharing order shall be made on an application for the variation of a periodical payments or secured periodical payments order made (whether in favour of a party to a marriage or in favour of a child of the family) under section 23 above, and no order for the payment of a lump sum shall be made on an application for the variation of a periodical payments or secured periodical payments order in favour of a party to a marriage (whether made under section 23 or under section 27 above). Mostyn J held that this sub-section means that whilst the court cannot, on an application to vary spousal or child maintenance, make a property adjustment or pension sharing order, and cannot, on an application to vary spousal maintenance, make a lump sum order, there is no equivalent prohibition on making a lump sum order on an application to vary child maintenance. Mostyn J concluded: "The language is completely clear. Where the application is to vary a periodical payments order in favour of a child of the family then there is power to award a lump sum". He added that where a variation application relates to child maintenance, s31(5) "permits" the court to discharge the order and instead order a "commutation payment". Arguably, s31(5) fails to prohibit such an order rather than actively permitting it, whereas s31(7A)-(7H) explicitly permit the court to capitalise spousal maintenance. It is however the case that s31(5) does seem to imply a difference in approach between spousal and child maintenance in respect of making lump sum orders on a variation application. Mostyn J "readily admit[ted]" that an order capitalising child maintenance would be "extremely unusual", and that he had no memory of ever encountering one, but noted that this did not mean the court lacked jurisdiction to make such orders. It was recognised that, unlike spousal maintenance claims, claims for child maintenance cannot be dismissed.  Mostyn J addressed this by providing that "where the court has made a capitalisation of child maintenance it would need a change of circumstances of exceptional magnitude before the court would augment what was intended to be a one-off commutation payment". When should child maintenance be capitalised? Mostyn J made clear that he did not expect the power to capitalise child maintenance to be widely used, saying "it will remain a very rare bird indeed". In particular, the inability of the court or the parties to exclude the jurisdiction of the CMS for more than twelve months under the Child Support Act 1991 meant that capitalisation of child maintenance could only properly be considered where the 1991 Act "could not apply" – for example because one of the parents or the child was habitually resident abroad, or because the child was over 19. Further, in the "overwhelming majority" of cases, the "risks and uncertainties" inherent in capitalisation would lead the court to make traditional periodical payments orders. However, capitalisation of child maintenance had been appropriate in this case due to the combination of: • Incessant litigation on which the husband thrived; • Repeated defaults by the husband in the payment of child maintenance; and • The child being 19 meaning there was a relatively short period of maintenance remaining. By the end of the hearing before Mostyn J, the parties had spent £224,000 disputing approximately £50,000 (even with the wife now acting in person); the husband was in default and had indicated his intention to issue a fresh variation application, whilst only a couple of years of child maintenance remained. These circumstances make it entirely understandable that Mostyn J was keen to uphold the solution of the trial judge which aimed to avoid further litigation between the parties or default by the husband. Whilst the interpretation of s31(5) MCA 1973 is novel, it is well-grounded in the wording of the statute. What if the MCA 1973 does not apply because the parents were never married – can child maintenance still be capitalised? Mostyn J's decision relies on the wording of the MCA 1973, which applies only to parties who were married. Where a child's parents were never married, and the CMS does not have jurisdiction, child maintenance is governed by Schedule 1 to the Children Act 1989. In MT v OT [2018] EWHC 868 (Fam), Mr Justice Cohen made a child maintenance order based on a capitalisation approach. The circumstances bore some similarities to AZ v FM: the father lived abroad meaning the CMS lacked jurisdiction, there had been incessant litigation between the parties since their separation in 2003, the father had failed to comply with previous maintenance orders, and the children (twins) were now almost 17. Cohen J ordered that the father pay a lump sum to cover maintenance for the next five and a half years, as well as educational and other costs, to the mother's solicitors, who would make monthly payments to the mother. If there was a surplus – for example if the children did not go to university – it would be returned to the father. Thus Cohen J's order achieved the security of capitalisation for the mother, but without the risk of over-payment for the father. When might capitalisation of child maintenance be useful? In practice, capitalisation of child maintenance seems likely to be used as an enforcement mechanism where there has been past default, in particular where the paying parent resides outside the jurisdiction meaning the CMS lacks jurisdiction and other enforcement mechanisms suitable for maintenance claims (such as attachment of earnings orders) are unavailable. Orders are only likely to be made where the remaining period of maintenance is limited, making predicting the child's future arrangements a less uncertain task. Mostyn J addressed only the possibility of capitalisation of child maintenance on a variation application, and it is not clear whether the court would countenance such an order within the initial financial remedy proceedings. For example, there may be cases where the parties both prefer to capitalise child maintenance, e.g. if there will otherwise be a clean break, the period of child maintenance is limited, and they are keen to have no ongoing financial nexus. Equally, there may be cases where it is apparent from the outset that compliance with a child periodical payments order is unlikely, for example where the payer is abroad and has defaulted on interim maintenance payments, making capitalisation of child maintenance desirable from the start. It would be interesting to see how the court would approach such situations. Overall, the potential scope and extent of the power to capitalise child maintenance remains to be seen, but for now family practitioners are likely to welcome the judgment as providing a helpful new tool to enforce child maintenance obligations in certain scenarios. 16/3/21
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Family Law Week: The Unequal Power to Grant and Remove PR from Biological Parents

Family Law Week: The Unequal Power to Grant and Remove PR from Biological Parents | Children In Law |
Home > Articles The Unequal Power to Grant and Remove PR from Biological Parents Stephen Williams, Barrister, St Mary’s Chambers, calls for reconsideration of the restrictions on the acquisition of parental responsibility by fathers Stephen Williams, Barrister, St Mary's Chambers, calls for reconsideration of the restrictions on the acquisition of parental responsibility by fathers There can be no doubt that in society men have historically had many advantages over women and many of these unfair and unjustifiable advantages continue to exist today.  However, there can equally be no doubt that when it comes to parental responsibility ('PR') for children some men are at a distinct disadvantage for no particular, justifiable reason.  As the stereotypical 'family unit' has changed, this is an area of law that (whilst niche) appears far overdue for updating.  Current legal position and the perceived problems Parental responsibility is defined by s3(1) Children Act 1989 as 'all the rights, duties, powers responsibilities and authority which by law a parent of a child has in relation to the child and his property.'  It is notable, however, that specifically s3(4) does not exclude an individual who does not have PR from an obligation to maintain their child. The reason why all of this is relevant is that all birth mothers acquire parental responsibility automatically, and this acquisition is not affected whether or not they are married to the father of the child.   Likewise fathers who are married to the mother gain automatic parental responsibility ; however, if they are not married to the birth mother, then they have to 'acquire' parental responsibility through other provisions within the Act.   The circumstances in which an unmarried father might acquire parental responsibility are set out in s4(1) CA 1989. Broadly they are: - He is registered on the birth certificate for the child. This has to be on the first registration rather than on a later alteration; - He and the mother enter into a 'parental responsibility agreement' providing for him to obtain PR; or - He obtains an order from the court granting him PR. If the number of children born out of wedlock grows, greater will be the number of fathers who need to utilise s4(1) to acquire parental responsibility for their children. In many cases they are registered on the birth certificate and there is no difficulty or hardship suffered.  However, if they are not (and the mother doesn't agree to enter into a parental responsibility agreement), then they have to go to court to acquire parental responsibility. When the government enacted the Children Act, it did not provide any form of statutory test as to how a court would judge whether a father should acquire parental responsibility through a court order, albeit the s1(3) welfare checklist applies to such a decision.  Inevitably therefore caselaw has developed to fill the void.  The most regular 'test' that has been sought to applied is from Re H  within which the Court of Appeal (under the previous statute) provided the following guidance: 'the court would take a number of factors into account, including the degree of commitment which the applicant had shown towards the child, the degree of attachment which existed between them, and his reasons for applying for the order.' This tripartite test has subsequently been said by Ward LJ in Re C & V  to not be a comprehensive test, but simply a list of factors to be used to 'answer the more general question of whether or not a father has shown genuine concern for the child and a genuine wish to assume the responsibility in law that he already had by natural causes'.  However, crucially the court retains a discretion as to whether such a father should have parental responsibility, a discretion which is not exercisable in the case of a mother or indeed a married father. Inevitably there are circumstances in which a discretion about whether an individual should have parental responsibility are sensible.  A child born as a result of a violent rape is an obvious and vivid one.  However, the child born out of a violent rape by a father married to his mother would not be so protected, and no discretion would be applicable in these circumstances.  By contrast, a child born out of a loving, but non-marital, relationship may have a father who does not have PR because he was never registered, and he doesn't have the funds or ability to apply to court to acquire PR. The situation is compounded further when considering who can have their PR terminated.  The only circumstance in which a birth mother can lose her PR is where an adoption order is made for the child.  This is also the case for a married father.  However, an unmarried biological father who has acquired parental responsibility through any of the mechanisms in s4(1) can have that same PR removed via court order pursuant to s4(2A) CA 1989.  It is however acknowledged that this is a very rare order to be made by the Family Court. Again, there are inevitably situations where it can be accepted that there are perfectly legitimate reasons why a court might want to remove a parent's PR.  However, the current statute provides for only a small subsection of PR holders to face the possibility that their parental responsibility might be removed by court order.  There is no apparent justification for this distinction as to why one subset of parents who commit such wrongdoing should be liable to have their parental rights removed whilst others do not? For both the acquisition and removal of PR there is an inevitable inequality between the sexes of parents but also between the historically recognised 'legitimate' and 'illegitimate' children.  It is difficult to see why in 2021 this distinction exists or why it should continue to exist.  Such a disparate position cannot be in the best interests of children. Proposed changes As for how the position could be changed to remedy these apparent inequities, I would suggest a few changes to the existing statute. Firstly, the ability for a court to remove parental responsibility appears to be a legitimate and appropriate order to make in limited circumstances.  Inevitably the circumstances would vary but there has been developed a considerable bulk of caselaw on the issue .  To remedy the perceived inequality (as set out above) the power under s4(2A) CA 1989 should be extended to include those who acquire their parental responsibility automatically on birth.  It is acknowledged that this may lead to other redrafting of the statute, but this would fulfil the legitimate aim of providing equality for the power to remove parental responsibility from parents in circumstances applicable to all. Secondly, with respect of addressing the inequality on the granting of parental responsibility, there is clearly a public interest for parents to be assumed to have parental responsibility.  For every parent to have to apply for parental responsibility would be unworkable. Inclusion on the birth certificate has enabled a large number of unmarried fathers to acquire parental responsibility, as have parental agreements.  It is unclear to me precisely how many mothers (who didn't include the father on the birth certificate) subsequently enter into such agreements; whatever the number, they help in reducing the number who have to go to court.  The principal focus for any change is therefore the fathers who do not feature within these other categories. All other fathers (and indeed all mothers) acquire PR automatically without having to pass any form of discretionary test. It is my view that almost any individual (see below) who can prove that they are the biological father to a child, should also have the same automatic grant of parental responsibility.  The mechanism to achieve such a change would appear to be an addition to the statute to provide that either with the confirmation from the mother that they are the biological father to a child or DNA testing that proves this biological connection they be granted PR automatically on a paper application.  All the arguments about discretion would be removed and there would be a presumption in favour of PR being granted. Of course, in the circumstances where PR was not thought appropriate, there would be the power to remove that automatically acquired PR through the pre-existing powers under s4(2A). It is accepted that these suggestions do not cover the wide array of differing families that now exist in our modern society.  Additional considerations would need to be had with respect of sperm donors, and limits would be required to prevent such biological fathers automatically being able to obtain PR for all of their biological offspring years later.  This however is a limited exception to a general rule.  Similarly, it might also be argued that for some vile offenders the presumption should be that they never should have PR and it shouldn't be victims who have to go to court to take those automatic rights away. However, these incidents are very much the exception to the standard case that comes before the Family Court and with proper judicial oversight (and the provision of legal aid through the Legal Aid Agency) such exceptions can be properly managed. There may indeed be other specific nuanced arguments that individuals may be able to come up with against these suggestions. However, it is my view (of course always willing to be persuaded) that these exceptions do not make the unequal treatment on grounds of sex or marital status any more justifiable in 2021 and the rules need to be changed.
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'You can't verify injuries over Zoom' - remote social work under Covid-19 in the UAE

'You can't verify injuries over Zoom' - remote social work under Covid-19 in the UAE | Children In Law |
How Covid-19 has affected social work in the UAE...
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Family Law Week: CMA launches study of children’s social care provision

Home > News CMA launches study of children’s social care provision The Competition and Markets Authority has launched a study of children's social care provision to establish why a lack of availability and increasing costs could be leading to the needs of children in care not being met. The CMA will examine concerns around high prices paid by local authorities and inadequate supply of appropriate placements for children in their care. This, says the CMA, could be putting pressure on the ability of local authorities to provide the appropriate accommodation and care which children need. Using its statutory market study powers, the CMA aims to obtain information to help build a better understanding of the children's social care sector. Depending on what it finds, it can issue guidance to businesses and the public, make recommendations to the industry or to government or, if appropriate, launch a full investigation into the market. In England, Scotland and Wales, around 99,000 children live under the care of their local authority. The majority of children in care, approximately 65,000, live in foster care. Around 16,000 children live in residential care, including children's homes and independent or semi-independent living accommodation, with the remaining 18,000 in a range of other types of placement, including with their parents or placed for adoption. Each local authority is responsible for contracting foster care and purchasing the required children's homes places. Children are placed with foster carers, either directly by the local authority or by independent fostering agencies, which can be run for-profit in England and Wales but not in Scotland. Children's homes are provided either directly by local authorities, by the private sector or by charities, with 70 per cent of children in England and 78 per cent of children in Wales placed in private sector homes. The launch of the study comes after concerns have been raised by other organisations about private sector provision of children's social care making high profit margins. A recent Local Government Association report found that some independent providers of children's residential and fostering placements are achieving profits of more than 20 per cent on their income. The study will examine whether high levels of profit have been made at the expense of investment in recruiting and retaining staff, and providing quality services. The CMA will look at how well the current system of provision is working across England, Scotland and Wales and explore how it could be made to work better. In particular, it will look into: the supply of placements, including whether the current balance of local authority, private sector and third sector provision is working well for children and local authorities prices charged by providers and variation between prices paid for similar types of placement, with increasing prices potentially putting pressure on local authority budgets the way commissioning of places is carried out, and whether local authorities could be more effective in securing appropriate placements for children the environment for investing in the system to ensure sufficient appropriate places are available for all children who need them in the future, and whether any measures should be taken to improve this. Comments on the issues raised can be submitted in the Invitation to Comment by 14 April 2021. All updates on the CMA's work in this area can be found on the Children's social care study page. For a recent House of Commons Library research briefing on children's social care services in England, click here. 14/3/21
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Family Law Week: AA and BB [2021] EWFC 17

Home > Judgments AA and BB [2021] EWFC 17 Decision of Mr Nicholas Cusworth QC sitting as a Deputy High Court Judge on 17 February 2021 considering Article 13 of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children (“The 1996 Convention”)  ___ Before the Court was an application by the mother for a stay of the father's proceedings under Article 13  of the 1996 Convention on the basis of ongoing applications in Russia relating to the children's welfare.   The mother was born and raised in Russia. The father was born in Russia but moved to an EU member state as a child and was a national of that state. The parties had property in London and in Russia, where the mother's principal business interests lay. The parties had two children, both at school in London.  At the time of the hearing there was litigation between the parties both in relation to the children and finances, albeit it was the issue of jurisdiction over the children that came before this Court.   As regards the mother's applications to the Russian Court, whilst the mother's initial applications had been rejected, they were ultimately accepted. It was of significance, that by the date that the father had filed his application, the mother had filed her original application. It was also significant and a fact that was established during the hearing in reply to a question "drafted over lunch", that at the time matters came before this Court, the Court in Russia had not yet determined the question of the children's habitual residence and so accepted jurisdiction in the welfare proceedings.   The father's response to the mother's application for a stay, inter alia, was that Article 13 did not apply.  Instead Article 61 of Council Regulation (EC) No 2201/ 2003 ("BIIR") applied, his application being issued prior to the conclusion of the transition period, and accordingly, the court could not impose a stay, the lis pendens rules in BIIR applying only to issues between contracting states, one of which Russia was not.   Whilst the Court ultimately considered that now was not the time to take the decision to defer the determination of whether it has jurisdiction, acknowledging that "(w)ith truly international children such as these, the position may well remain fluid for some time [paragraph 59], the judgment affords guidance to practitioners on the application and interpretation of Article 13 and the following paragraphs are highlighted.   As regards the application of Article 13 and the father's contention that this case fell into a rather "unsatisfactory lacuna", Mr Nicholas Cusworth QC disagreed and said this: 24. …I am quite satisfied tha(t) this case does not fall into the unsatisfactory lacuna which Mr Harrison says is the inevitable consequence of his interpretation of Article 61. Rather, the situation here is not 'governed by' Article 19 of the Regulation, but by contrast is undoubtedly governed by Article 13 of the 1996 Hague Convention, involving as this case does a lis pendens issue between the UK and a 1996 Convention country that is not a signatory to BIIR.   … … 27. … Finally on this issue, I note that with effect from 2022, the recasting of BIIR will provide expressly for this situation under what will become Article 97(2), which will provide that: (c) where proceedings relating to parental responsibility are pending before a court of a State Party to the 1996 Hague Convention in which this Regulation does not apply at the time when a court of a Member State is seised of proceedings relating to the same child and involving the same cause of action, Article 13 of that Convention shall apply. That prospective provision serves in my view to confirm the above interpretation of the current situation, and that a purposive interpretation of the current unspecific provision is entirely justified.   As regards the interpretation of Article 13, there was a dispute regarding the time at which "measures still being under consideration" must be measured. The Court concluded thus:    37. ….Mr Harrison says that the natural construction of the words is that they must relate back to the phrase 'at the time of commencement of proceedings', whereas Mr Gupta suggests that it must refer to the time when the court hears the application for a stay to be imposed. The explanation of Article 13 set out in the Practical Handbook on the operation of the Hague Convention 1996 at para 4.32 would tend to support this later position, in that it makes clear that the Article applies: '…for as long as the proceedings in respect of the "corresponding measures" in the other Contracting State are still under consideration.' 38. However, the Lagarde Explanatory Report in relation to the 1996 Convention at [79] restates the import of this paragraph thus: The authority having jurisdiction under Articles 5-10 should abstain from deciding on the request for measures with which it has been seised if corresponding measures have been requested from the authorities of another Contracting State which then had jurisdiction under the same Articles 5-10, such measures then being still under examination. 39. The use of the word 'then' both in relation to the second state having jurisdiction, and the measures being still under examination, might suggest that the same temporal requirement applied to both. However, I note that the French version of the report uses 2 different words, both rendered into English as 'then' – 'alors' for the possession of jurisdiction, 'encore' for the measures being under examination – which might more naturally have been rendered as 'still' – the word in the Practical Handbook. That would tend to support Mr Gupta's position, which I prefer of the two. Ultimately, I suspect that the drafters of this clause did not expect that there would be a substantial difference between the time when the second set of proceedings were commenced, and the time when the requirement to impose a stay arose. Even if I am wrong in this, however, my overall determination of this issue would not be affected, as I will explain. …. … 46. … I consider that even if I am wrong about the time for application of the phrase "are still under consideration" for the purposes of the Convention, the Russian proceedings were sufficiently extant on 6 November to qualify as being under consideration for the purposes of Article 13 (1). …. 52. I consider that,…. the proceedings would only cease to exist, and matters would only cease to be under consideration for the purposes of Article 13, once the usual time for appeal of any order dismissing or rejecting the proceedings had expired. If that time had expired, then no proceedings would exist from that point, and the circumstances of a prior request still being under consideration would not be met.   Case summary by Georgina Rushworth, Barrister. Coram Chambers    For full case please see BAILII
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Family Law Week: New private law cases received by Cafcass in February rose slightly on 2020

Home > News New private law cases received by Cafcass in February rose slightly on 2020 Cafcass received a total of 3,827 new private law cases (involving 5,306 children) in February 2021 – 0.3 per cent (or 12 cases) more than the same month last year. For the month-by-month figures, click here. From that page, a further link shows private law case demand and number of subject children by DFJ area. 14/3/21
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Heartbreaking injustice of the Covid custody wars | Daily

Heartbreaking injustice of the Covid custody wars | Daily | Children In Law |
Lawyers claim parents are weaponising covid in battles for custody of children, despite guidance in the UK stating those under the age of 18 can move between their parents' homes.
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Infographic: Uncovering private family law in England

Infographic: Uncovering private family law in England | Children In Law |
Uncovering private family law: Who’s coming to court in England is the second in a series of reports on private law children cases in England and Wales. It uses population-level data for England to examine trends in demand and develops a demographic profile of the families involved, as well as the patterns of orders applied for. It also provides new evidence on the proportion of repeat applications by exploring the gendered pattern of this phenomenon for the first time. This infographic shows some of the key findings from the report.
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Response to CMA study of children’s social care provision

Response to CMA study of children’s social care provision | Children In Law |
A couple of weeks ago I set out the overarching question that the independent review of children’s social care will focus on – how we can ensure that children grow up in loving, safe and stable families, and where that is not possible that care provides those same foundations.
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Family Law Week: Supreme Court to hand down judgment in 1980 Hague Convention / asylum case

Home > News Supreme Court to hand down judgment in 1980 Hague Convention / asylum case The Supreme Court will hand down judgment in G v G on Friday, 19 March 2021. The case concerns G, the only child of divorced parents. Until February 2020, G's parents lived near to each other in South Africa. However, after telling friends that she was lesbian, G's mother began to experience persecution from her family in South Africa. As a result, she fled to England with G and made an application for asylum. Upon discovering that G had been taken to England, G's father made an application for her return under the 1980 Hague Convention. At first instance, Lieven J held that the father's application for a return order should be stayed pending the determination of G's mother's asylum claim. The Court of Appeal in G (A Child : Child Abduction) [2020] EWCA Civ 1185 considered that, in the circumstances, the High Court was not barred from determining the father's application for a return order, nor was it barred from making such an order. The mother appealed to the Supreme Court. The Supreme Court will consider: Does a child named as a dependent on a parent's asylum application have any protection from refoulement? Can a return order be made under the 1980 Hague Convention even where a child has protection from refoulement? Should the High Court be slow to stay an application under the 1980 Hague Convention prior to determination of an application for asylum? For the Court of Appeal judgment, click here. 12/3/21
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The Adoption and Children (Coronavirus) (Amendment) Regulations

The Adoption and Children (Coronavirus) (Amendment) Regulations | Children In Law |
This briefing describes the laying of the Statutory Instrument, its content, reaction from the sector, and extensions to the initial Instrument that came into force in April 2020.
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Family Justice Council – 2021 Bridget Lindley Memorial Lecture: What do we mean by a family? | Courts and Tribunals Judiciary

Family Justice Council – 2021 Bridget Lindley Memorial Lecture: What do we mean by a family? | Courts and Tribunals Judiciary | Children In Law |
Read Lady Brenda Hale's speech from the FJC Conference...
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