Children In Law

A judge in the Family Division of the High Court has revoked adoptions orders for an 18 year old (A) and a 16 year old (B) after concluding that there were “compelling highly exceptional and particular circumstances” that supported such a step.

A growing number of local authorities have reported an increase in the complexity of children’s social work cases due to pandemic pressures, a Department for Education (DfE) survey has found.

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

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

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

Background AC ("the father") is a USA national and NC ("the mother") is a British national. The parties began their relationship in 2014 when the mother was on a work placement in the USA. They married in State A in the USA on 16 November 2015, where they initially lived. The mother visited her family in England whilst she was pregnant with their child ("K") in 2016. However, due to medical reasons, she was unable to return to the USA and, as a result, K was born and had his birth registered in England in January 2017. The father travelled to England for K's birth but had to return to the USA after two weeks due to his work as a police officer. Although the parties resumed living together with K in the USA at some point between late 2017 and 2019, exactly when this happened was disputed by the parties. The mother claimed it was in February 2018, when K was almost 14 months old. The father said it was when K was nine months old, but that the mother took K back to England when he was 18 months and remained there with him until after his second birthday. The parties separated in April 2019. On 22 October 2019, they signed a "Marital Settlement Agreement" ("the agreement"), governed by the law of State A. The agreement dealt with the parties' capital and income claims against each other, and set out future arrangements regarding the care of K. It was agreed that the parties would have "joint custody of the child". [5]K would relocate to England where he would live and attend school during term time. Then in the holidays, and at least three times a year, K would spend his time in the USA with the father. This agreement was endorsed by a Family Magistrate sitting in the Circuit Court of State A on 24 January 2020 and formed part of the order that the Court made upon the parents' divorce. The order ("the USA order") was issued on 18 February 2020, and included: That the parties be awarded "joint legal custody" of K That the mother shall be the "primary residential custodian" with "reasonable rights of parenting time" being granted to the father That the father should have parenting time in accordance with the agreement That the agreement be incorporated into the judgment Three days later, on 27 January 2020, and in accordance with the USA order, the mother moved K back to the UK. They have lived at her parents' house in north-east England since then. Recently, however, the Covid-19 pandemic has prevented the USA order from being upheld. The mother and K were due to fly to the USA on 31 March 2020, but their flight was cancelled due to the national lockdown and resultant travel restrictions. Plans for K to visit his father were then thwarted by quarantine obligation during the summer and Christmas holidays of 2020. Although it was suggested by the mother, the father was unable to travel to England due to work commitments. This meant that the father's contact with K was limited to video contact every other day. On 29 October 2020, the father filed a petition for contempt and a petition to modify custody at the Circuit Court in State A, alleging that the mother had violated the USA order. The father sought full custody of K. The proceedings in State A, following a settlement conference on 11 February 2021, are ongoing. Applications On 19 January 2021, the father applied in England for an order for the immediate return of K to the USA under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. He pleaded his case in his Form C67: "It is disputed that the child is now habitually resident in England as the mother's solicitors have asserted in a letter to the father because permission to relocate to England was only made on the basis on the agreement which has not been adhered to by the mother." [20] The application was first heard by Nicolas Cusworth QC, sitting as a Deputy High Court Judge, on 28 January 2021. A hearing to determine K's habitual residence was listed. Arbuthnot J adjourned and relisted the matter. The application was then heard by Mostyn J. The elementary rule "It is elementary", Mostyn J began, that the 1980 Hague Convention can only be invoked where the child's habitual residence has not changed to the new state before the alleged act of removal or retention. [21] The test for habitual residence Mostyn J agreed that the test set by the Court of Justice of the European Union ("the CJEU") for determining a child's habitual residence was "canonical". [24] In Proceedings brought by A (Case C-523/07) [2010] Fam 42, [2009] 2 FLR 1, the CJEU stipulated that the meaning of "habitual residence" corresponds to the place that reflects a degree of integration by the child in both a social and family environment. Of import is the duration, the reason, regularity, and conditions of the stay in the territory. In addition, is the child's nationality, school attendance, and linguistic knowledge. As such, the exercise of determining habitual residence is one of "pure fact". It will "always boil down to", held Mostyn J, answering one simple question: "has there been, on the relevant date in the new state, the requisite degree of integration by the child in the social and family environment?". [24] Mostyn J employed the metaphor of a see-saw to represent the moment in time, or punctum temporis, when the change in a child's habitual residence occurs. Despite how the see-saw metaphor has "generated a certain amount of confusion", Mostyn J found that, having "originated in the nation's highest court", it was both "simple and valuable". [26, 27] That there is "no scope for limbo in this analogy" accurately reflects how it is "vanishingly unlikely" that a child can be left in a limbo where they have lost habitual residency in State A but not gained in in State B. The motion of a see-saw, just like the build-up to a change in habitual residence, can be fast or slow. Yet, whatever the speed, "the point of equilibrium will be passed". [25,26] Mostyn J did, however, caution against mistakenly interpreting the metaphor to mean that there needs to be the same level of integration in the new state as there was in the original state before a child's habitual residence can change. In this case, and in order to succeed with his application under the 1980 Convention, the father needed to demonstrate that at the point of wrongful removal or retention K remained habitually resident in the USA. The father's case The father claimed that K had remained habitually resident in the USA at all times because, from when K and the mother left the country on 27 January 2020, the mother had always dishonestly intended to breach the father's spending time rights under the terms of the agreement and the USA order. His argument was that the agreed change of habitual residence of K to England was vitiated by the mother's fraud and that, as a result, K was wrongfully removed from the USA. Or, alternatively, that he was wrongfully retained in England when he did not return to the USA during Easter 2020. Mostyn J held that the intention, or the state of mind, of the mother was a fact, "albeit a psychological fact", that needed to be considered alongside all the other facts in order to determine whether K had reached the requisite level of integration in a social and family environment. [32] Whilst it is "trite" law that fraud unravels all, Mostyn J was not aware of the existence of any authority that states that the agreed relocation of a child, with an accompanying change in habitual residence, can be voided ab initio on the basis of fraud. [33] The result is that, even if the USA order were to be set aside, this would not avail the father's later application for the return of K under the 1980 Hague Convention. By the time the father issued his Form C67, K was habitually resident in England. Conclusion Mostyn J found that it was completely lawful for the mother and K to travel to England on 27 January 2020. This would be the case even if the mother had been harbouring dishonest intentions to later prevent K from seeing the father. Although, Mostyn J held that the mother had never harboured such intentions. Similarly, there was no wrongful retention in this case. Mostyn J did not believe it necessary to determine the moment when K's habitual residence changed from the USA to England, but found that it had been prior to Easter 2020. It is because of this that he could not see that the Convention could be engaged. Mostyn J concluded that the father's "true complaint" was that he was being denied what the Convention refers to as "rights of access". Article 21 of the Convention requires state parties to facilitate the enjoyment of rights of access by making it an administrative obligation to afford a domestic remedy. In England, that would be the right to have an application under section 8 of the Children Act 1989 heard. Mostyn J offered the father the opportunity to have his application under the Convention treated as having been made pursuant to Article 21, but he was refused. Mostyn J dismissed the application. Lydia Newman-Saville, Pupil Barrister at 1 Hare Court

Looked after children and young people should be considered ‘one of their own’ by carers, in order to help them to reach their full potential, new NICE draft guidelines say. The draft guideline recommends that the looked-after person is surrounded by a care network consisting of positive relationships supported by genuine caring – where carers treat the looked-after person as ‘one of their own’. Supporting continuity of relationships with social workers, considering programmes to support mentoring relationships, and providing funding to enable contact with friends are also recommended. As of 31 March 2020, there were 80,080 looked-after children and young people in England, with abuse and neglect being the most common reason for being looked after. Overall, looked-after children and young people have poorer outcomes in many areas compared to the general population, including mental and physical health, education, and offending rates. Dr Paul Chrisp, director for the Centre for Guidelines at NICE, said: “This guideline outlines how organisations, professionals and carers can work together to deliver high quality care, stable placements and nurturing relationships for looked-after children and young people. We know that looked-after children and young people are at a distinct disadvantage compared to their peers, and we have a responsibility to try and reduce these gaps and ensure looked-after people have a fair shot at life. “One of the key pillars of NICE’s new 5-year strategy focuses on reducing health and well-being inequalities, and this draft guideline demonstrates our commitment to working towards a fairer society for all. “The disruption caused by COVID-19 pandemic has had a devastating effect on looked-after young people, so it’s hugely important that the whole system works to restore services and prevent this vulnerable group from falling even further behind their peers. We acknowledge that social care funding is stretched, but we hope this guideline will help practitioners to achieve better outcomes for looked-after young people.” After initial health assessments when entering care, practitioners should consider whether the looked-after child or young person requires additional specialist mental and emotional health assessments. A range of dedicated and tailored child and adolescent mental health services should be offered to address mental health issues. The guideline committee noted that many looked-after children and young people also belong to groups with protected characteristics, which can lead to them being disadvantaged in multiple ways. They recognised that meeting the needs of these groups may require additional attention and expertise. The guideline covers support provided to looked-after children and young people and care leavers (from birth to age 25), and their families and carers (including birth parents, siblings, connected carers, special guardians and prospective adoptive parents). This draft guidance is a full update to the 2010 guideline on looked-after children and young people, and focuses more on specific interventions needed to help practitioners improve outcomes for looked-after children and  young people, as well as how statutory care can be best delivered. This draft guideline is out for public consultation, which is expected to run until 15 June 2021. You can comment on the consultation here.

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

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

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

This is a case where the Court was invited to consider at the close of the Local Authority case whether the Local Authority application should be dismissed without hearing from other witnesses. It was decided by Mr Recorder Howe QC sitting as a Deputy High Court Judge.

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

The Swiss father applied under Article 8 of the 1996 Hague Convention for jurisdiction to be transferred to Switzerland, where the two-year-old daughter currently lived with him. The application was opposed by the British mother and the guardian. It was agreed that the daughter had been abducted from England in June 2020, when the paternal grandparents had paid for a private jet to take the father and daughter to Switzerland. The mother had not seen the daughter in person since August 2020. Arbuthnot J found that the court could not transfer these proceedings under Brussels IIa, and Article 8 of the Hague Convention did not apply in a case of wrongful removal unless the conditions in Article 7(1)(a) or (b) had been met. In her judgment, the courts here were better placed to determine the daughter's best interests. Delay was also a significant factor: this was a very young child, and her living arrangements should be determined much sooner than Swiss proceedings would allow. If there was a discretion to transfer under Article 8, Arbuthnot J would not have exercised it. There was no alternative power to transfer under the Family Law Act, and if there were, she would have exercised her discretion to not transfer the proceedings. The question of contact would be decided separately. Judgment, published: 29/04/2021 Topics Share