Knife to test Court security

Posted on March 22, 2024 by suesspiciousminds

This case raises both some legal questions and probably some more worrying questions about Court security.

A Local Authority v D & Ors [2024] EWFC 61 (19 March 2024)

https://www.bailii.org/ew/cases/EWFC/HCJ/2024/61.html

Peel J was dealing with a case in which there was a three day final hearing involving four children and the LA plan for the younger two was adoption. The issue for this hearing and judgment was as to how the mother was going to be able to participate in this hearing, the mother having done something spectacularly unwise previously.

At a day when the case was not being heard in Court, the mother visited Court, passing through security. She went to the first floor toilets and then went back down to security and handed them a knife with a three inch blade and four inch handle, wrapped in plastic and bound in tape. It remains unclear as to how she brought this knife through security. (I can’t help but be reminded of the scene in The Godfather where a handgun is left for Michael Corleone in the cistern in the restaurant toilets to avoid detection when he is frisked – but of course we have no idea)

The mother filed a statement in which she said that she had done this to draw attention to knife crime and the laxness of Court security.

The Court Service (as in the administrative element not the judicial one) carried out a risk assessment and determined that the mother was no longer to be admitted to a Court building. This is under the HMCTS Protocol for Managing Potentially Violent People (“PVP Protocol”). This obviously came under even more focus following a life-threatening assault on a Judge in November 2023.

The mother’s solicitors also conducted their own assessment and concluded that they would not be prepared to have the mother attend their offices to participate in the hearing remotely. That’s also understandable – it is more than just one person agreeing to accept the risk as her representative – there are other lawyers, support staff and other clients and visitors to those offices whose safety has to be considered.

That left Peel J in a difficult situation – HMCS were saying that mother couldn’t come into the Court building (for understandable reasons), the solicitors couldn’t facilitate her coming to their offices for a remote hearing (for understandable reasons) yet the hearing involved her children and the possibility of adoption for which she needed to be able to participate and have her article 6 rights to a fair hearing.

The Court noted that nobody had asked for the HMCS risk assessment but that in any event these were not for public consumption.

No party has asked me for an order that the risk assessment carried out by the Court Service should be disclosed. I did not hear argument on this, but in my judgment, it is hard to see how it could ever be appropriate for a judge to order that such a document be provided to the potentially violent person and/or the parties in general. These are internal risk assessments carried out by, or on behalf of, HMCTS. They are not for public consumption.
On the other hand, a person affected by the assessment is entitled to have some sort of understanding of the basis of the assessment, i.e why a particular measure has been imposed. Here, the rationale for the risk assessment is not difficult to discern as the basic facts, outlined above, are clear. In some cases, the reasoning will be less obvious. It seems to me that it would usually be appropriate for the gist of the reasoning to be given to the affected potentially violent person, whilst taking care to ensure that none of the information provided prejudices or puts in danger a particular source of information. It will be for the potentially violent person, if dissatisfied with the arrangements resulting from the risk assessment, to apply to the court for further consideration of the steps required to enable access to justice. Although in this instance a court hearing was listed to consider the way forward, I would expect that in most cases it can be dealt with swiftly on paper.

Peel J decided that the mother should be permitted to attend Court for the final hearing but under some incredibly rigorous stipulations (note that I am absolutely saying that these are proportionate given the facts of the case – but they are on the face of them, very rigorous)


  1. In this case, given that remote attendance for M is not workable, it seems to me that M must be permitted to enter the court building for hearings provided that the following arrangements are put in place and adhered to:

i) M shall attend the building and be met by her legal representative at security, who should have passed through security before meeting M.

ii) M is not to be accompanied by anybody (for example a friend or associate) in the court building except her legal representatives and security.

iii) M is to go through full security checks, including passing through the arch, being wanded and being patted down.

iv) M’s mobile phone will be removed for the duration of her time in the court building, and returned to her when she leaves.

v) M shall, when not in court for the hearing(s), ordinarily stay in a separate consultation room which will be made available for her and her lawyers. The security staff will stay immediately outside the room.

vi) M is not permitted to take liquids into court.

vii) No fewer than 2 security guards will accompany her at all times save when she attends the toilet. Upon exiting the toilet, she will be thoroughly searched by security, and the toilets thereafter will be checked.

viii) 2 security guards will sit on either side of her in court. She will sit at the back of the court save when she gives her evidence.

ix) When the court hearing or court day finishes, there shall be a staggered exit so that M leaves the court building before anyone else involved in the case.

x) If M refuses to undertake any part of this process, entry may be barred or, if she has already entered, she may be excluded from the building.

  1. I suggested these measures to the parties, who agreed them. The measures have been agreed with the local Court Service. In this respect, I note that (i) the Court Service has a duty to ensure the safety of all court users, (ii) it is the Court Service whose responsibility it is to follow the PVP Protocol and make the risk assessment and (iii) it is the Court Service which has to provide the resources to manage and mitigate the risk. It is not for a judge to make orders against the Court Service. The order I make will record the operative measures as recitals rather than incorporate them as orders. There would be no purpose in making an order which the Court Service is unable to fulfil, and to do so could create confusion, generate delay and perpetuate the risks. There needs to be consultation and cooperation between the Court Service, judiciary and the parties to ensure that access to justice can be provided in as practicable a way as possible.
  2. The measures set out above in my judgment represent a fair balance of the competing rights, particularly under Articles 6 and 8, and a proportionate response to the potential threat.
  3. At the risk of repetition, these measures which I have outlined will not be necessary or appropriate in each case. The facts of this case are unusual. The response to each PVP Protocol incident obviously depends on the circumstances, taking into account local demands, resources and practices.

Note also that the Judge had agreed those measures with the Court Service and was plain that it would not be appropriate for the Judge to make an order against the Court Service.

You may be wondering, as I was, why it wasn’t possible for the mother to attend remotely from her own home – she was living in a homeless person unit, which probably therefore does not have the necessary facilities for someone to be on their own in a room with reliable wi-fi and no risk of being overheard or interrupted.

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The oddest argument about an Interim Care Order

Posted on March 21, 2024 by suesspiciousminds

I’ve seen lots and lots of cases about whether or not the Local Authority should have an Interim Care Order and loads about whether interim separation should be granted, but this is the first time I’ve seen a case where the Local Authority ASKED for an Interim Care Order and interim separation, got it, then reunited the child with a family member without consulting with the Guardian or IRO and were arguing with the Court that the child SHOULD be with the mother, just five weeks after securing judicial approval for removal.

What seems to lie at the heart of this is the nationwide difficulty with foster placements – there being a significant disparity between the supply of them and the demand that exists. Most people who do public children work are aware of occasions when placements are sought but not found.

Luton Borough Council v R & Ors [2024] EWFC 52 (13 March 2024)

https://www.bailii.org/ew/cases/EWFC/HCJ/2024/52.html

The case came before MacDonald J, the Circuit Judge who considered the case having been understandably very concerned about the Local Authority’s change of plans for the child and their reluctance to row back on it.

The judgment sets out a lot of the background and issues at ICO stage, whilst of course being mindful that no findings had yet been made on the allegations, they are very succinctly summed up here:-

 the allegations made by X that, whilst in the care of the mother and the father, she was subjected to sexual abuse by three relatives over the course of at least five years, including repeated rapes.

The placement that X was in had broken down shortly after the ICO was made, and the Local Authority were not able to find any alternative foster placements. She was initially placed in a Travelodge with one of her older siblings, that broke down after 2 weeks because the sibling had work committments that could not be resolved, and X’s mother then became the carer – initially at the Travelodge and then at an Air B&B.

The Local Authority were not able to produce documentary evidence of the decision-making around this, nor the decision to place with a parent under the Care Planning Regulations and the matters that need to be satisfied before a Local Authority can do so.

The Head of Service and Operations Manager became involved and the Court was critical of the evidence that they gave, whilst acknowledging that their attendance at Court to give evidence was at quite short notice. They placed reliance on what they asserted to be a robust risk assessment. MacDonald J observes that having read the document it could not be said to be robust, further describing it as cursory and superficial.

The purported risk assessment deals only in the most cursory manner with the allegations of sexual abuse, with a brief summary of the allegations that misses out any account of X’s recent allegations against the paternal grandfather.  In particular, the superficial and incomplete narrative account set out in the purported risk assessment does not deal with the precise nature and extent of the allegations made by X and makes no reference to the views expressed by the mother concerning the source and credibility of those allegations.   The narrative makes no reference at all to the fact that on 31 January 2024 the court was satisfied, pursuant to s.38(2) of the Children Act 1989, that there were reasonable grounds for believing that X had suffered significant harm, that the allocated social worker and the Children’s Guardian were each of the view that the parents were not able to protect X from a risk of sexual abuse, that in those circumstances the local authority had sought the removal of X from the care of her parents or that there was an ongoing police investigation following the arrest of the X’s brother, brother-in-law and paternal grandfather.  Both parents informed the social worker that they have longstanding mental health issues, the mother suffering from chronic depression and anxiety and the father having severe anxiety, panic attacks, hallucinations and paranoia.  These are not dealt with.  The hurried and inadequate narrative is followed by a series of tick boxes that have themselves been inaccurately completed.  Finally, the purported risk assessment that the Head of Service and the Operations Director advanced as the forensic foundation of their conclusion that the mother is now able to protect X from the risk of sexual abuse in the interim contains no analysis whatsoever of the nature and degree of the risk of sexual harm to X or of the extent of the mother’s ability to protect from risk of sexual harm in light of the evidence available. The risk assessment does not deal at all with X’s allegations of physical abuse against her family members, including the mother.  In the foregoing context, the conclusion of the risk assessment is limited to the following, grammatically incorrect, observation:

“Although mother is able to care for X and meet her needs, and is able to keep her safe. The likelihood of X running away, not listening or following instruction, or making other allegations against her mother may be high if X does not get her own way.“

(I’d note here that your day in Court is not going well when the key document that you rely on for your case is described as a ‘purported’ X.)

Things were compounded when it appeared to the Judge that the move from the Travelodge to an Air B and B was an alteration to the interim care plan that was being devised during the course of giving evidence in real-time and that the social worker did not seem to know that the interim care plan had changed and that she should have been rewriting this.

The Court was in a difficult position legally – there are authorities that say that where the Court and Local Authority have a different view of the correct care plan / interim care plan, the Court can and should convey that to the LA and the LA should carefully take account of this and consider whether they accept the invitation to change the plan. But ultimately the general position is that the final power for the Court is to not grant the ICO – that doesn’t help here. (And obviously wardship isn’t an option to secure accommodation by the Local Authority)

The LA here were invited to change their interim care plan and decided not to do so.

This is the judicial analysis of a really desperately difficult situation

50.          In these circumstances, what is a manifestly inadequate and flawed document cannot possibly be said to support the decision making of the Head of Service and the Operations Director or the revisiting by the court of its risk and welfare assessments.  Robust risk assessment in the context of alleged sexual abuse is not derived from vague assertions about families “going on a journey with respect to disclosures of sexual abuse”.  It is derived from the careful, detailed, evidence based social work practice that is articulated in, and has been repeatedly emphasised since, the Cleveland Report and which I summarised in Re P (Sexual Abuse: Finding of Fact Hearing) [2019] EWFC 27 at [599].   The purported risk assessment relied on by the Head of Service and the Operations Director in this case fails to measure up in every respect to that long-established guidance.

51.          The decision of the Head of Service and the Operations Director to place X in the care of her mother in an Airbnb, also has no forensic foundation in any other evidence.  Before deciding to place X in the care of her mother in an Airbnb, r.17 of the Regulation 17 of the Care Planning, Placement and Case Review (England) Regulations 2010 required the local authority to assess the suitability of mother to care for X, including the suitability of the proposed Airbnb accommodation, taking into account the matters set out in Schedule 3 of the Regulations.  The matters defined in Schedule 3 include the mother’s ability to protect X adequately from harm or danger, including from any person who presents a risk of harm to X, and to ensure that the home environment is safe for X.  Whilst the Head of Service asserted that approval for the placement of X with her mother pursuant to r.17 of the Care Planning, Placement and Case Review (England) Regulations 2010 had been given, neither the Head of Service and the Operations Director were able to provide the court with any documentary evidence of this decision having been considered, taken and recorded.

52.          Regulation 17(c) of the of the Care Planning, Placement and Case Review (England) Regulations 2010 further required the local authority to determine whether, in all the circumstances and taking into account the services to be provided by the local authority, the placement would safeguard and promote X’s welfare and meet X’s needs set out in the care plan.  However, once again, neither the Head of Service nor the Operation Director was able to provide the court with an amended interim care plan with respect to X.  Indeed, the care plan for X appeared to evolve during the course of the evidence, and in particular the evidence of the Operations Director.  As I have noted, as at 5 March 2024 the local authority’s position was that it would continue its search for a foster placement for X.  At the outset of this hearing, counsel for the local authority did not suggest that position had changed and nor had the other parties been put on notice of any change of position.  The social worker appeared completely unaware that the interim care plan had changed and the fact that, on the Operations Director’s evidence, she should have been drafting a new care plan. Whilst the Operations Director stated during her evidence that the interim care plan had changed from foster care to placement with the mother as the result of a considered discussion and between her and the Head of Service, I regret that I was left with the distinct impression that the Operations Director had revised the interim care plan during the course of her evidence in order to give the appearance of rationality to a decision making process that had in fact driven by a shortage of resources.

53.          Within the foregoing context, it appeared that the sole argument advanced by the Head of Service and the Operations Director to support their assertion that the mother was now able to protect X from the risk of sexual and physical abuse centred on the improvement in X’s behaviour, and thus to depart from the risk and welfare assessments of the court, was that X’s behaviour had improved in the care of her mother.  In this respect, the Head of Service and the Operations Director each argued that this improvement in behaviour was evidence of the mother’s capacity to protect X from sexual and physical abuse to a greater degree than was the case when the local authority sought the removal of X from her mother’s care.  There are obvious difficulties with that contention. 

54.          There is no robust assessment demonstrating that the genesis of X’s improved behaviour is the result of any improved capacity on the part of the mother to protect her from sexual and physical harm as opposed to, for example, the fact that X is simply happier in the care of her mother than in foster care.  In this context, time and again the Head of Service and the Operations Director mistakenly conflated improvements in X’s behaviour, which have not yet been the subject of formal assessment and may derive from any number of factors, with a reduction in the risk of harm arising from the allegations made by X that, whilst in the care of the mother and the father, she was subjected to sexual abuse by three relatives over the course of at least five years, including repeated rapes.  In the circumstances, I am satisfied that the noted change in X’s behaviour over a short period of time is not a sufficient foundation to depart from the risk and welfare assessments of the court.

CONCLUSION

55.          Alleged sexual abuse is a complex and grave safeguarding issue that demands a careful and precise forensic approach to evidence based risk assessment.  The casual and cavalier approach adopted by the local authority to risk assessment and decision making for X in this case is the antithesis of the correct approach and one which manifestly fails to safeguard X.  On 31 January 2024, this court assessed X to be at risk of sexual and physical abuse and assessed the mother and the father as being unable to protect X from that risk.  In that context, the court further assessed X’s welfare as requiring the removal from her parents’ care.  The local authority has to date placed nothing before the court that justifies those conclusions being revisited.

56.          In the foregoing circumstances, it is the expectation of this court that the local authority will accord the highest respect to the risk assessment and welfare assessment of this court and will now implement the decision made by the court in these proceedings consequent on its assessment of risk and welfare on 31 January 2024.  I shall list the matter for further hearing on 14 March 2024 before Arbuthnot J for the local authority to confirm to the court that this is the course of action that it now intends to take or to seek to persuade the court on proper evidence that the court should now revisit its risk and welfare assessments.  I will make further directions accordingly.

By the time of writing, that hearing before Arbuthnot J should have taken place, and I shall watch out for the decision. I suspect that the phones of the people who find placements for children will have been glowing red hot in the frantic efforts to find a placement, which as I said at the outset is not a problem unique to this Local Authority.

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Important High Court decisions on cognitives and intermediaries

Posted on February 27, 2024 by suesspiciousminds

These are two important Lieven J authorities which will be useful for all practitioners. .

West Northamptonshire Council v The Mother (Psychological Assessments) [2024] EWHC 395 (Fam) (23 February 2024)

https://www.bailii.org/ew/cases/EWHC/Fam/2024/395.html

It was an application for a cognitive assessment, made by those representing the mother, which was withdrawn on the day of the hearing, but the Judge considered that it raised issues that might benefit from a judgment.

I think that it is warranted – not that the features of this case were particularly bad or unique, but rather that maybe people have got a bit lax on the rules and the law since 2014 and a judicial refresher might be in order.

The application basically said this:-

The Court is requested to commission the instruction of a psychologist to undertake a cognitive assessment of the Mother to assist both the Local Authority and the court in ascertaining:
a) How any assessments should be conducted of her;
b) Her level of intellectual functioning to assist professionals in understanding how she retains information, learns parenting skills and acts on advice;
c) What support she is likely to require in any court hearings and meetings with professionals.

  1. Instructing Solicitors on behalf of [the Mother] is of the understanding that the information identified within a cognitive functioning assessment would identify recommendations which the court and professionals must utilise to ensure that [the Mother] is fairly represented within proceedings.
  2. A cognitive assessment will provide valuable insight to parties regarding how hearings or cross examination should be conducted in respect of [the Mother] and whether she will require any assistance within proceedings moving forward. If a cognitive assessment was not completed, it is believed that [the Mother’s] Article Six Rights to a fair trial will not be upheld.
  3. Furthermore, the Local Authority is likely to carry out further assessments during the course of proceedings. The cognitive assessment will be informative in respect of [the Mother’s] cognitive needs in order for appropriate measures to be put in place. This would allow [the Mother] to engage meaningfully and entirely with all meetings, assessments and court hearings.”

And those are all good reasons WHY, if the mother had a cognitive difficulty, the report would be necessary to assist the Court. What was lacking really was why it was asserted that the mother had a cognitive difficulty.

The statement in support stated at paragraph 11:
“The Mother is deemed vulnerable due to her age, her past experiences and mental health issues. The mother has indicated that she struggles with engaging within professional meetings and retaining information.”
It hardly needs stating that these three matters are exceedingly common in care proceedings, and do not begin without further detail, to justify a psychological assessment. An application under Part 25 for a psychological/cognitive assessment must be accompanied by proper evidence which explains why the case goes beyond the standard difficulties faced by many parents in care proceedings. The evidence must explain why the parent’s needs cannot be properly managed by careful use of language and the professionals taking the time to explain matters in an appropriate manner. The evidence must address why such an assessment is necessary rather than just something that would be “nice to have”.
It would often be the case that if one parent does have cognitive issues this will have been identified at school, during previous interactions with the Local Authority and/or in pre-proceedings work. These earlier interventions will frequently identify whether there are cognitive challenges, and how they can best be handled

The Court was somewhat critical of the Guardian’s position in remaining ‘neutral’ despite the skeleton argument being plain that the test of necessity was not made out.

It is in my view unfortunate that the Guardian and her solicitor stated they were “neutral”. It is quite clear from the Skeleton that the Guardian did not consider the test of necessity in Part 25 to have been met, but still remained neutral on the application. Guardians, and the Children’s solicitors, play an important role in care proceedings in ensuring that the interests of the child are met by minimising delay and maximising the efficient use of resources, in particular by assisting the Court to “Make Cases Smaller”, see the President of the Family Division’s The Road Ahead. If it is clear to the Guardian and the Child’s solicitor that an application should be refused, then they should make that clear to the Court.

Having outlined the test and the meaning of necessity, the Court reminded everyone of the Advocates Gateway and the steps that advocates and the Court can take to make it easier for parents to follow proceedings and understand what is happening.

In deciding whether to allow an application for a psychologist to carry out a cognitive assessment, it is also critical to bear in mind the existence of the Advocates Gateway and the requirement for all those working with parents in care proceedings to be sensitive to their needs. I referred to the Advocates Gateway and the need for all those working in this part of the justice system to be familiar with it and apply its principles in West Northamptonshire Council v KA (Intermediaries) [2024] EWHC 79 at [46]. It would only be appropriate to order a psychological assessment relevant to the Court process if the approach in the Advocates Gateway was plainly insufficient.
It will often be the case that parents may struggle to absorb information, to understand the proceedings and to concentrate through meetings and hearings. However, the solution to this problem is not, in the majority of cases, to have cognitive assessments and appoint intermediaries. It is for all the professionals involved, including lawyers and judges, to bear closely in mind the need to use simple language, avoid jargon, and where appropriate check that a litigant has understood what is being said. That is all set out in the Advocates Gateway.
Conclusions

This application does not come close to meeting the test of being “necessary” to resolve the proceedings, and in my view should never have been made. The fact that Mr Leach referred to taking a “belt and braces” approach indicates strongly that the proper test was not being considered either by counsel when she advised or by the solicitors when they made the application. Unfortunately, such misconceived applications are exceedingly common, particularly in respect of applications for psychologists to undertake cognitive assessments.
Such applications waste considerable resources, both in the courts, but also in the local authorities and Cafcass when they lead to unnecessary hearings and unnecessary expense. It is important that they are not granted without the Court properly addressing the correct test.
Mr Leach referred to a psychological assessment being useful in determining what support the Mother would need to help care for the child in the future. But that is not the purpose of the Part 25 application. Further, and in any event, that type of analysis is one that all social workers should necessarily be very familiar with. There was again nothing in this case which justified going beyond normal good social work practice.
A test of necessity does not mean that a report would be “nice to have” or might help in determining what psychological support the parent might need in the future. That is not necessary to resolve the proceedings.
For all these reasons I refuse the application for a psychological assessment.

The intermediary case referred to above, is also a Lieven J authority, and it is a very important one. I did mean to write about it last month, so it is a good place to pick up on it here.

The Court looked at the Court of Appeal guidance in a criminal case  R v Thomas (Dean) [2020] EWCA Crim 117. and said that the same principles outlined there apply.

The following principles can be extracted from this passage:
a. It will be “exceptionally rare” for an order for an intermediary to be appointed for a whole trial. Intermediaries are not to be appointed on a “just in case” basis. Thomas [36]. This is notable because in the family justice system it appears to be common for intermediaries to be appointed for the whole trial. However, it is clear from this passage that a judge appointing an intermediary should consider very carefully whether a whole trial order is justified, and not make such an order simply because they are asked to do so.
b. The judge must give careful consideration not merely to the circumstances of the individual but also to the facts and issues in the case, Thomas [36];
c. Intermediaries should only be appointed if there are “compelling” reasons to do so, Thomas [37]. An intermediary should not be appointed simply because the process “would be improved”; R v Cox [2012] EWCA Crim 549 at [29];
d. In determining whether to appoint an intermediary the Judge must have regard to whether there are other adaptations which will sufficiently meet the need to ensure that the defendant can effectively participate in the trial, Thomas [37];
e. The application must be considered carefully and with sensitivity, but the recommendation by an expert for an intermediary is not determinative. The decision is always one for the judge, Thomas [38];
f. If every effort has been made to identify an intermediary but none has been found, it would be unusual (indeed it is suggested very unusual) for a case to be adjourned because of the lack of an intermediary, Cox [30];
g. At [21] in Cox the Court of Appeal set out some steps that can be taken to assist the individual to ensure effective participation where no intermediary is appointed. These include having breaks in the evidence, and importantly ensuring that “evidence is adduced in very shortly phrased questions” and witnesses are asked to give their “answers in short sentences”. This was emphasised by the Court of Appeal in R v Rashid (Yahya) [2017] 1 WLR 2449.
All these points are directly applicable to the Family Court. Counsel submitted that there was a need for intermediaries because relevant parties often did not understand the proceedings and the language that was being used. However, the first and normal approach to this difficulty is for the judge and the lawyers to ensure that simple language is used and breaks taken to ensure that litigants understand what is happening. All advocates in cases involving vulnerable parties or witnesses should be familiar with the Advocates Gateway and the advice on how to help vulnerable parties understand and participate in the proceedings. I am reminded of the words of Hallett LJ in R v Lubemba [2014] EWCA Crim 2064 at [45] “Advocates must adapt to the witness, not the other way round”. A critical aspect of this is for cross-examination to be in short focused questions without long and complicated preambles and the use of complex language. Equally, it is for the lawyers to explain the process to their clients outside court, in language that they are likely to understand.
Finally, it is the role of the judge to consider whether the appointment of an intermediary is justified. It may often be the case that all the parties support the appointment, because it will make the hearing easier, but that is not the test the judge needs to apply.

Practitioners are referred specifically to that first principle :- a. It will be “exceptionally rare” for an order for an intermediary to be appointed for a whole trial.

It does not seem to have been exceptionally rare for that to happen in any case involving even a request for an intermediary to develop into that. We shall see how it plays out.

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A line from Hull to Bristol

Posted on August 9, 2023 by suesspiciousminds

This is a Court of Appeal decision about care orders at home, and the difference in practice and approach in two (not quite halves) parts of the country. I chatted about this on what we now have to call X yesterday and it drew some interest, so I’m doing a post on it.

Basically, the Court of Appeal were considering a case where a Court had made a Care Order and the child was placed at home. They raised within the appeal broader issues of how the issue of Care Orders at home was being dealt with differently based on whether your Court fell North or South of that imaginary line across the country between Hull and Bristol.

The Court of Appeal (or those who decide these things) felt the case was sufficiently important to make it to the judiciary website – it isn’t yet on Bailii

Re JW (Child at Home under Care Order) [2023] EWCA Civ 944

JW (Child at Home under Care Order)  

http://www.judiciary.uk/judgments

For some years it has been recognised that a difference exists in the approach taken by
courts in different regions when determining whether a final care order, supervision
order or no order should be made when care proceedings conclude with a plan for the
subject child to be placed, or remain living, at home with their parent(s). Broadly
speaking, if a line is drawn from Hull down to Bristol and beyond, courts in England
and Wales that are North and West of that line will often make a care order in such
cases, in contrast to courts South and East of the line where normally a supervision
order or no public law order will be made. My experience is that the judges who sit on
one side of the line or the other are confident that the approach taken in their area is the
correct one. The difference of approach is striking, and its existence has become
something of a hot potato, and increasingly so as Family Courts across England and
Wales strive, once again, to conclude public law care proceedings within the statutory
26 week time limit set by Children Act 1989, s 32(1) [‘CA 1989’].

The Court of Appeal go on to say that the last time the issue of Care Orders at home versus Supervision Orders at home was really explored in detail on appeal was in Baker J’s decision of Re DE – a case which really looked at what, from a human rights perspective, the process would be for a Local Authority to use the power under a Care Order to remove and thus disturb the care plan approved by the Court. It isn’t as simple as the LA having the power and using it – they have to follow a careful process and meet tests to ensure fairness, and there’s not an easy method for parents to challenge it – or at least challenge it with lawyers who are being financially recompensed for the work involved.

Re DE looked, at least to a lawyer on the Southern side of that divide, like it was the end of a practice of care orders at home, save in the most exceptional cases. The LA have all of the responsibility but frankly none of the power, and the parents have the spectre of the LA over them until the child is an adult and the fear that the power might be used. It doesn’t seem like an order anyone would want.

But apparently, it was not the end of that practice. My best guess is cases where a Court is worried about a child being at home and dubious about a Supervision Order being enough, but doesn’t feel placement outside the family is justified, reaching for a Care Order as being a middle ground where a greater risk can be managed at home knowing that the LA have statutory responsibilities. I don’t, however, know how that translates into the diffference either side of the Hull-Bristol line.

(The facts of this case were that the parents had 3 children aged 14, 11 and 7. The mother met and married a man named Mr P, who she learned after her marriage had been convicted for possession of indecent images of children – and obviously what an awful thing to learn. She separated from Mr P but there were concerns that she had been allowing him unauthorised contact with the children. If Mr P disappeared from the family life completely then the children would be safe at home, but would that actually happen? The Court made a Care Order for the 3 children with them to remain living with mother, presumably so that the LA could use the Re DE process to remove the children if Mr P was caught having unauthorised contact)

The mother appealed, arguing that rather than make such a draconian order, the Court should have extended the proceedings for fuller assessment of her ability to protect.

This being a judgment led by the President of the Family Division, the law and history of the law about Care Orders versus Supervision Orders is set out clearly and succinctly, and it would be an excellent basis for any lawyer constructing submissions on the point.

The judgment also discusses the Public Law Working Group (PLWG) who considered these issues and provided written guidance, which indicates that:-

‘34. The making of a care order on the basis of a plan for the child to remain in
the care of her parents/carers is a different matter. There should be exceptional
reasons for a court to make a care order on the basis of such a plan.

  1. If the making of a care order is intended to be used [as] a vehicle for the
    provision of support and services, that is wrong. A means/route should be
    devised to provide these necessary support and services without the need to
    make a care order. Consideration should be given to the making of a supervision
    order, which may be an appropriate order to support the reunification of the
    family.
  2. The risks of significant harm to the child are either adjudged to be such that
    the child should be removed from the care of her parents/carers or some lesser
    legal order and regime is required. Any placement with parents under an interim
    or final order should be evidenced to comply with the statutory regulations for
    placement at home.
  3. It should be considered to be rare in the extreme that the risks of significant
    harm to the child are judged to be sufficient to merit the making of a care order
    but, nevertheless, the risks can be managed with a care order being made in
    favour of the local authority with the child remaining in the care of the
    parents/carers. A care order represents a serious intervention by the state in the
    life of the child and in the lives of the parents in terms of their respective ECHR,
    article 8 rights. This can only be justified if it is necessary and proportionate to
    the risks of harm of the child    .’

I would set that out in a table, but I can’t know how to hear any more about tables. *

The Court of Appeal were very mindful of the wider issues in the case, and that it did not sit comfortably that two entirely different philosophical approaches to care orders at home existed in the country and markedly so on geographical lines – the North taking the view that Care Orders at home were part of a judicial toolkit for problem-solving and the South that they were a very serious intervention that would only very rarely be warranted. This needed to be resolved.

  1. 65. The present situation, in which the law is applied in a markedly different manner in two
    halves of England and Wales, cannot continue. There needs to be a common approach
    throughout England and throughout Wales. What that common approach should be has
    been determined through consultation and discussion by the multidisciplinary
    membership of the PLWG. The recommendations at paragraphs 158 to 162, and the
    Best Practice Guidance at paragraphs 34 to 37, of the PLWG March 2021 report, and
    Appendix C of the April 2023 report on supervision orders, which have already had
    extra-curial endorsement, I now formally endorse in a judgment of this court. They
    must be applied in all cases. The approach taken by the PLWG is no more than the
    logical development of the earlier caselaw, once account is taken of the need for
    proportionality and once it is understood that, following Re DE, there are only
    procedural differences between the power of removal where there is a care order or
    where there is none. As Hale J/LJ made plain, it has never been the case that a care
    order should be used as a means to ensure that a local authority meets the duties that it
    has with respect to children in need in its area, nor should it be used to influence the
    deployment of resources.
  2. The PLWG recommendations and guidance can be reduced to the following short
    points:
    a) a care order should not be used solely as a vehicle to achieve the
    provision of support and services after the conclusion of proceedings;
    b) a care order on the basis that the child will be living at home should only
    be made when there are exceptional reasons for doing so. It should be
    rare in the extreme that the risks of significant harm to a child are judged
    to be sufficient to merit the making of a care order but, nevertheless, as
    risks that can be managed with the child remaining in the care of parents;
    c) unless, in an exceptional case, a care order is necessary for the protection
    of the child, some other means of providing support and services must
    be used;
    d) where a child is to be placed at home, the making of a supervision order
    to support reunification may be proportionate;
    e) where a supervision order is being considered, the best practice guidance
    in the PLWG April 2023 report must be applied. In particular the court
    should require the local authority to have a Supervision Support Plan in
    place.
  1. The impact of the requirement for a 26-week timetable and adherence to the PLO mean
    that the decision as to what final order to make may occur at a comparatively early stage
    where a child has been removed from home, but a rehabilitation plan is being implemented. In such cases, there may be grounds for extending the 26-week deadline to some extent, but where, as in the present case, the children are settled at home and what is taking place is the reinforcement and further development of protective measures over an extended period, the court should make a final order rather than contemplating extending the proceedings over an extended or indeterminate period.

The Court granted the appeal (though to make Supervision Orders rather than extend the proceedings.

*TABLES! is a reference to one of my latest obsessions, “I think you should leave” and this sketch below, which yes, i’m just crowbarring in because I love it. Warning, it does contain some strong language, so NSFW

“why was there swearing?”

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Reason to believe – what are the odds???

Posted on May 26, 2023 by suesspiciousminds

The test for making interim orders under the Mental Capacity Act is similar (but not quite the same as) the threshold test for making interim care/supervision orders under the Children Act 1989

Section 48 provides:

“Interim orders and directions

The court may, pending the determination of an application to it in relation to a person (“P”), make an order or give directions in respect of any matter if:(a)

there is reason to believe that P lacks capacity in relation to the matter,(b)

the matter is one to which its powers under this Act extend, and(c)

it is in P’s best interests to make the order, or give the directions, without delay.”

s38(2)A court shall not make an interim care order or interim supervision order under this section unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2).

The difference between the two being that the threshold for interim care/supervision orders is that the Court is ‘satisified’ that there are ‘reasonable grounds for believing’ rather than the Mental Capacity Act formulation of ‘there is reason to believe’

Up until now, no Court has quantified in percentage terms what ‘there is reason to believe’ is – Courts have just decided whether based on the evidence presented at an interim stage, the Court considers that there’s reason to believe in s48 MCA cases and whether they are satisfied that there are reasonable grounds to believe in s38 Children Act cases.

It hasn’t been considered necessary until now for a Court to unpeel those tests into the percentage degree of certainty that a Court has to have in order to make that decision. Until now.

A Local Authority v LD and Another 2023

https://caselaw.nationalarchives.gov.uk/ewhc/fam/2023/1258

If you had “Mostyn J” in your sweepstake, congratulations!

Mostyn J, as always, carefully sets out and draws on the jurisprudence to derive his decision, which is this:-

‘rather higher than 25% or at odds shorter than 3-1 (but not odds on)’

Now, for the time being, that’s certainly the test for section 48 Mental Capacity Act cases. I can’t say whether this principle is going to be imported into s38 Children Act cases.

The wording is, as I’ve highlighted above, different for s48 MCA and s38 Children Act 1989, although one of the sources that Mostyn J draws on in the judgment says this:-

Spectrum: In particular, it is possible to identify the two ends of the spectrum. A requirement to “suspect” something before acting is the lowest level, and a requirement to “be satisfied” is the highest.”

My suspicion is that this case just got put on a whiteboard somewhere at the Court of Appeal and will be tidied away in due course. See recent posts… But who knows?

For my part, I think a formulation that a Judge is satisfied that there are reasonable grounds to believe that the threshold criteria are met pending a full resolution of the case is cleaner and less subject to quibbling and challenge that a Judge declaring in Court that they have concluded that there is a 29% probability that the Local Authority will demonstrate to the burden of proof at a later date that the threshold criteria is satisfied.

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Leave to oppose adoption test – the new test

Posted on May 2, 2023 by suesspiciousminds

The last time the Court of Appeal really grappled with the test on leave to oppose adoption it was Re BS 2013, which some of you may, just may, have heard of.

So it was with some trepidation that I read this case

M (A Child: Leave To Oppose Adoption) [2023] EWCA Civ 404 (18 April 2023)

https://www.bailii.org/ew/cases/EWCA/Civ/2023/404.html

A few big things arising from it :-

Firstly that the Court of Appeal say that in all cases where a Placement Order or Care Order is made, the Local Authority should obtain at its own expense a transcript of judgment and share with the parties. There is no analysis in this paragraph as to why, given the importance of the transcript to all, that the costs should not be shared between the LA and legal aid agency. I don’t know if this was the subject of argument, but it obviously places a substantial additional expense on LA budgets – luckily at a time when the Government coffers are very much overflowing and they are desperate to get all of that surplus money out to Local Authorities, whose biggest problem with that are building extensions to the Scrooge McDuck-esque swimming pool of gold coins that are presently too small.

Transcripts of judgment in placement order proceedings

A decision to approve adoption as a child’s care plan is of huge importance to the child, to the birth family and to the adoptive family. The reasons for the decision will appear in a judgment or in justices’ reasons and are likely to be of interest or importance to anyone concerned with the child. They may also be important to the child in later life. There is therefore a duty on the court and on the local authority to ensure that the record is preserved. Considering the amount of care and expense that will have been invested in the proceedings, that seems elementary.
A further reason for creating a record of the reasons for a placement order is that the order may not be the end of the litigation about the child. The court may have to consider an application for permission to apply to revoke the order or an application for permission to oppose the making of an adoption order. In this situation, it may be difficult to deal with the application fairly without sight of the judgment that was made at the time of the placement order. In particular, as my Lady, Lady Justice Macur noted in Re S (A Child) [2021] EWCA Civ 605 at [32] a transcript provides the baseline against which to assess whether there has been a change in circumstances.
Accordingly in my view, when giving reasons for making a placement order, the court should always order the local authority to obtain a transcript of its judgment, unless it has handed down a written version or made arrangements for there to be an agreed and approved note. The same applies in cases where a final care order is made, though that is not the focus of this appeal.

Anyway, that’s done now – get transcripts in all cases with placement orders or care orders (though you may remember that the transparency guidance was that that Judges should publish all such judgments on bailii – and that seems to be a custom honoured in the breach more than the observance and would have rendered this moot)

Second is the refined test

I would therefore state the essential questions for the court when it decides an application for leave to oppose the making of an adoption order in this way:

  1. Has there been a change in circumstances since the placement order was made?
  2. If so, taking account of all the circumstances and giving paramount consideration to this child’s lifelong welfare, should the court revisit the plan for adoption that it approved when making the placement order?

More detail on the two limbs later

Third is the continuing judicial equivalent of a Wikipedia edit war, where the Court of Appeal give a decision, Mostyn J then gives a decision ‘correcting it’ and the Court of Appeal then overturn the Mostyn J decision though not on an appeal of that case but just the next time a case comes up that refers to it. (see earlier post today)

In this case, it is the decision by Mostyn J that a ‘change of circumstances’ has to mean something that wasn’t present or foreseen/foreseeable at the time.

I also reject the suggestion that the change must be unexpected or unforeseen. This proposition was advanced in obiter dicta in the decisions in Prospective Adopters v SA [2015] EWHC 327 (Fam) at [16-19] and in Prospective Adopters v London Borough of Tower Hamlets [2020] EWFC 26 at [5]. In the earlier case, Mostyn J stated:
“Obviously the words “a change in circumstances” are not intended to be read literally. As soon as the placement order is made circumstances will change if only by the effluxion of time. What Parliament clearly contemplated was proof of an unexpected change in the basic facts and expectations on which the court relied when it made the placement order.”
While in the later case he added:
“Obviously, changes that were clearly either foreseen or which were foreseeable at the time of the original order cannot qualify. Otherwise, the provision would be just another variation power.”
This approach finds no support in Re P, something that Mostyn J addressed in Re SA at [28]:
“Re P did not however address the question which I have identified namely whether the change in circumstances should be unexpected. In my judgment, in the absence of a specific reference by Parliament to actually foreseen changes (in contrast to section 14(2)(a) of the Matrimonial Proceedings and Property Act 1970) the changes in question must be unexpected and must exclusively attach to the basic facts and expectations which underpinned the initial order.”
There are several reasons for rejecting this approach:
(1) The language of the sub-section is simple and there is no reason to gloss it.
(2) In Re SA at [14] Mostyn J said that he intended to look at the provisions from first principles, but there was no occasion for him to do that. The issue of whether change must be unexpected, unforeseen or unforeseeable (and the concepts are not the same) did not arise in Re SA or in Tower Hamlets. The law had been recently and authoritatively stated in this court’s decisions in Re P and in Re B-S.
(3) The proposition was inspired by an analysis of statutory provisions relating to the court’s power to vary maintenance agreements: Re SA at [17-19]. Those provisions are irrelevant to legislation about the adoption of children. They concern changes of circumstance that occur following bargains made between the parties. The Act concerns placement orders imposed by the court for reasons of child welfare. The proper approach to construction will in each case be conditioned by the very different statutory purposes of these unrelated pieces of legislation.
(4) In the absence of a relevant contrary indication, the only conclusion that can reliably be drawn from the fact that a statute does not say whether a change of circumstances is foreseen or unforeseen is that it can be either. There is also a false logic to the argument that, because Parliament has amended one statute to provide that a change of circumstances may include a foreseen change of circumstances, every statute that does not do the same must mean the opposite.
(5) In the context of the Act, there is no reason whatever to raise the bar by burdening parents with the additional obligation of showing that the changes they rely upon were unexpected or, put another way, to deprive them of the opportunity to rely on changes that were foreseen or foreseeable. As Lord Justice Holroyde observed during argument, that would be very unfair. Expectations are not binary, foresight cannot be calibrated, and there may be a number of future possibilities of varying degrees of likelihood. For example, a parent may say at the placement order hearing that he will achieve sobriety or become drug-free, but the court may not be convinced. If, by the time of the adoption proceedings, he is sober, that cannot sensibly be regarded either as unexpected, unforeseen or unforeseeable simply because it was uncertain or because the alternative was more likely. Why should he be worse off for having achieved something the court foresaw as possible but did not consider probable?
(6) To introduce a requirement relating to expectations would be unworkable and add needless complication to what is no more than a threshold test. When it makes a placement order, the court reaches a conclusion about the need for adoption. It cannot state every expectation it may have for the future, and it cannot know when the adoption application will be made. Trying to decide what was or was not expected, foreseen or foreseeable could only distract from the simple question of whether there has been a change between the facts that existed then and the facts that exist now.
For these reasons, the proposition in Re SA is wrong and should not be followed.

For my part, I can see some sense in Mostyn J’s view, but that’s pretty academic now.

Fourthly, and this is really good news, there’s a change to LASPO which should make it easier for parents to get legal aid to make these applications – HUGE !!

There is further refinement to the second limb of the test, which has always been the much more difficult element to grapple with.

Here the Court of Appeal say that the prospect of success of the opposal to the adoption order being made is an important factor but it is not a test, still less a determinative one.

From this, it can be seen that the prospect of success in opposing adoption if leave is granted is an important element to which the court must have regard, but it is not a test in itself, still less an exclusive one. It is helpful as a reminder that the question to be answered is whether or not there should be an opposed adoption hearing. However, the expressions ‘more than just fanciful’ and ‘solid’ are not true opposites, in that something that is not fanciful may fall short of being solid. This may lead to the court being pressed with different formulations and can cause inconsistency if the court treats prospects of success as the only benchmark.
I also note that there will be cases, of which the present one is an example, where the distinction between opposition to an adoption order and rehabilitation to a parent collapses. That situation will arise, and not uncommonly, where adoption and rehabilitation are the only possible outcomes.
Drawing matters together, I suggest that the essential question for the court at the second stage is this: Taking account of all the circumstances and giving paramount consideration to this child’s lifelong welfare, should the court revisit the plan for adoption that it approved when making the placement order? By asking this question, the court ensures that it focuses firmly on the individual child’s welfare in the short, medium and long term with reference to every relevant factor, including the nature and degree of the change that it has found, the parent’s prospects of success, and the impact on the child of contested proceedings.
In framing the essential question in this way, I do not overlook the fact the parent is seeking leave to oppose the making of this specific adoption order. However, in the great majority of cases, the basis of the proposed opposition is that the child should not be adopted at all. Much less frequently, the opposition may involve an objection to the specific identified adopters, and in those cases, the factors to be taken into account when answering the question will need to be adapted accordingly.
Finally, the application for leave to oppose must be decided on proper evidence but experience confirms that oral evidence is not usually necessary. The court will want to take a broad view of the evidence before it, as befits a decision at the leave stage. There has been a very recent and welcome change to the availability of legal aid for parents making applications to oppose adoption: see Regulation 5 of The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023. This should enhance the fairness of the process and assist the parties and the court to focus on the issues, but at the same time the court must ensure that hearings and timetables are not unduly lengthened.

So the Court of Appeal approved way of looking at the second limb of the test is this

Taking account of all the circumstances and giving paramount consideration to this child’s lifelong welfare, should the court revisit the plan for adoption that it approved when making the placement order?

That seems easier to follow than the previous principle of ‘solidity’ which I must confess I’ve never had a ‘solid’ grasp on.

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Reopening findings of fact

Posted on May 2, 2023 by suesspiciousminds

This is a Court of Appeal decision, which tidies up an area of law where the Court of Appeal has given a decision and then the High Court has ‘clarified’ and amended the test set out. (and yes, this is not the first time this blog has written about that sort of thing in the last few years, and also yes, there’s going to be another one on exactly the same point later today)

Probably the most important thing to arise from the judgment is this:-

48. A judge’s main responsibility is to decide the case in hand. The High Court and the appeal courts may also give rulings on matters of law to ensure that the law is correct, accessible to litigants and the public, and expressed in a way that is helpful to trial judges. This additional responsibility is not a vehicle to pursue a legal theory or to run the rule over binding decisions of higher courts, all the more so where the issue does not arise in the individual case. The analysis in Re RL was, and could be, of no legal effect: see Rochdale Metropolitan Borough Council v KW [2015] EWCA Civ 1054, [2015] WLR(D) 425. Decisions that reformulate a binding legal test or set up a different test are bound to be cited to trial judges and operate as a distraction and a drain on resources, as exemplified by the need for this appeal.

49. More fundamentally, it is a misconception that the time-tested approach to reopening findings of fact in children’s cases has been arrived at in ignorance or defiance of the principles of res judicata in civil proceedings. There is rightly considerable consistency in the response of all courts to attempts to relitigate (see for example Re W at [28], cited at paragraph 9 above) but formulations cannot be cloned from one context to another without regard to their effect. Proceedings about children take place in the context of a statutory welfare imperative and, as the present appeal shows, reopening applications may arise in a very wide range of circumstances. In order to achieve just, welfare-based outcomes in these cases, the law operates a test that differs for good reason from a test identified in another context. The formulation in Re RL originates in the decision in Phosphate Sewage Co Ltd v Molleson (1879) 4 App Cas 801, which arose from efforts to relitigate a claim in bankruptcy, but Re RL and the present case required the court to evaluate the very different considerations that arise in cases of child welfare. The applicable law is clear and there is no need to unsettle it for the sake of theoretical conformity by transposing a test devised in a different legal context.

If you are wondering which particular High Court Judge decided Re RL, you might well be able to make an educated guess.

In this particular case

Re J (Children: Reopening Findings of Fact) 2023

https://www.bailii.org/ew/cases/EWCA/Civ/2023/465.html

There had been a previous set of private law proceedings involving the Father and a child A, his stepdaughter, who had made allegations of sexual assault against him. He was found not guilty in the Crown Court (2020) and no findings were made in the private law case against him (2021)

His daughter with another woman, D, made an allegation of sexual assault against him in 2022, and the Local Authority issued care proceedings.

Its case is that the threshold is met on three possible bases: assault on D in 2022, assault on A in 2019, or emotional abuse by M, including by fostering false allegations by D and/or by A. Meanwhile the children are living with M and contact between F2 and C and D is not taking place. The picture is of a complex and deeply unhappy family situation in which the threshold of significant harm has surely been crossed: the questions for the court are how, and with what consequences. The forensic effect of the earlier family proceedings is that the alleged assault on A is taken as not having occurred

The LA applied for those findings of fact (or absence thereof) in the private law proceedings to be reopened.

The Court at first instance were taken to the Court of Appeal authorities on the point

5. The law in relation to reopening findings of fact in children’s cases is settled. It is to be found in the decisions of this court in Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447, [2019] 1 WLR 6765 and Re CTD (A Child) (Rehearing) [2020] EWCA Civ 1316, [2020] 4 WLR 140. These authorities endorse the decisions of Hale J in Re B (Minors)(Care Proceedings: Evidence) [1997] 2 All ER 29, [1997] Fam 117, [1997] 1 FLR 285, [1997] 3 WLR 1 and Munby P in Re Z (Children) (Care Proceedings: Review of Findings), [2014] EWFC 9, [2015] 1 WLR 95, [2014] All ER (D) 143.

6.In summary, the test to be applied upon an application to reopen a previous finding of fact has three stages. Firstly, the court considers whether it will permit any reconsideration of the earlier finding. If it is willing to do so, the second stage determines the extent of the investigations and evidence that will be considered, while the third stage is the hearing of the review itself.
In relation to the first stage: (i) the court should remind itself at the outset that the context for its decision is a balancing of important considerations of public policy favouring finality in litigation on the one hand and soundly-based welfare decisions on the other; (ii) it should weigh up all relevant matters, including the need to put scarce resources to good use, the effect of delay on the child, the importance of establishing the truth, the nature and significance of the findings themselves and the quality and relevance of the further evidence; and (iii) above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any a different finding from that in the earlier trial. There must be solid grounds for believing that the earlier findings require revisiting.

7.As Mr Aidan Vine KC rightly submitted, the requirement for ‘solid grounds’ is a part of the evaluation that the court must carry out. It is not a shorthand substitute for it.

8. In Re W (Children: Reopening: Recusal) [2020] EWCA Civ 1685, [2021] 2 FCR 793 at [28], I said this:
“It is rare for findings of fact to be varied. It should be emphasised that the process of reopening is only to be embarked upon where the application presents genuine new information. It is not a vehicle for litigants to cast doubt on findings that they do not like or a substitute for an appeal that should have been pursued at the time of the original decision. In Re E at [16] I noted that some applications will be no more than attempts to reargue lost causes or escape sound findings. The court will readily recognise applications that are said to be based on fresh evidence but are in reality old arguments dressed up in new ways, and it should deal with these applications swiftly and firmly.”

9. As I noted in Re E at [50], the approach to applications to reopen is now well understood and there is no reason to change it. During the hearing of this appeal, counsel agreed that the judge in the case, Her Honour Judge Skellorn KC, directed herself correctly and they confirmed that in their experience the courts are having no difficulty in applying the guidance that has been given. That is also the experience of this court: applications for permission to appeal give no indication that the practice of the last 25 years needs revision.

The Court at first instance was also taken to the High Court authority of Re RL , where Mostyn J was considering an application to reopen findings of fact and looked specifically at the ‘solid grounds requirement’,

L v Nottinghamshire County Council

This was an application by a mother to reopen a finding, made five years previously, that injuries to a baby had been inflicted by her or by the child’s stepfather. It was not a strong application and, after a careful analysis of the facts, Mostyn J dismissed it. However, his judgment contains a lengthy exegesis of the doctrine of res judicata in family proceedings, leading to a different version of the applicable test for reopening findings:
“42. The authorities identify two types of case where justice provides an exception to an estoppel preventing re-litigation of the same issue between the same parties:
i) First, and obviously, an anterior judgment can be challenged on the grounds that it was fraudulently obtained: Takhar v. Gracefield Developments Limited [2019] UKSC 13, [2020] AC 450.
ii) Second, an anterior judgment can be challenged on the ground that new facts have emerged which strongly throw into doubt the correctness of the original decision. In Arnold v National Westminster Bank Plc [1991] 2 AC 93 at 109 Lord Keith of Kinkel stated:
“….there may be an exception to issue estoppel in the special circumstance that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings. One of the purposes of estoppel being to work justice between the parties, it is open to courts to recognise that in special circumstances inflexible application of it may have the opposite result …”
This exception echoed the well-known decision of the House of Lords in Phosphate Sewage Company Limited v Molleson (1879) 4 App Cas 801 where Lord Cairns LC held that an anterior judgment can be challenged where additional facts had emerged which ‘entirely changes the aspect of the case’ and which ‘could not with reasonable diligence have been ascertained before.’ In Allsop at [26] the continuing validity of this exception was affirmed by the Court of Appeal.

  1. It therefore seems to me that Jackson LJ’s test of “there must be solid grounds for believing that the earlier findings require revisiting”, ought to be interpreted conformably with these exceptions if a divergence from the general law is to be averted. This would mean that “solid grounds” would normally only be capable of being shown in special circumstances where new evidence had emerged which entirely changes the aspect of the case and which could not with reasonable diligence have been ascertained before.
    …
  2. For my part looking at the matter from first principles I cannot see any reason why the general substantive law of res judicata should not apply to children’s cases. …
    …
  3. I naturally accept that Jackson LJ’s test is binding on me. I completely agree that there should be a Stage 1 form of permission filter. I completely agree that on a rehearing application mere hope and speculation will never be enough to gain permission. I am merely suggesting an interpretative reconciliation between the solid grounds test and the general law such that solid grounds will normally only be demonstrated where either the fraud exception, or the special circumstances exception, is satisfied.”

Effectively deciding that ‘solid grounds’ would mean in an application to reopen findings of fact either that there has been fraud OR that there is new evidence available which entirely changes the aspect of the case and could not with reasonable diligence have been ascertained before.

The Court of Appeal disagree and say that Re RL is an authority which should no longer be followed.

In this particular case, the Court of Appeal agreed with the decision of the first instance Judge to grant the reopening and refused the father’s appeal.

There are a number of cases potentially affected by para 48 of this judgment – one has been resolved (the test for change of circumstances in leave to oppose adoption – which will be the subject of a later post today, but one is the changes to the Court of Appeal test for circumstances which warrant a finding of fact hearing – the Court of Appeal having said that ‘benefits to the child of establishing the truth of the allegations’ and ‘risks to future children’ should be added to the list of factors to be considered and Mostyn J having determined that the Court of Appeal decided that wrongly having not referred to the proper authorities and taking them out.

Occasionally – as in the leave to oppose, my heart rather tends to agree with the Mostyn J analysis, but it clearly isn’t a satisfactory way for practitioners and Judges at the coalface to have to interpret law to have a steer from the Court of Appeal and then a change to fundamental issues of the test be reported as High Court decisions and have to wait for an appeal to clarify whether the original or current test is the one to be followed.

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Control of mobile phone

Posted on January 31, 2023 by suesspiciousminds

The High Court in this case was being asked to determine whether a situation where a child is in care and the Local Authority want to restrict their access to their mobile phone falls within a DEPRIVATION OF LIBERTY or an exercise of parental responsibilty.

I.e is it an action that requires the Court to sanction that restriction, or can a Local Authority do it under section 33 of the Children Act 1989?

Manchester City Council v P (Refusal of restrictions on mobile phone) 2023

https://www.bailii.org/ew/cases/EWHC/Fam/2023/133.html

On the facts of this case, P is 16 and vulnerable. She functions at the age of a 7 year old. She had a lot of periods of going missing and during those periods became the victim of Child Sexual Exploitation and sadly had a history of self-harming.

The Local Authority were asking the Court for permission for an arrangement that allowed them to withhold P’s mobile phone from her from 10pm at night to 8am, and for staff to be able to confiscate her mobile phone if her behaviour was escalating.

The legal debate in the case was as to whether those sort of restrictions on the use of a mobile phone were a deprivation of liberty, which have to be sanctioned by a Court, or whether the Local Authority were exercising Parental Responsibility.

Both the Local Authority and the Guardian in this case were saying that the confiscation of the phone was a restriction of liberty and thus needed Court sanction.

Here is what MacDonald J said about the submissions:-

On behalf of the local authority, Ms Whelan submits that such steps are an integral element of the continuous supervision and control and lack of freedom to leave that marks P out as being deprived of her liberty, having regard to the test articulated in Cheshire West and Chester Council v P [2014] AC 896 in the context of the prior decisions of the ECtHR, including Storck v Germany 43 EHRR 96. Ms Whelan submits that the restrictions on P’s mobile phone (and the associated restrictions concerning her tablet, laptop and access to social media) amount to a deprivation of liberty for the purposes of Art 5(1) when viewed in their proper context, namely as an essential element of the restrictive regime that deprives P of her liberty, without which the regime restricting P’s liberty could not be effective (Ms Whelan conceded that the authority for the proposition that, cumulatively and in combination, the elements comprising the implementation of a measure can amount to a deprivation of liberty, namely Guzzardi v Italy (1980) 3 EHRR 333, was decided on very different facts).


In the circumstances, Ms Whelan submits that the act of removing or restricting use of her mobile phone, tablet and laptop and restricting her access to social media, constitutes a deprivation of P’s liberty and thus can be authorised by the court under its inherent jurisdiction where such a course is in P’s best interests. In that latter regard, Ms Whelan points to the evidence that, prior to the restrictions concerning her devices being in place, P was speaking to peers who encouraged P to show behaviours such as, shouting at staff, being verbally aggressive and demanding, was sharing her address with her friends, befriending individuals online who she may not know and, on 24 August 2022, speaking to a female who told P tactics for restricting holds designed to prevent her harming herself so she could escape from such holds.


On behalf of P, Miss Swinscoe submits that the argument advanced by the local authority is brought into even sharper relief in circumstances where for P, in common with most children of her generation, a mobile phone is an integral aspect of what she considers to be her liberty. Echoing Ms Whelan’s submission that, for P, her mobile phone is very much an avenue to the outside world, particularly whilst locked behind closed doors, Miss Swinscoe points to the fact that the restrictions about which P is particularly concerned in this case are those placed on her mobile phone and social media access. Within this context, and in circumstances where the ECHR is said to be a ‘living instrument’, Miss Swinscoe submits that the meaning of liberty for a young person today is very different to the meaning of liberty when Sir David Maxwell-Fyfe, First Earl of Kilmur, was overseeing the formulation of the ECHR at the end of the Second World War, as Chair of the Council of Europe’s Legal and Administrative Division. In this context, Miss Swinscoe submits that a restriction on the use of P’s mobile phone, tablet and laptop, and the concomitant restriction of her access to social media, fits within Lord Kerr’s formulation of the meaning of liberty in Cheshire West at [76] (emphasis added):
“While there is a subjective element in the exercise of ascertaining whether one’s liberty has been restricted, this is to be determined primarily on an objective basis. Restriction or deprivation of liberty is not solely dependent on the reaction or acquiescence of the person whose liberty has been curtailed. Her or his contentment with the conditions in which she finds herself does not determine whether she is restricted in her liberty. Liberty means the state or condition of being free from external constraint. It is predominantly an objective state. It does not depend on one’s disposition to exploit one’s freedom. Nor is it diminished by one’s lack of capacity.”

In the alternative, both the local authority and the Children’s Guardian contend that if the removal of, or the restriction of the use of, P’s mobile phone, tablet and laptop, and restriction of her access to social media, do not constitute a deprivation of liberty for the purposes of Art 5(1), in circumstance where s.8 is not available in respect of a child who is the subject of a care order, the court can in any event, where necessary, authorise such a course under its inherent jurisdiction in the best interests of P.


Ms Whelan did not seek to dispute the proposition that, in principle, it would be open to the local authority to regulate P’s use of her mobile phone by exercising its parental responsibility under the care order pursuant to s.33 of the Children Act 1989, albeit that Ms Whelan expressed some concern, where P is now 16 years old, with respect to resorting to s.33 of the 1989 Act without guidance from the court that this constitutes a legitimate course (in circumstances where the courts have in other cases demarcated the ambit of s.33 of the Act, for example in Re H (A Child)(Parental Responsibility: Vaccination) [2020] EWCA Civ 664).


Ms Whelan submits, however, that where P refuses to co-operate with restrictions on her mobile phone, usually in times of emotional dysregulation where there is a risk that P will become violent, and where the use of her mobile phone is threatening her safety, for example by exposing her to contact with unknown individuals who may pose a risk of child sexual exploitation, it must remain open to the court to make an order under the inherent jurisdiction to remove or restrict the use of P’s devices in her best interests. Ms Whelan drew analogies with other cases in which the court utilises its inherent jurisdiction to impose steps upon a child designed to prevent the child suffering harm, for example were treatment is imposed on children suffering from anorexia nervosa (see Re C (Detention for Medical Treatment) [1997] 2 FLR 180). Ms Whelan submits that an order giving effect to the restrictions sought with respect to P’s mobile phone, tablet, laptop and access to social media would, in circumstances where their use presented a risk of significant harm to P, constitute a necessary and proportionate interference with P’s Art 8 rights having regard to the terms of Art 8(2).

On behalf of P, Miss Swinscoe submits that s.33 of the Children Act 1989 would operate to allow the local authority to regulate P’s use of her mobile phone in situations where P is co-operating. Miss Swinscoe points to the fact that whilst P wants to keep her mobile phone, she has been capable of agreeing that it is sensible to hand it to staff. Miss Swinscoe submits, however, that on the evidence before the court, the difficulty is when P becomes dysregulated and the local authority needs to restrict the use of her telephone against her refusal to co-operate in order to protect her safety, where there is clear evidence, Miss Swinscoe submits, that the use of the phone, and her other devices, by P can expose her to a risk of significant harm.

The Court was taken to a decision of the ECHR

In Guzzardi v Italy, a case concerning the conditions of remand on the Italian island of Asinara of a suspected Mafioso, one of the elements of implementation that appears, in combination with others, to have grounded a finding that a deprivation of liberty for the purposes of Art 5(1) had occurred was the requirement on the applicant to “inform the supervisory authorities in advance of the telephone number and name of the person telephoned or telephoning each time he wished to make or receive a long-distance call” (the other conditions being, in summary, to reside in a prescribed locality on the island; not to leave that area without notifying the authorities; to report to authorities twice a day when requested to do so; to be law abiding and not give cause for suspicion; not to associate with convicted persons; to obey a curfew; not to carry arms and not to frequent bars or nightclubs or attend public meetings). It is further of note that the restriction regarding telephone use was to prevent contact with other alleged criminals during a period of remand and that the applicant was liable to punishment by arrest if he failed to comply with that obligation. As conceded by the local authority during oral submissions, Guzzardi v Italy thus involved very different facts to those that are before this court.

The Court looked at the relevant statute and case law on deprivation of liberty, section 33 and inherent jurisdiction.

The decision paragraphs are set out at paragraphs 44-69, and are worth reading, but are probably too in-depth for the purposes of this blog.

What we are interested in chiefly is the decision, and it is this:-

In the circumstances, and for the reasons I have given, I refuse to sanction the removal of, or the restriction of the use of P’s mobile phone, tablet and laptop and her access to social media by way of an order authorising the deprivation of her liberty for the purposes of Art 5(1) of the ECHR. I shall instead, make a declaration that it is lawful for the local authority to impose such restrictions in this regard as are recorded in the order in the exercise of the power conferred on it by s.33(3)(b) of the Children Act 1989. Whilst I am satisfied that, were the evidence to justify it, it would be open to the court to grant an order under its inherent jurisdiction authorising the use of restraint or other force in order remove P’s mobile phone, tablet and laptop from her if she refused to surrender them to confiscation, the evidence currently before the court does not justify such an order being made. Finally, I am satisfied that the other restrictions sought by the local authority do constitute a deprivation of liberty for the purposes of Art 5(1) and that it is in P’s best interests to authorise that deprivation of liberty. I shall make an order in the terms of the order appended to this judgment.
Dicey considered the right to liberty to be one of the general principles of the Constitution (see Dicey, A V An Introduction to the Study of the Law of the Constitution (1885) 9th edn, MacMillan 1945, p 19). In R v Secretary of State for the Home Department ex p Cheblak [1991] 1 WLR 890, Lord Donaldson observed that “We have all been brought up to believe, and do believe, that the liberty of the citizen under the law is the most fundamental of all freedoms.” Within this context, it essential that the State adhere to the rule of law when acting to deprive a child of his or her liberty. This will extend to ensuring that an order lawfully depriving a child of his or her liberty does not act also to deprive that child of other cardinal rights without there being in place proper justification for such interference by reference to the specific content of those other rights.
Each case will fall to be determined on its own facts. However, I venture to suggest that it will not ordinarily be appropriate to authorise restrictions on phones and other electronic devices within a DOLS order authorising the deprivation of the child’s liberty. Further, it is to be anticipated that, in very many cases, any restrictions on the use of phones and other devices that are required to safeguard and promote the child’s welfare will fall properly to be dealt with by the local authority under the power conferred on it by s.33(3)(b) of the Children Act 1989. Only in a small number of cases should it be necessary to have recourse to an order under the inherent jurisdiction, separate from the order authorising the deprivation of liberty, authorising more draconian steps to restrict the child’s use of a mobile phone or other device and only then where there is cogent evidence that the child is likely to suffer significant harm if an order under the inherent jurisdiction in that regard were not to be made.
That is my judgment.

So it is something that the Local Authority can do under section 33 – it will be important as with any decision that the Local Authority make under s33 that they are properly consulting the child and parents, and properly recording their decision and the reasons for it.

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Unconditional consent

Posted on January 18, 2023 by suesspiciousminds

This is an Appeal about a decision to make a Parental Order in a surrogacy case.

Re C (Surrogacy : Consent) 2023

https://www.bailii.org/ew/cases/EWCA/Civ/2023/16.html

In the original hearing, the woman who gave birth to the child had become more attached to the child than she had envisaged when she originally agreed to the surrogacy, and she was concerned that she would be shut out of the child’s life if a Parental Order was made. She was not legally represented at the hearing and it took place remotely.

The mother at the hearing had said that she would agree to the making of a Parental Order IF and only IF there was a Child Arrangements Order to specify that she would be able to spend time with the child.

Parental Orders are governed by the Human Fertilisation and Embryology Act 2008 and one of the requirements in making them is :-

Section 54(6), with which the present case is concerned, provides that:
“(6) The court must be satisfied that both —
(a) the woman who carried the child, and
(b) any other person who is a parent of the child but is not one of the applicants […],
have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.”

(There’s a s54(7) which allows the Court to waive parental consent only if the biological parent cannot be found, but that isn’t relevant for this case. )

Unlike say a Placement Order which the Court can make even if the parent objects if the appropriate legal test is met, there is no discretion for the Court on a Parental Order – if the criteria in s54(6) is not met, the Court cannot make the Parental Order.

The Court did make a Parental Order and a Child Arrangements Order that the biological mother should be able to spend time with the child. The mother later appealed. There is also ongoing private law litigation about contact.

The issue as to whether the consent has been given freely, with full understanding of what is involved and unconditionally is a matter for the Court, and it is understandable that the Court of Appeal wanted to look very carefully at the transcript of the hearing.

The hearing took place between 10.08 am and 10.30 am. We have been provided with a transcript and have also listened to the recording. It is necessary to set out some parts of the transcript to fairly understand the course of the hearing, with editing to maintain anonymity.
The effective part of the hearing started with an introduction from the Respondents’ counsel. She explained that the parties had agreed the terms of a child arrangements order, and although the court could not make such an order on its own initiative in the parental order proceedings, it could grant permission for an application to be made under the Children Act, and then make an order. However, she noted the requirements of section 54(6) and informed the judge that Ms A would be saying that her consent to a parental order was conditional on the making of a child arrangements order. Counsel nonetheless invited the court to consider making a parental order on the basis of Ms A giving her consent, with a child arrangements order being made “as a separate matter”.
After some consideration of the Children Act provisions and the proposed contact arrangements, the judge then addressed the Appellant:
“THE JUDGE: Ms A, Ms Maxwell has outlined the position to me and, as I think you probably know, there are a number of matters in the statute, section 54, that I have to be satisfied about and one of those Ms Maxwell has rightly reminded me is that you, freely and with full understanding of what is involved, agree unconditionally to the making of the order. If you only agree to the making of the order if there is a child arrangements’ order, then that would obviously not be freely and unconditionally given consent.
The other matters in the statute are all dealt with amongst the papers in particular and also in Mrs Chapman’s report, so I do not think any of those cause me a difficulty in making the order. The only one that does is the consent because, although I understand there is an agreement that there will be contact, and I will be asked to make a child arrangements order, I cannot do that as a condition of making the parental order. I can only make the parental order if you freely consent and without conditions, so, first of all, does that make sense to you, what I have just said? I know sometimes for a non-lawyer it gets a bit convoluted. You are nodding so that is helpful, thank you.
Then, I suppose, first of all, is there anything you want to ask me and then is there anything you want to say in response, as it were?
The Appellant then replied in these terms:
MS A: Thank you, your Honour, there is nothing I want to ask you but in terms of the condition, the unconditional consent, I think I would be lying if I said that I unconditionally consent to it because it is a– I would like to see C and so I am making the parental– the consent on that I see C. If I– I don’t unconditionally give it because I am fearful that I won’t have time to spend time with C and so that’s why I can’t quite unconditionally consent.
However, I do believe it is in all of our interests to move on with our lives and to kind of start rebuilding our relationship again and I do feel that having a child arrangements order is best for all of us along with a parental order being made, but I couldn’t lie and say that I do give my consent unconditionally. If that helps, your Honour.”
The judge responded at some length, starting in this way:
“THE JUDGE: Well, it is very clear and I fully understand what you are saying. It does not help me– and this is not a criticism of you, it does not help me get over the legal obstacle. Let me look at it in a different way and, please, let me be very clear, I am not trying to put any pressure on you at all because that would be wrong, because the whole point is that I make an order only if everybody consents… I cannot make a child arrangements order in this particular proceedings probably for very good reason, because if it was part of the issues, then it probably would not be freely consented to…
She then explained that she would be content to hear an oral application for a child arrangements order, saying:
“So in terms of trying to reassure you, I am told that application would not be opposed. You could make it orally once I have concluded the making of a parental order but I cannot make the parental order unless you do consent to it… — and if you do not consent, and again I am not saying this in any way to put pressure on you– sometimes it may sound a bit like that but of course if you do not consent, you will all be in this limbo moving forward until somebody attempts to make a different application which obviously the applicants may do but I cannot adjudicate on that in advance.
So we are in a slightly difficult position… I think you consent to the concept that the applicants are, as it were, C’s parents and that is recognised in law. I think the issue is one of concern about the way forward for contact, so– but unless I have you unconditionally consenting I think we cannot move on from this limbo, so I am not– try to think about what I have just said for a minute and while you are thinking about that, I am going to go to Mrs Chapman to see if she would like to add or say anything because I think apart from this difficulty she feels that the criteria are met but I just want to check with her.
The judge then turned to Mrs Chapman, who confirmed that the Appellant was happy with the parenting C was receiving but that she did not want to consent because she wanted a legal right to spend time with C and was scared of having no contact.
The judge then returned to the Appellant for these important exchanges:
THE JUDGE: … so, Ms A, we are in the position that as a matter of law and also considering C’s welfare, I think all of us agree that a parental order is the right thing for him. Everybody agrees that it is right for him to see you and to know you but it is just coming back to the original question, so having heard what has been said, what is your thinking now?
MS A: Then the only way forward is for me to give my unconditional consent, your Honour.
THE JUDGE: I am sorry?
MS A: I will provide my unconditional consent.
THE JUDGE: And you are quite sure about that?
MS A: I don’t see that there is any other way for us to move forward without it.
THE JUDGE: Well, I think that was the right decision and I think that is extremely helpful for everybody, for all of you and perhaps most importantly of course for C. I am very grateful to you and I expect the applicants are as well. So what I will do is I will make the parental order… Then in terms of a child arrangements’ order, now that the parental order has been made, everybody agrees that it is… right for Ms A to have contact and under the Children Act you can make an application or I can treat an oral application as having been made and given the amount of information I have about all of you, I do not need you to go through the normal process of getting enquiries from Cafcass because obviously I already have that information from Mrs Chapman, so I would be content to make a child arrangements’ order and Ms Maxwell has said that the agreed way forward is the every six weeks– I appreciate there will be a little bit more detail to this but every six weeks for a day, holidays and Christmas and– so that is her position. So from your side, Ms A, is that agreed by you as the way forward?
MS A: It is, yes.
THE JUDGE: In that case, I had better go back to Mrs Chapman in case from a welfare point of view she has any concerns. Mrs Chapman, from a welfare point of view for C would you be happy to endorse that order?
MRS CHAPMAN: Yes, I am happy to endorse that order.
THE JUDGE: So in that case that order will then follow, so we have a parental order and there will then be a child arrangements’ order. I think then I hope very much that all of you can relax a little after what has been quite a difficult time and move forward. C is going to be one soon and I think it would be very nice to move forward knowing all the decisions have been made, so if I go back to Ms Maxwell; Ms Maxwell, is there anything else you want to add?
MS MAXWELL: Your Honour, no, thank you very much.
THE JUDGE: Okay. Ms A, is there anything else you want to add?
MS A: No, thank you.
THE JUDGE: Well, thank you very much, and, Mrs Chapman, is there anything else you want to add?
MRS CHAPMAN: No, I have got nothing more to add, thank you.
THE JUDGE: Well, thank you very much for your help and my thanks to everybody for their help because I know it can be quite stressful in a situation like this, so I am very grateful to everybody for having achieved the right way forward for C…
Okay, thank you all very much for attending. I know it has been difficult for everybody and I can see for Ms A in particular, so I will thank you all for attending and I will let you all go now. Thank you very much everybody.
MS A: Thank you, bye.
THE JUDGE: Bye.”

My feeling when reading this exchange is that the mother had not freely and unconditionally consented at the outset, and that by the end of hearing she was saying that she did unconditionally consent although it is hard to see that she genuinely meant it.

The biological mother argued at appeal that she had not unconditionally consented, and that the division that the Court made of making the Parental Order with ‘unconditional consent’ on the basis that moments later an uncontested Child Arrangements Order would be made did not vitiate that lack of consent.

The carers were arguing that the Court was entitled to separate out the two orders and have them run sequentially in “sealed deliberations” and that therefore the biological mother’s consent was unconditional. They further argued that if the Court of Appeal was not with them on that, that s54(6) should be read as though the words “Such consent not to be unreasonably withheld” were added.

(This is apparently something which is currently being actively considered by the Law Commission who are looking at surrogacy)

The Court of Appeal set out their decision:-

There are three questions to be answered in this case. The first is whether, on a straight reading of s.54(6), the Appellant gave free and unconditional consent to the making of the parental order. The second is whether, if that is not the case, the Convention requires the court to assume and exercise a power to dispense with consent, and thereby to preserve the parental order. The last question is what order this court should make in respect of the underlying application for a parental order if the answer to each of the above questions is ‘No’.
The requirement that a person has “freely, and with full understanding of what is involved, agreed unconditionally to the making of the order” means exactly what it says. Although it may be forensically convenient to separate out the individual elements, what is required is a consent that is free, informed and unconditional. If that is achieved, it is immaterial whether the consent is given gladly or reluctantly.
Where there is any doubt about consent, it will be a matter for the court to judge, giving consideration to all the circumstances. One relevant factor is likely to be the means by which consent has been expressed. Because of the profound consequences of the underlying choice, it is normal for there to be a degree of formality. This is reflected in the preference in FPR 13(11) for consent to be in writing, using Form 101A and with the parental order reporter as witness. Even then, consent can be withdrawn at any stage before the order is made. This degree of formality is not mandatory but its absence should put the court on its guard to ensure that the proffered consent is valid. In the present case, the disputed consent was given orally in the face of the court and via CVP. In that unusual situation, a sharp eye had to be kept on the possibility that the court process might of itself be exerting pressure to the extent that any stated consent was devalued.

Further, although the hearing was conducted with complete courtesy, there were a number of other objective features to put the judge on her guard. In the first place this was a remote hearing in a sensitive case, with the Appellant being alone and unrepresented. The inevitable stress on any litigant was then inadvertently exacerbated by the way in which the Appellant found herself out on a limb, with her position on consent being represented as the only obstacle to an overall solution: “if you do not consent, you will all be in this limbo”. Also, an unrepresented litigant who is addressed by a judge at some length may be influenced by feelings of deference. Again, I recall that the judge was motivated by her assessment of what was in the best interests of C, the Respondents and indeed the Applicant herself. That welfare assessment was very probably sound but it had nothing to do with the question of consent. Had the resulting arrangements been satisfactory to all concerned, the problems with consent would no doubt have faded from memory, but the fact that the outcome has been so disappointing so far tends to show that the order was not built on solid foundations.
I would accept as a matter of principle that it is possible to conceive of a parental order and a child arrangements order coexisting. None of the reported cases has had that outcome, but they may not be representative of all problematic surrogacies. Some unproblematic surrogacies do not lead to parental orders at all, and contact with a surrogate will sometimes take place without any thought of a child arrangements order, even where a parental order has been made. However, in cases where there is less trust, there must still be a narrow path available to parties who genuinely agree that dual orders are the solution. While the statute does not envisage such orders, it does not expressly exclude them and to that extent I would accept Mr Vine’s submission that it might be possible for this outcome to be achieved. What the statute does, however, unequivocally exclude, in order to protect the surrogate, is twin orders in circumstances where one order is the price for the other. That is what occurred in this case.
For these reasons, the answer to the first question is that the Appellant’s consent was not merely reluctant but neither free nor unconditional. It was given in reliance on the promise of a child arrangements order and the Appellant’s statement that she gave it unconditionally did not reflect the reality. Furthermore, the eventual expression of consent was given under unwitting but palpable pressure. The parental order should not have been made.
Coming to the second question, I unhesitatingly reject the submission that section 54(6) can be read in such a way as to confer a dispensing power upon the court. The right of a surrogate not to provide consent is a pillar of the legislation and the assumption by the court of such a power would go far beyond permissible judicial interpretation of the kind found in A v P and in Re X. It is beyond doubt that the proposed setting aside of the parental order would clearly fall within the scope of the private and family life aspects of Article 8: Mennesson at paras. 87 and 96. However, the rights of the Respondents and of C are not violated by the setting aside of the order for want of consent on the part of the Appellant. The Strasbourg court has recognised a considerable margin of appreciation in this area and the potential availability of adoption to secure C’s legal relationships is also relevant, even if that route would be sub-optimal: Valdis Fjölnisdóttir v Iceland, Application no.71552/17, 18 August 2021. I would take this view even if this court were to make its own Article 8 assessment at the present date. I therefore conclude that the Convention does not require the parental order, made without valid consent, to be left in place.
The final question is what order should be made in respect of the underlying parental order application. The choice is between dismissing it or remitting it. I would look favourably on remitting if a parental order could possibly result from the parties being given another opportunity to take stock. I have noted that the judge might have adjourned the hearing for that purpose, and Ms Bazley has accepted that this option was open to her. But that was in the middle of 2021 and we are now in early 2023. In the meantime, relationships between the parties have deteriorated further, as the ongoing Children Act proceedings show. Even with the benefit of their current representation, the parties have been unable to devise a solution of their own. The Appellant’s position is that she will not consent to a parental order.
In these circumstances, I am driven to conclude that to remit the parental order application would perpetuate the process that led to the making of the original order. I would therefore allow the appeal and dismiss the application for a parental order. That C should be brought up by the Respondents and have contact with the Appellant was intended by all. It remains agreed by all that C will continue to be brought up by the Respondents, but the appropriate legal mechanism for that, and the question of contact with the Appellant are matters that are beyond the scope of this appeal.

I’m very glad that the Court of Appeal did not decide to read words into the statute which are not there – we’ve seen in recent years dilution of the statutory principle about only reasonable expenses being paid in surrogacy and about the time limits for making the application. If the Law Commission makes recommendations for changes that are approved by Parliament then so be it, but I personally don’t care for the Court amending statute to solve hard cases.

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Stay with me ! Stay applications, some further guidance

Posted on January 5, 2023 by suesspiciousminds

A stay, for my non-lawyer readers, is where a Court makes a decision (say for example that the child should have contact with the father twice per week) and one party wants to appeal the order and asks the Court for an order that pending the appeal the Court’s decision should not take effect.

Up until today, the best guidance on the legal tests for stays and process had been the Mostyn J decision in NB v London Borough of Haringey 2011

https://www.bailii.org/ew/cases/EWHC/Fam/2011/3544.html

First, the court must take into account all the circumstances of the case. Second, a stay is the exception rather than the general rule. Third, the party seeking a stay should provide cogent evidence that the appeal will be stifled or rendered nugatory unless a stay is granted. Fourth, in exercising its discretion the court applies what is in effect a balance of harm test in which the likely prejudice to the successful party must be carefully considered. Fifth, the court should take into account the prospects of the appeal succeeding. Only where strong grounds of appeal or a strong likelihood of success is shown should a stay be considered.’

Mostyn J encountered a stay application again in this case, Re HH (A Child :Stay of Order pending appeal) 2022 and expands on that guidance

https://www.bailii.org/ew/cases/EWHC/Fam/2022/3369.html

In this case, the Court at first instance had reached a decision that a father should have unsupervised contact for one hour twice a week. The contact had been stopped for 2 years. The mother sought to appeal that order and sought a stay of the order about contact.

As Mostyn J points out, whereas in a money case the money can be paid and then paid back if the appeal succeeds in an appeal about resuming contact if the contact happens before the appeal can be heard, that can be difficult. If the contact is happening before the appeal takes place it could materially affect the outcome of the appeal or the benefit of it.

Mostyn J says that when the Court is considering the application for stay at the same time as permission to appeal, the NB principles, derived from a case called Wenden in the Hong Kong Courts (so Mostyn J calls them the Wenden principles) should apply.

He says that in a case where the Court is asked to determine a stay application BEFORE the permission to appeal application is resolved, it is not practicable to consider the last point – the prospects of the appeal succeeding – because that’s treading on the toes of the permission to appeal application.

He says further that in such circumstances, the Court should consider granting a stay UNTIL the permission to appeal application can be dealt with, if the appeal is not fanciful and the order taking place would irreversibly extinguish the purpose of the appeal (i.e as here where the issue was the resumption of contact between a child and a parent)

Where the issue is whether a parent should have direct contact to their child the refusal of an interim stay, resulting in such direct contact taking place, in effect decides the very subject matter of the appeal. In this case, whatever I may think about the reasonableness of the mother’s stance, and the likelihood of her being awarded PTA, it is an undeniable fact that without an interim stay pending determination of PTA, the viability of mother’s proposed appeal is pre-emptively extinguished.
Therefore, if that would be the consequence, the court should normally award such an interim stay. It should not be seen as being of the same character as a full stay of execution awarded at the same time as the grant of PTA. Such a full stay should only be awarded if the Wenden Engineering principles are satisfied. By contrast, the award of an interim stay pending determination of PTA should be seen more in the character of a suspension of the order under appeal, doing no more than holding the ring pending that determination. It should not be seen as establishing any precedent for, or any indication as to the outcome of, the full stay application.
I emphasise that the appeal court should only award an interim stay pending the decision on PTA where (a) the grounds of appeal are not fanciful and (b) implementation of the order pending the PTA decision would irreversibly extinguish the viability of the proposed appeal. If this latter criterion is not met, because, for example, conditions can be imposed to ensure that any implementation of the order in the meantime can be effectively reversed, then the appeal court should leave the question of a stay to the judge determining the PTA application.
Where such an interim stay is awarded the court should give directions to bring the PTA application before the court at the soonest opportunity. Further, I would suggest that in such circumstances the appeal court should allow the respondent to the appeal to make submissions in writing under FPR PD 30A para 4.22 as to whether PTA should be granted and/or a full stay of execution awarded.

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