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Adoption and immigration

I was very surprised to see that Mostyn J’s decision not to award an adoption order to an 18 year old when he felt that the only tangible benefit was British citizenship was appealed. I wrote about his decision here


and I had felt that he had got that absolutely spot on.

Nonetheless, the prospective adopter in that case did appeal, and the Court of Appeal judgment is here


FAS v Secretary of State for the Home Department and Bradford MBC 2015


I was even more suprised that the Court of Appeal decided that Mostyn J had been wrong in law.  You will see from the initial blog and judgment that Mostyn J had decided that the only benefit of making the adoption order for this person was to confer British citizenship on them, and that this was barred as a result of the House of Lords decision in Re B (a minor : Adoption Order :nationality) 1999


“The first is that the purpose of an adoption is, as section 12 of the Act says, to give parental responsibility for a child to the adopters. The court will therefore not make an adoption order when the adopters do not intend to exercise any parental responsibility but merely wish to assist the child to acquire a right of abode. This is what Cross J. in In re A. (An infant) [1963] 1 WLR 231, 236 called an “accommodation” adoption. The second proposition is that the court will rarely make an adoption order when it would confer no benefits upon the child during its childhood but give it a right of abode for the rest of its life. In such a case there are no welfare benefits during childhood to constitute the “first consideration.” The court is in effect being asked to use adoption to confer citizenship prospectively upon an adult. This is a power which Parliament has entrusted to the Home Secretary and the courts are reluctant to trespass upon the area of his authority.”


The appeal here was on the basis that as the 1999 decision of the House of Lords predated the 2002 Adoption and Children Act, AND that the Act moved the test from ‘the welfare of the child’ to ‘the welfare of the child throughout the child’s life’ that in effect Parliament HAD given the power to the Court to take impact of British citizenship into account.

The Secretary of State was an interested party to the proceedings, because obviously if the law is going to move to say that immigration status is a relevant consideration in making an adoption order that opens some doors that the Secretary of State might prefer remained closed.


Nonetheless, the Court of Appeal held that Mostyn J was wrong in law and that those doors ARE open


  1. I should explain why I consider that the judge has erred in his interpretation of section 1(2) of the 2002 Act. In my view, the natural meaning of the language used in section 1(2) requires regard to be had to the welfare interests of the child in question as they may be affected “throughout his life” – that is to say, not merely as they may be affected during his childhood, as was the test under section 6 of the 1976 Act. As a matter of language, there is no limitation as regards the nature of the child’s welfare interests which should be brought into account in this way, and none can be spelled out of the context. Given that it is readily possible to envisage things that might be done in relation to a child which may profoundly affect him for good or ill in the part of his life once he ceases to be a child (e.g. whether and how he is educated), it would be arbitrary to try to read down section 1(2) to limit its effect to purely emotional matters in the way that the judge sought to do. The wide ambit of the matters which may be relevant to assessing what promotes the child’s welfare contemplated by section 1(4), as indicated by its opening words (“… among others …”), also supports an interpretation which gives the words in section 1(2) their natural meaning.
  2. I do not think that section 1(4)(c) supports the judge’s narrow interpretation of the phrase “throughout his life” in section 1(2). If anything, it seems to me to point in the other direction. The phrase obviously bears its natural linguistic meaning in section 1(4)(c), meaning that the factor identified has to be brought into account by reference to the effects over the entirety of the child’s life. It would be very odd to give the same phrase a different, more restricted meaning when it is used in section 1(2). There is nothing in section 1(2) to suggest that the phrase only applies in relation to some (or only one), rather than all of the factors which might be found to be relevant to the welfare of a child.
  3. In my view, the reasoning of Lord Hoffmann in his speech in Re B (with which the other members of the appellate committee agreed) supports an interpretation of section 1(2) of the 2002 Act in accordance with the natural meaning of the words used in that provision. The case concerned an application by grandparents under section 6 of the 1976 Act to adopt their grandchild, T, who had only two years of minority remaining, to allow her to acquire British citizenship and avoid deportation, so that she could continue living with them in the UK and continue to attend school here: see p. 140B-D. The judge at first instance made an adoption order, even though the Home Office argued that this would be contrary to immigration policy, on the basis that he could not ignore these welfare benefits to T merely because they were dependent on the acquisition of a right of abode as a citizen: p. 140F-H. The order was set aside by the Court of Appeal on the grounds that in applying section 6 the court should ignore benefits which would result solely from a change in immigration status: pp. 140H-141C. The House of Lords held that this was contrary to the express terms of section 6 and restored the order made at first instance.
  4. Lord Hoffmann held that on the language used in section 6 the court could not ignore the considerable benefits which would have accrued to T during the remainder of her childhood:

    “Section 6 requires the judge to have regard to ‘all the circumstances’ and to treat the welfare of the child ‘throughout his childhood’ as the first consideration. I do not see how, consistently with this language, the court could simply have ignored the considerable benefits which would have accrued to T during the remainder of her childhood. That the order would enable her to enjoy these benefits was a fact which the court had to take into account. No doubt the views of the Home Office on immigration policy were also a circumstance which the court was entitled to take into account, although it is not easy to see what weight they could be given. Parliament has not provided, as I suppose it might have done, that the adoption of a non–British child should require the consent of the Home Secretary. On the contrary, it has provided that the making of an adoption order automatically takes the child out of the reach of the Home Secretary’s powers of immigration control. The decision whether to make such an order is entirely one for the judge in accordance with the provisions of s 6 . In cases in which it appears to the judge that adoption would confer real benefits upon the child during its childhood, it is very unlikely that general considerations of ‘maintaining an effective and consistent immigration policy’ could justify the refusal of an order. The two kinds of consideration are hardly commensurable so as to be capable of being weighed in the balance against each other” (p. 141C-F)

  5. The effect of this reasoning is that, in respect of the period in which the child’s interests were to be treated as a first consideration (i.e. “throughout his childhood”, according to the terms of section 6), the interests of the child (including material welfare benefits he would derive as a result of being granted British citizenship) would almost invariably have to be given priority as against the state’s interest in maintaining effective immigration controls. Lord Hoffmann contrasted the position in relation to benefits which would accrue after childhood (i.e. after the period in respect of which the child’s interests were to be treated as a first consideration according to section 6) at p. 142D-F, as follows:

    “I think it is wrong to exclude from consideration any circumstances which would follow from the adoption, whether they are matters which will occur during childhood or afterwards. This, as I have said, would be contrary to the terms of s. 6. Such benefits may include a right of abode or a possibility of succession. But benefits which will accrue only after the end of childhood are not welfare benefits during childhood to which first consideration must be given. And if a right of abode will be of benefit only when the child becomes an adult, that benefit will ordinarily have to give way to the public policy of not usurping the Home Secretary’s discretion. It is perhaps a curious feature of this case that if the Home Office had been willing to allow Ms B to remain in this country for the 2 years during which a residence order was in force, the case for an adoption, conferring a right of abode for life, would have been very much weaker. It would not have given Ms B any benefits during her childhood which she would not have been able to enjoy anyway.”

  6. As Lord Hoffmann said at p. 141H-142A, the approach to be adopted under section 6 where the benefits from conferral of citizenship would accrue after the childhood of the adopted person has ended was as follows:

    “… the court will rarely make an adoption order when it would confer no benefits upon the child during its childhood but give it a right of abode for the rest of its life. In such a case there are no welfare benefits during childhood to constitute the ‘first consideration’. The court is in effect being asked to use adoption to confer citizenship prospectively upon an adult. This is a power which Parliament has entrusted to the Home Secretary and the courts are reluctant to trespass upon the area of his authority.”

  7. Thus, in relation to benefits for the child which would only accrue in the period after that in which the child’s interests were to be treated as a first consideration, as a matter of interpretation of section 6 there was far greater scope for the state’s interest in maintaining effective immigration controls to be treated as outweighing those matters, and it would ordinarily do so.
  8. Lord Hoffmann’s reasoning in relation to both periods (i.e. benefits accruing during childhood, on the one hand, and benefits accruing after childhood, on the other) was tied to the language and structure of section 6, which gave paramountcy to the child’s interests in the first period but not in relation to the second. In relation to both periods, on the proper construction of section 6 in accordance with the ordinary meaning of the language used in it, Lord Hoffmann treated the practical benefits which would accrue from becoming a British citizen by operation of the 1981 Act as relevant matters to be brought into account in deciding whether to make an adoption order.
  9. On the present appeal Mr Greatorex, for the Secretary of State, submits that the change between section 6 of the 1976 Act and section 1(2) of the 2002 Act cannot be taken to indicate an intention on the part of Parliament to change the presumption in favour of giving greater weight to the state’s interest in maintaining immigration controls with respect to benefits accruing after childhood which had been identified in Re B in relation to section 6. I cannot accept this submission.
  10. Parliament has made a deliberate change in section 1(2) in specifying the period in relation to which the impacts (both positive and negative) of adoption for a child should be brought into account for the purpose of determining what is for the welfare of the child as being “throughout his life”, by contrast with the more limited period specified in section 6 of the 1976 Act (“throughout his childhood”). Apart from this change, the basic structure of section 1(2) remains the same as for section 6, namely that in relation to assessment by reference to the relevant period the child’s interests are treated as paramount or a first consideration and that all practical benefits and disbenefits for the child (including those which would accrue as a result of any automatic conferral of citizenship under section 1(5) of the 1981 Act) are treated as relevant matters. Like section 6 of the 1976 Act, section 1(2) of the 2002 Act cannot be construed as containing any artificial limitation on what types of benefit are capable of counting as a relevant matter when considering whether an adoption order should be made. Therefore, in my view, the points made by Lord Hoffmann in Re B by reference to the then relevant period under section 6 for bringing benefits into account (during childhood) at p. 141C-F, set out above, apply with similar effect in relation to the new relevant period under section 1(2) (throughout the child’s life).
  11. The result of this is that if, after taking account of the practical benefits of adoption for a child throughout his life, it can be seen that it best promotes the child’s welfare that he be adopted by a British citizen so as automatically to acquire British citizenship under section 1(5) of the 1981 Act, the court should ordinarily make the adoption order which is sought. Just as for the first of the periods considered by Lord Hoffmann in the context of applying section 6 of the 1976 Act in Re B, the state’s interest in maintaining effective immigration controls will have very little significance. It will not be appropriate for a court to refuse to make the order as some sort of indirect means of reinforcing immigration controls.
  12. I can readily see that the Secretary of State for the Home Department might be concerned at this result. But if she wishes the courts to have the ability to give greater weight to considerations of immigration policy in the context of deciding whether an adoption order should be made, she will need to persuade Parliament to change section 1 of the 2002 Act to allow that to happen.



So, having decided that the legal basis for Mostyn J to refuse to make the adoption order was wrong in law, the Court of Appeal surely then make the adoption order?  Well, no, because it turns out that as an 18 year old, simply making the adoption order would NOT confer British citizenship on the young man. And as that was the only tangible benefit identified by Mostyn J, there would be no benefit in making the order, and one can’t make such an order without being satisfied that it is better than making no order.

29…the judge erred in making the assumption he did that if he made an adoption order the effect of section 1(5) of the 1981 Act would be that MW would automatically acquire British citizenship. When the matter was before the judge, MW was already aged 18 and hence was no longer a “minor” as defined for the purposes of the 1981 Act. Therefore, if an adoption order had been made it would not have had the effect of automatically conferring British citizenship on MW. Once this is appreciated, the only benefit in terms of the welfare of MW associated with adoption identified by the judge drops out of the picture. There is no good reason to warrant the making of an adoption order in this case, and it is on this basis – different from the reasoning of the judge – that the appeal must be dismissed.

  1. Mr Rudd, for FAS, sought to argue that even though MW would not automatically become a British citizen if an adoption order were made, nonetheless it would greatly assist him in making an application for leave to remain in reliance on his rights to respect for his private and family life under Article 8 of the European Convention on Human Rights and the Human Rights Act 1998 if the court had recognised his family connection with FAS by making the adoption order, and that this should be treated as a factor indicating that the making of such an order would promote his welfare. If MW obtained discretionary leave to remain, and such leave were sustained over some years, he might become a British citizen by that route.
  2. In my judgment this argument is unsustainable. Such family and private life as MW has established in the UK by living with FAS was formed at a time when it was known that he had only a very limited right to remain in the UK as a visitor for a few weeks, and hence was precarious. Any adoption order would be made after MW became an unlawful over-stayer and was known to be such. On the ordinary principles applicable under Article 8, in a case affected by precariousness of this kind it is only in exceptional circumstances that a right to remain could be established on the basis of private or family life (see e.g. R (Agyarko) v Secretary of State for the Home Department [2015] EWCA Civ 440 at [28]), and there are none here. MW has no prospect of being granted leave to remain on the basis of Article 8 in exercise of the Secretary of State’s discretionary immigration powers, so this factor cannot justify the making of an adoption order in relation to MW.



The Court of Appeal thus achieving the unusual outcome of sending every single person in the Court room away being deeply unhappy about what was decided. Absolutely nobody would have been happy or even content with this.

NRA and Others 2015 (the Charles J DoLS case)

The NRA is often in the news, generally after some terrible incident in an American school and usually positing the opinion that if only everyone on the scene had had a firearm rather than just the sociopathic person shooting everyone nothing bad would have happened.  This is a different NRA. So if you have come here looking for the National Rifle Association (hi Piers, bye Piers) then you’re in the wrong place.


This is Charles J’s decision in a group of linked cases designed to test whether in a case where a vulnerable person’s liberty is being deprived as a result of their care package, that person HAS to be represented. The President, said no, we could distinguish between cases where the deprivation is contentious (when they should be represented) and where it is not contentious (where a streamlined fast-track system could be in place where there might not even be a hearing)


This came before Charles J as a result of the District Judge who had first got the linked cases realising that this was a real can open, worms everywhere scenario   , described by me here


This is chief is a pragmatic engineering solution to the huge mountain of such Deprivation of Liberty cases that are going to come before the Courts as a result of the Supreme Court in Cheshire West broadening out the criteria of what consituted a deprivation of the person’s liberty.

Thus, if you don’t do Court of Protection work, you need read no further, and that may be a relief to you, because the thing that most lawyers know about Charles J is this gem from the Court of Appeal in Jones v Jones 2011 :-


The appeal judge quoted from an article in the magazine Family Law by Ashley Murray, a Liverpool barrister. This began:

“There are certain challenges each of us should attempt in our lifetime and for most these involve a particular jump, a mountain climb, etc. Akin to these in the legal world would be reading from first to last a judgment of Mr Justice Charles.”

Lord Justice Wilson commented: “Mr Murray’s introductory sentences were witty and brave. In respect at any rate of the judgment in the present case, they were also, I am sorry to say, apposite.”


Of course, I have no views on this whatsoever, and merely report the judicial decision of the Court of Appeal in that regard.  I may, however, have prepared a small packed lunch, put on a warm coat and ironed my Welsh flag before I sat down to tackle the judgment in NRA and Others 2015.


Charlton Heston of the NRA is asked by Dr Zaius to re-read a Charles J judgment

Charlton Heston of the NRA is asked by Dr Zaius to re-read a Charles J judgment



My mission-statement (sorry I just shuddered) when I began this blog is “I read it, so you don’t have to”.  I have been putting off this particular task for quite some time.

As I outlined, the President had arrived at a two track process – where P (the vulnerable person) would only be represented in a deprivation of liberty case where the deprivation or the plan was contentious.  However, when the Official Solicitor in the case appealed that decision, the Court of Appeal had two things to say – firstly that it hadn’t even been a decision so there was nothing to appeal, but secondly that P should ALWAYS be represented.


These cases were then the first raft of non-contentious cases that were run as test cases to work out what the hell was going on. It had become really apparent that the Official Solicitors office, who normally represent P would be utterly overwhelmed by demand and that the practical implications of following the Court of Appeal’s guidance (since it is obiter and not ratio) would be to grind the whole system to a halt, and more importantly make it impossible for P to be represented in a contentious case.

So there were a few questions

Should P always be represented?  Could P be represented by a litigation friend instead of the Official Solicitor? Would that litigation friend be able to speak in Court if they didn’t have rights of audience?

Re NRA and Others 2015

If I tell you that the judgment contains 269 paragraphs, and that a full 16 of them come under the sub-heading of “Flaws and gaps in the reasoning of the Court of Appeal”  you get much of the flavour of the whole thing without having to read it all.  A state of affairs for which I envy you.


It is a curious thing, and a dreadful position for the Judge to be placed in. To make this decision right in law, and respect the well-established principle of Winterwerp v Netherlands  1980 is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded “the fundamental guarantees of procedure applied in matters of deprivation of liberty” …    and the Court of Appeal’s steer which though NOT binding could honestly not have been clearer, the Judge would have to break the Court of Protection system. Barely any case would be heard and injustice done to thousands of cases. The alternative was to take the pragmatic engineering solution of  “This can’t work if we insist on P always being represented, so we’re not going to do that”.   However, it has to be legally dressed up so that it at least looks as though it can withstand an appeal.


Charles J makes the following conclusions, which he thankfully summarises at the end


A brief summary of my conclusions is that:

(1) P does not have to be a party to all applications for welfare orders sought to authorise, and which when they are made will authorise, a deprivation of P’s liberty caused by the implementation of the care package on which the welfare order is based.

(2) In two of the test cases before me I have made orders that reflect that conclusion and my conclusion that the procedural safeguards required by Article 5 are (and are best) provided in those cases by appointing a parent of P as P’s Rule 3A representative. As such, that parent as a continuation of the dedicated and devoted support given by P’s family to P and directed to promoting P’s best interests, in a balanced way, can best provide (a) the court with the information it requires about the care package and P, and (b) P’s participation in the proceedings. Also, that parent can and in my view will monitor the implementation of the care plan and so initiate any challenge to it or review of it that the parent considers should be made in P’s best interests.

(3) I do not have a test case before me in which (a) P has not been joined as a party and the Official Solicitor has not agreed to act as P’s litigation friend, and (b) the appointment of a family member or friend as P’s Rule 3A representative without joining P as a party is not an available option. Such a test case or cases should be listed for hearing.

(4) In contrast to the Court of Appeal in Re X and subject to further argument in such a test case or cases, I consider that the way in which the Court of Protection can at present best obtain further information and P’s participation in such cases is for it to exercise its investigatory jurisdiction to obtain information through obtaining s. 49 reports or through the issue of a witness summonses. This keeps the matter under the control of the court rather than invoking the necessity of appointing a litigation friend with the problems and delays that history tells us this entails and will entail and I have concluded is, or shortly will be, not fit for purpose.

(5) I do not for a moment suggest that absent further resources being provided there will not be problems and delays in taking the course referred to in paragraph (4). Also, and importantly, I recognise that it would be focused on Article 5(1) and would not provide for monitoring on the ground until it is repeated from time to time for that purpose. But, the appointment of a litigation friend will also not provide that monitoring.

(6) In such cases the argument advanced by the Secretary of State before me that a Rule 3A representative identified by the local authority be appointed shows that if this was a practically available option it would replicate the input that I have decided can be provided by an appropriate family member or friend and so satisfy the procedural safeguards required by Article 5 and common law fairness in non-controversial cases without joining P as a party.

(7) That replication is an obvious solution that will provide the necessary safeguards more efficiently and at less expense than either

i. the making of orders for s. 49 reports and the issuing of witness summonses perhaps coupled with more frequent reviews, or

ii. joining P as a party.

(8) So I urge the Secretary of State and local authorities to consider urgently, and in any event before a test case or cases of this type are before the court, how this solution can be provided on the ground.


He also ruled definitively that a litigation friend can, if appointed by the Court, be given the power to conduct litigation


Gregory v Turner [2003] 1 WLR 1149, at paragraphs 50 to 58, it is common ground that if and when the court appoints such a litigation friend:

i) it can also give him or her a right of audience and the right to conduct litigation in relation to those proceedings (see Paragraphs 1(2)(b) and 2(1)(b) of Schedule 3 to the 2007 Act),ii) it can remove those rights, and further and alternatively

iii) it can end the appointment of the litigation friend (see COP Rules 144 and 140).


[He described the arguments to the contrary made by some of the parties as ‘arid’.  I can’t think of anything to say about that which isn’t churlish, so let’s move on. ]

And that conducting litigation can include anything that P could do themselves as a litigant in person if only they had capacity – so definitively, if a Court appoints a litigation friend and grants them the right to conduct litigation, they can do everything – they can deal with correspondence, draft a statement and address the Court. They can be given rights of audience, even though they would not be someone who has them.


I have mixed feelings about this decision – it was an impossible position for the Judge to be in. To make a fair decision would have broken the Court of Protection and caused far more harm to all of the vulnerable people who require its services. On the other hand, I just agree with Winterwerp and feel that if someone is being locked up even if it is ‘for their own good’ they should have someone speaking on their behalf and making such points as ought to be made.

The only thing I would say is that by setting out a huge section entitled “Flaws and gaps in the Court of Appeal’s reasoning”,  we now have a pretty solid indicator that if a decision is made relying on this judgment and someone intends to appeal it, the Court of Appeal are going to be rather interested in getting to grips with it. That really just places even more uncertainty into an area of the law which has been nothing but uncertainty ever since the President first encountered the words “Cheshire West”

The Law Commission reforms of deprivation of liberty can’t come soon enough.



Should Mr Heston be represented here? Does the net satisfy the Cheshire West 'acid test'?

Should Mr Heston be represented here? Does the net satisfy the Cheshire West ‘acid test’?

No winners here only losers


The Court of Appeal dealt with an intractable contact case in Re Q  a child 2015


In this case, which involved a boy aged 8, and private law contact proceedings that have now been going on since May 2008, some seven years and almost his entire life. The boy lives with his mother and the father had not been able to have meaningful contact since the parents separated in February 2008.

The trial judge, His Honour Judge Brasse, reached the following conclusions

In his judgment, Judge Brasse set out that:

      1. “the conclusion that the court has come to on the basis of having heard and read a huge amount of evidence over those years is this:
  • the father is well disposed towards his son and has never done him any deliberate harm;
  • the allegations against the father are manifestly false;
  • the recent allegations made by the child against the father are so incoherent that it is difficult to formulate any single consistent charge against him;
  • the evidence in my judgment is overwhelmingly in support of the view that this child has been influenced by the mother’s hostility towards the father. She has demonstrated by the presentation of her case over and over again that she is only willing to hear from this child what supports her view, and ignores those parts of his presentation which does not.”


We don’t know what those allegations are, but can probably guess at their approximate nature. The important thing is that after seven years of litigation the wealth of evidence before the Court was such that it was clear that false allegations had been made against dad in order to thwart his contact and that father would be perfectly safe to have contact.


Sadly, as a result of this behaviour by the mother, the Judge was also of the view that ordering contact to take place now would also harm the child. He set out, rather mournfully, the possible options before the Court


  1. He set out events since his previous judgment on 9 January 2014. He identified the four options before him:

    i) To order the mother again to allow contact: He rejected this, accepting KD’s advice that it would, for reasons he identified, be harmful to Q.ii) To order a section 37 report and engage the help of the local authority: He agreed with KD’s view that, for reasons he set out, this would be highly likely to cause Q harm. Moreover, as he commented, to go down this route would be both undesirable and unnecessary; undesirable because it would prolong the proceedings and unnecessary because he could make an order today – a specific issue order – which would achieve exactly the same thing.

    iii) To bring the proceedings to an end without further order: He described this as the counsel of despair.

    iv) To enlist the assistance of the Violet Melchett Centre.

  2. In relation to option (iii), Judge Brasse said this:

    “The third possibility is the counsel of despair – that is that notwithstanding the harm which I have found as a fact to have been caused to this child by the mother’s influence, and the harm that he would suffer from not being able to develop a relationship with his father, which I have also found, the course of least harm would be to bring these proceedings to an end without further order. That would leave Q living with his mother, who provides well for him materially and educationally and, apart from supporting the relationship with his father, provides a loving atmosphere for the child too.

    [Counsel] submits on behalf of the father that that would leave Q with an entirely false view of his father as some kind of monster; that would do huge harm to Q in the long term, because Q as he grew older would reflect that part of his biological inheritance comes from a person who is that horrible. He would have no sound or realistic understanding of his identity because he would be cut off from his father and his father’s family. With all that I agree. But, once again, at this juncture to force a child against his wishes into contact sessions would cause just an aggravation of the harm which was manifest in the reports the court received.”

  3. In relation to option (iv), Judge Brasse said:

    “The fourth possibility which was foreshadowed in the guardian’s position statement but developed in the course of argument was that as the child has been seriously emotionally harmed (I would attach the expression, “significantly emotionally harmed”), as a result of the care he has received – that not being what it would be reasonable to expect a parent to give him – some affirmative action should be taken to address the harm and, if possible, reverse it. As, in the guardian’s view, removal of the child from the mother’s care is not a reasonable option, if this child’s welfare is to be protected and safeguarded, then at the very least the court should ensure he receives psychological intervention.

    And there, it was submitted, appeared a glimmer of hope. The Violet Melchett Centre is a well-established NHS resource staffed by very experienced people who have, over the decades, helped children who have been harmed as a result of parental conflict. This child, I have found as a fact, has been significantly harmed as a result of parental conflict. The Centre can offer help of an effective kind if the parents themselves are willing to participate. Here, [the mother] is. She has said so in terms to this court. Further, she has agreed that she would not place any impediment in the way of [the father] to participate in that therapeutic process if he wished; and, thirdly, it would be possible to ensure that the therapists were provided only with, as I put it, “neutral” information …

    The object of the sessions at the Violet Melchett Centre would be, as I have said, to repair the emotional harm; possibly if the therapist thought this was helpful, to promote communication between the parents of a helpful kind; and possibly to revive the seriously damaged relationship between the child and his father.

    Violet Melchett have informed the guardian they would not start work until these proceedings have come to an end, because the continuation of the proceedings cause an additional stress for the child which is out of their control.”

  4. The judge’s overall conclusion was summarised in these two paragraphs:

    “I find the child, as I have explained, has suffered significant emotional harm which continues to go unaddressed while he is living in an atmosphere which is so hostile to his father, and I find that there is clearly a case that this child needs therapeutic intervention as he is unlikely to recover from the emotional harm unless such steps are taken. I am persuaded that he needs a cessation of these proceedings for that therapeutic intervention to be effective.

    … So my conclusion is that I shall make a specific issue order, and I shall order that both parents co-operate in the referral of this child to the Violet Melchett Centre for an assessment of his emotional and psychological wellbeing, and for such treatment as the staff at the Violet Melchett Centre recommend.”



Somewhat surprisingly, the mother had expressed a willingness to participate. The difficulty that the Judge found himself in, having dealt with options three and four in the way he had, was to be told that the staff at the Violet Melchett Centre had a clear view that in order to meaningfully work with the family, the court proceedings had to come to an end.  That of course meant that the proceedings, which had lasted seven years and where mum had tried to thwart dad having contact or a contact order would end with no order about future contact.

Understandably, dad appealed this decision, feeling that it flew in the face of fairness and the principles that the Court ought to not give up on contact without properly exhausting all of the options.


  1. Inevitably in these circumstances the debate before us, putting it in legal terms, has focused on the intersection between two sets of principles.
  2. The first are the principles which I sought to distil in Re C (A Child) (Suspension of Contact) [2011] EWCA Civ 521, [2011] 2 FLR 912, para 47, as follows:

    “• Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child.

    • Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only if it will be detrimental to the child’s welfare.

    There is a positive obligation on the State, and therefore on the judge, to take measures to maintain and to reconstitute the relationship between parent and child, in short, to maintain or restore contact. The judge has a positive duty to attempt to promote contact. The judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt.

    • The court should take both a medium-term and long-term view and not accord excessive weight to what appear likely to be short-term or transient problems.

    • The key question, which requires ‘stricter scrutiny’, is whether the judge has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case.

    • All that said, at the end of the day the welfare of the child is paramount; ‘the child’s interest must have precedence over any other consideration.'”

  3. The most recent in-depth analysis of the case-law is to be found in the judgment of McFarlane LJ in Re W (Direct Contact) [2012] EWCA Civ 999, [2013] 1 FLR 494, to which we were referred. He drew attention to the decision of the Strasbourg court in Gluhakovic v Croatia (Application number 21188/09) [2011] 2 FLR 294, para 57, to the effect that obligation upon authorities, including the court, is not absolute and, whilst authorities must do their utmost to facilitate the cooperation and understanding of all concerned, any obligation to apply coercion in this area must be limited since the interests, as well as the rights and freedoms, of all concerned must be taken into account, and more particularly so must the best interests of the child.
  4. The other principles relate to case management. We were taken to my judgment in Re C (Family Proceedings: Case Management) [2012] EWCA Civ 1489, [2013] 1 FLR 1089, paras 14-15:

    “14 … These … are family proceedings, where it is fundamental that the judge has an essentially inquisitorial role, his duty being to further the welfare of the children which is, by statute, his paramount consideration. It has long been recognised – and authority need not be quoted for this proposition – that for this reason a judge exercising the family jurisdiction has a much broader discretion than he would in the civil jurisdiction to determine the way in which an application of the kind being made by the father should be pursued. In an appropriate case he can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter. He may determine that the matter is one to be dealt with on the basis of written evidence and oral submissions without the need for oral evidence. He may, as His Honour Judge Cliffe did in the present case, decide to hear the evidence of the applicant and then take stock of where the matter stands at the end of the evidence.

    15 The judge in such a situation will always be concerned to ask himself: is there some solid reason in the interests of the children why I should embark upon, or, having embarked upon, why I should continue exploring the matters which one or other of the parents seeks to raise. If there is or may be solid advantage in the children in doing so, then the inquiry will proceed, albeit it may be on the basis of submissions rather than oral evidence. But if the judge is satisfied that no advantage to the children is going to be obtained by continuing the investigation further, then it is perfectly within his case management powers and the proper exercises of his discretion so to decide and to determine that the proceedings should go no further.”

  5. We were also taken to the observations of Wall LJ in Re H (Contact: Domestic Violence) [2005] EWCA Civ 1404, [2006] 1 FLR 943, para 106:

    “Of course, an experienced judge can cut corners and make substantive orders on short appointments. But if a judge is to take that course, he must be very sure of his ground, and demonstrate clearly that he has taken all relevant considerations into account.”

  6. The father’s case, as formulated by counsel then acting for him in the skeleton argument to which I have referred, can be summarised as follows:

    i) There was procedural irregularity: The essential argument is that Judge Brasse was wrong summarily to determine the application and to bring the proceedings to an end at a one-hour review hearing without hearing oral evidence from the parties, allowing cross-examination of the guardian and allowing the father to cross-examine the mother as to her alleged commitment to therapy. What he should have done, it is said, was list the matter for a further contested hearing on oral evidence. It is submitted that Judge Brasse went outside the permissible as contemplated in Re C (Family Proceedings: Case Management) and fell into the trap identified in Re H (Contact: Domestic Violence). Amongst a number of supporting arguments, it is pointed out that there had been no evidence from the parties, written or oral, since 2012. Stress is laid on the assertion that the potential consequence for Q of not making a child arrangements order is the loss of his relationship with his father.ii) Judge Brasse was wrong in bringing the proceedings to an end without making a child arrangements order: Given his own findings, he should have directed a section 37 report. He should have pursued the strategy he had set out as recently as January 2014 and again approved in June 2014. He failed to explain why he was departing so radically from a strategy so recently approved. In support of the argument that his decision was simply wrong, stress is understandably laid on the judge’s own findings, on the one hand damning of the mother, on the other hand, acknowledging the facts that contact presents no risk to Q, has almost always been positive for him and would be damaging for Q if terminated.

    iii) In the circumstances, and having regard to all these matters, the process has not been compatible with the father’s Article 6 and Article 8 rights.

  7. The father supplemented these legal arguments with his own powerful submissions that Q was growing up, as Judge Brasse recognised, in a household where he was being fed a completely distorted view of his father; that he (the father) had, unlike the mother, done everything asked of him; that Q was being denied a relationship not merely with his father but with his wider paternal family, and was thereby being denied that part of his heritage; and that the mother was selfishly motivated to monopolise her son. He said that he had never asked for Q to be removed from his mothers care. He submitted that the judge ought to have treated the mother as a vexatious litigant. The time had now come when the judge should have been prepared to consider a change of residence, at least until such time as the mother was prepared to facilitate contact. He asked us to remit the matter for a final hearing, with evidence


The Court of Appeal, however, felt that His Honour Judge Brasse had done the right thing in this case.


  1. In my judgment, Judge Brasse, faced with an almost impossible situation, took a course which was not merely open to him but which was, in reality, probably the only course that stood the slightest chance of achieving what was so pressingly needed – the resumption of Q’s relationship with his father.
  2. The judge was acutely conscious of the desperate position in which Q and his parents now find themselves. He was, rightly, unsparing in his criticism of the mother and unflinching in his analysis of the harm she was causing Q. But he was faced with what he realised was the reality, that the strategy he had hitherto adopted had not worked, in circumstances where, moreover, there was no reason to think that this strategy would work in future. He was realistic in his appraisal, securely founded in the materials before him, that any further attempt to enforce contact by force of law was almost bound to fail and, at the same time, be harmful to Q. He was, in my judgment, entirely justified in concluding that a further hearing, with or without a section 37 report, was most unlikely either to tell him anything he did not already know or to bring about any change in parental attitudes. He was sensible in thinking that therapy might achieve what all previous interventions had failed to achieve and justified in deciding that this was the best way forward. It was, after all, something that had been recommended in the past by Dr CL. He was plainly entitled to accept the advice of the Violet Mechett Clinic, as commended to him by the guardian, and repeated by Dr JP more recently, that therapy required a cessation of the proceedings.
  3. In my judgment, it is quite impossible for us to interfere with Judge Brasse’s decision. He was entitled to decide as he did and for the reasons he gave. Indeed, I would go further: I suspect that if I had been where he was I would have come to precisely the same conclusion.
  4. In my judgment, in deciding to proceed as he did, Judge Brasse was acting well within the latitude afforded him by the principles explained in Re C (Family Proceedings: Case Management) and he did not offend the principles set out in Re C (A Child) (Suspension of Contact). His decision to proceed as he did was not premature. He was not abdicating his responsibility to do everything in his power to attempt to promote contact. He was not abandoning the ongoing judicial duty to reconstitute the relationship between Q and his father. He was engaging with an, albeit non-judicial, method which he hoped might prove effective where merely judicial methods had failed. The very terms of his order, as I have set it out, show that he contemplated a future role for the court. I reject the complaint that there has been a breach of either Article 6 or Article 8.
  5. It was for these reasons that I agreed with my Lords that the appeal had to be dismissed.



In short that all legal solutions to the case which had a chance of working had been tried and had not worked, and the Judge was right to have looked outside of the legal system for a solution.

The Court of Appeal then delivered a very powerful message to the mother – let us hope that it did not fall upon deaf ears


I would not want the mother to think she has won. She has not. There are no winners here, only losers. Q is far and away the greatest loser – and that, in overwhelming measure, is because of his mother’s behaviour. I urge her again, as I urged her during the hearing, to reflect on Judge Brasse’s findings. They are an indictment of her parental failings hitherto. She, and Q, now stand at the cross-roads. It is vital, absolutely vital, that she participates, with Q and with the father, in the therapy which is at present their only hope for a happy future. I repeat what I said during the hearing. Sooner or later, and probably sooner than she would hope, Q will discover the truth – the truth about why he is not seeing his father, the truth about the harm his mother has done to him, the truth about his father, the truth that his father is not the monster he has been brought up to believe he is, the truth about, and the dreadful details of, the litigation. When he discovers that truth, what is his mother going to be able to say to him? How is she going to begin to justify her behaviour? She needs to think very carefully about how she is going to handle that day, not if but when it comes. Whatever she may think about the father, does she really want to imperil her future relationship with her son? Run the risk of being disowned by him? Run the risk of never seeing her own grandchildren? I urge her to think, long and hard, and to act before it is too late.



Funding of intermediaries

[See last blog]


An email came to me suggesting that it could be argued that rather than the Legal Aid Agency paying for the intermediary, it could come from HMCTS. I.e the Court pays.

Thinking of it in that way, it occurred to me that the President had floated in Q v Q the idea that HMCTS paying for a lawyer for an unrepresented person was analogous to HMCTS paying for interpreters or intermediaries. But I knew that the final conclusion in Q v Q was appealed when HH J Bellamy made such an order in Re K and H. So, does perhaps the Court of Appeal decision in Re K and H 2015 give us an answer on this?

I think that it does.


  1. As we have seen, in reaching his conclusion, the judge was influenced by the fact that HMCTS meets the cost of interpreters, intermediaries and the preparation of court bundles under the Financial Resources Regulations. He said that these are “aspects” of “representation” within the meaning of section 42 of LASPO. Section 42 defines “representation” as meaning “representation for the purposes of proceedings” and includes “the advice and assistance which is usually given by a representative in the steps preliminary or incidental to proceedings”. He considered that by analogy, HMCTS has the power to meet the cost of legal representation.


  1. I do not accept that interpreters or intermediaries are “representatives” within the meaning of section 42, still less that they provide the services of a legal representative. In In the Matter of D (a child) (No 2) [2015] EWFC 2, Sir James Munby said at para 17:


“The cost of funding an intermediary in court properly falls on Her Majesty’s Courts and Tribunals Service because, as the LAA has correctly pointed out, an intermediary is not a form of ‘representation’ but a mechanism to enable the litigant to communicate effectively with the court, and thus analogous to translation, so should therefore be funded by the court: see Re X, para 37 and C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin), [2010] 1 All ER 735, paras 26-27.”


  1. I agree with this. Nor do I see how the fact that HMCTS funds the preparation of court bundles from time to time sheds any light on whether the court has power to require HMCTS to fund the cost of legal representation.



For me, that seems to settle it. The LAA should not be asked to fund an intermediary, but instead it should fall on HMCTS. Re D is binding on most Courts as a High Court authority, and given that the Court of Appeal looked at it in Re K and H and agreed, it binds just about everyone.    The Court of Appeal specifically AGREED that the cost of funding an intermediary in Court properly falls on HMCTS.


So having identified a problem, I’ve accidentally solved it.

What I don’t yet know is whether the Court has a duty to provide the intermediary once a recommendation is made or whether the Court could press on without one. (remembering that whilst an expert recommends something, it is ultimately a matter for the Judge whether to accept that recommendation).

I don’t think that a Judge could say “I agree with Dr Nolan that an intermediary is required, but I am not going to order one because of X”  but that a Judge COULD say “Dr Nolan says that an intermediary is required – I have decided that it is not required because of X”.     It always makes me a bit uncomfortable the notion that a Judge (who is ultimately employed by HMCTS and to some extent accountable to them) has to decide whether HMCTS should incur expenditure.



Concurrent affairs


The Court of Appeal had to look at what happens or what should happen, when there is a conflict between the Local Authority plan for a child and what the foster carers (who had signed up as concurrent carers, or ‘foster to adopt’ under the new language of the statute) thought the plan should be.


Re T (a child: Early Permanence Placement) 2015

  1. The facts can be stated quite shortly. T was born on 20 November 2014. T’s parents signed an agreement in accordance with section 20 of the Children Act 1989 the next day, 21 November 2014, and T was placed the same day with a married couple I shall refer to as Mr and Mrs X.
  2. Mr and Mrs X had been approved as adopters by the local authority on 14 November 2014. Shortly before T’s birth, on 17 November 2014, they were invited by the local authority, and agreed, to care for T, on his birth, as foster carers with a view to adopting him if adoption was required: what is known as an early permanence placement. T, as I have said, was placed with them on 21 November 2014. The local authority commenced care proceedings, with a plan for adoption, on 3 December 2014. Mr and Mrs X signed an early permanency placement agreement the same day. On 18 December 2014 an interim care order was made. It remains in place. T remains with Mr and Mrs X.
  3. On 29 January 2015 T’s paternity was established by DNA testing. At an adjourned case management hearing the next day, 30 January 2015, the father indicated that he did not wish to be assessed as a carer for T, but he put his parents forward for assessment. An initial viability assessment of the paternal grandparents was completed on 13 February 2015. It was positive. The full kinship assessment of the paternal grandparents was completed on 1 May 2015. Again, it was positive. Following a professionals’ meeting on 8 May 2015, the local authority told Mr and Mrs X that it had abandoned its plan for adoption in favour of a placement with the paternal grandparents under a special guardianship order. This plan is supported by both the mother and the father, who accept that neither of them is able to care for T. The position of T’s guardian is that the court does not at present have before it the evidence upon which to make a proper evaluation of what the guardian says are the two realistic options: a family placement with the paternal grandparents or adoption by Mr and Mrs X.
  4. On 20 May 2015 Mr and Mrs X issued an application for leave to apply for an adoption order (see sections 42(4) and 44(4) of the Adoption and Children Act 2002). The application came before Judge Troy on 22 May 2015. By then the care proceedings had been on foot for a little over 24 weeks. She made two orders. In one she gave Mr and Mrs X leave to apply for an adoption order. In the other she joined them as parties to the care proceedings. In accordance with directions she gave on that occasion, the matter came back before Judge Troy for directions on 1 June 2015. The paternal grandparents indicated their wish to apply for a special guardianship order (their formal application followed on 19 June 2015). Judge Troy joined them as parties to the care proceedings and consolidated the care proceedings and the adoption proceedings. She extended the time limit for the proceedings (see section 32(5) of the 1989 Act) to 34 weeks.
  5. On 22 May 2015 Mr and Mrs X gave the local authority notice in accordance with sections 44(2) and 44(3) of the 2002 Act.


There’s quite a lot in there, so I’ll break it down.

The Children and Families Act 2014 tells Local Authorities that they must actively consider looking for a “foster to adopt” foster placement when they are placing a child. That’s a set of foster carers who are also approved as adopters, with a view to if things pan out that the child can’t be placed within the family, those carers will go on to adopt the child. The idea is that it reduces uncertainty and delay for the child and cuts down the number of moves.

The Local Authority did that in this case (and did nothing wrong in doing so – that’s what the Act tells them to do). The foster carers entered into the arrangement thinking that they would probably go on to adopt the child.

The child’s grandparents put themselves forward as carers, the Local Authority assessed them and considered that they would be able to care for the child.

The Local Authority told the foster carers that the plan was no longer adoption, but was placement within the extended family.

The foster carers disagreed and put in their own private application to adopt.

The Judge gave the foster carers the leave of the Court to make that application.

Then the Local Authority, the father and the grandparents appealed.



The appeal arguments of the LA, father and grandparents were these:-


  1. The grounds of appeal and the parties’ submissions
  2. As I have said, the father, the paternal grandparents and the local authority made common cause. In large measure their submissions were very much to the same effect and made the same points. I shall take them together.
  3. Their submissions can be summarised as follows:i) Judge Troy was wrong to give Mr and Mrs X leave to apply for an adoption order. Their application was premature and should not have been considered until such time as the court had determined that T’s future welfare required his adoption rather than a family placement. That process has not been in any way altered by the implementation of the statutory early permanence placement scheme. Mr Tyler adds that, if the appeal against Mr and Mrs X’s joinder is successful, their application for an adoption order will be left hanging in the air. So, he submits, on that ground also the appeal on this point should succeed.

    ii) Furthermore, Mr and Mrs X had failed to demonstrate that they had a real prospect of success in relation to an application for an adoption order, and that T’s welfare required their being given leave to apply for, such an order.

    iii) Judge Troy was wrong to join Mr and Ms X as parties to the care proceedings and failed to consider the procedural ramifications and consequences of doing so.

    iv) Judge Troy failed to have sufficient regard or attach appropriate weight to the authorities about the primacy of family placements.

    v) Judge Troy failed to have sufficient regard or attach appropriate weight to the fact that Mr and Mrs X were temporary foster carers and that in the early permanency placement agreement dated 3 December 2014 they had expressly agreed that their adoption of T would be contingent on his not being rehabilitated to his family.

    vi) On the contrary Judge Troy gave excessive weight to the facts (a) that Mr and Mrs X were approved adopters and that the placement had been made by way of an early permanence placement, (b) that they had cared for T for 6 months and (c) that there was evidence of attachment between T and them.

    As the argument developed, it became apparent that there was a degree of overlap in these submissions.

  4. By way of elaboration, a number of points were made which it is convenient to take together.
  5. Mr Tyler submitted that it is wrong in principle to allow state-sanctioned carers to acquire the right to set themselves up against a family member as a potential permanent carer for a child simply by virtue of an unexceptional period of time caring for an unexceptional child in an unexceptional case. Particularly is this so, he says, where, as here, the aspiration of the foster carers is the non-consensual adoption of a child outside his birth family. As the father put it in his grounds of appeal, Mr and Mrs X are the product of the care process and should not be part of it. According to Mr Tyler, there is simply no place in the statutory process under Part IV of the 1989 Act for foster carers who are not otherwise entitled to participate by virtue of family status, statutory responsibilities, or relevant social work or other expertise.
  6. Mr Donnelly submitted that the analysis of adoption as an option in care proceedings is limited to consideration of adoption in principle and does not involve an assessment of the individual merits of particular proposed adopters. Least of all, he submitted, should care proceedings become, as would be the consequence of Judge Troy’s order, an arena in which prospective adopters should be enabled to probe alleged deficits in a family placement and compare it unfavourably with what they could offer. It is the children’s guardian whose task it is to scrutinise the local authority’s plan and, if appropriate, criticise it and invite the court to reject it. To like effect Mr Tyler submitted that the proper people to test the local authority’s assertions, assessments and care plans, in order to assist the process of quasi-inquisitorial judicial critical analysis in the care proceedings, are the parents and the child(ren), the latter through the children’s guardian. Miss Anning made much the same point when she submitted that the very idea of a competition between the birth family and prospective adopters at the stage of deciding whether a child should be placed for adoption is to shift the focus away from a true analysis of what is fundamentally in the child’s best interests in favour of the competing views of the adults. And, she suggested, it ran the risk of a simple comparison as to which placement would be better for the child, the very thing that all the jurisprudence demonstrates is not the right question (see, for example, Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332, referred to below).
  7. Accordingly, it was submitted, Mr and Mrs X’s joinder to the care proceedings serves no useful purpose; it does not provide a means for the court to consider an option that it otherwise would not. Moreover, there is, they say, no need for Mr and Mrs X to be parties to the care proceedings to demonstrate that they are suitable prospective adopters for T, for they have already been positively assessed. If and to the extent that the court needs to consider adoption as an alternative to a family placement all it needs to know is that T has the best prospects of being adopted given Mr and Mrs X’s wish to adopt him.
  8. As Mr Donnelly put it, the fact that this was an early permanence placement did not give Mr and Mrs X an elevated status, nor did that (or any of the other matters) create a ‘status quo’ requiring the kind of balancing of ‘status quo’ and ‘family’ contemplated in Re M’P-P (Children) [2015] EWCA Civ 584 (see below). In reality, as Mr Tyler put it, the asserted ‘status quo’ and attachment in the present case do not differ in any significant way from what exists in a large proportion of similar care cases where a child has been successfully fostered for a short, interim, period.
  9. Mr Tyler conjured up the spectre of social engineering. He suggested that parents in care proceedings will be very much less likely to agree to the potential benefits of a fostering for adoption placement. He pointed to the inevitability of delay given the requirements of sections 42(4) and 44(4) of the 2002 Act



Summarising these very briefly – it is the task of the Court to decide what orders should be made, and Mr and Mrs X (the carwers and would-be adopters) come into the equation IF AND ONLY IF the Court is satisfied that nothing other than adoption would do. To bring Mr and Mrs X into the equation before that point potentially muddies the waters and gets into a social engineering situation where the Court is deciding which family has more to offer the child, Mr and Mrs X or the grandparents.


The arguments against the appeal were made by the adopters and the Children’s Guardian. (I pause here to note that the collective brainpower in the Court room must have been making the air crackle)


  1. Essentially, Miss Scriven and Miss Fottrell submitted that Judge Troy was right to decide as she did and for the reasons she gave. There are, they said, two realistic options before the court and Judge Troy was right in her approach and in recognising that the court, in the light of the statutory framework and the authorities, had to evaluate both the realistic options and to assess each in the context of the other. How, Miss Scriven asked rhetorically, was the court to do this, as she put it, balancing the competing arguments for and against those two options, unless Mr and Mrs X were able to participate in the care proceedings and make representations?
  2. Miss Scriven submitted that the local authority’s approach was far too rigid and absolute, and inappropriately minimising of Mr and Mrs X’s role. As the guardian put it, whatever the strength of the arguments in favour of a family placement, it cannot be said that Mr and Mrs X’s application has no prospect of success. After all, as Miss Scriven pointed out, Mrs X is the only mother T has ever known. What is required is for each case to be looked at in a case-specific way. Reliance was placed on what McFarlane LJ had said in Re M’P-P (Children) [2015] EWCA Civ 584, paras 46-50 (see below). Reliance was placed on what was said to be the reality that T and Mr and Mrs X have, as a result of Mr and Mrs X caring for T, an established family life together. Mrs X, it is said, is at the centre of T’s life. Miss Fottrell said that Mr and Mrs X are de facto parents and if T is to be removed from them they need to be heard, particularly if what is being proposed is T’s placement, albeit within his family, with people with whom he has no relationship. T’s welfare requires this reality to be carefully examined, and this requires the participation of Mr and Mrs X, precisely because it is not an argument that will be supported either by the local authority or by the birth family, all of whom will be arguing vigorously against it. As Miss Fottrell put it, it is difficult to see how Mr and Mrs X’s case could be properly heard if they were not joined to the care proceedings.
  3. Furthermore, and relying upon Singh v Entry Clearance Officer, New Delhi [2004] EWCA Civ 1075, [2005] QB 608, [2005] 1 FLR 308, it was said that there exists between Mr and Mrs X and T ‘family life’ within the meaning of Article 8, which in turn, it is said, entitles them to a fair hearing in accordance with Article 6: see Soderback v Sweden (1998) 29 EHRR 95.


Again, in a summary – as Mr and Mrs X are the only people the child has ever lived with and they have an article 8 right to family life, their application for adoption is an application they can legitimately make, and a legitimate option before the Court. If they are robbed of the chance to make such an application, how can that argument be properly made before the Court?  And if they don’t get the chance to make their application, their family life is being disrupted without them having a chance to contribute to the arguments.   [Also that as Re B-S requires the Court to consider all of the realistic options, how can the Court fairly proceed without one of them being presented]


Boiling it all down, it seems to be this central dilemma


“Do foster to adopters have a stake within care proceedings and can make their arguments just as any other interested party, or ought they stay out of it and just wait for the Court to decide whether this is an adoption case at all?”



The historical approach of the Court to joining foster carers to the proceedings:-


  1. From the very earliest days of the 1989 Act (which, it will be remembered, came into force in October 1991), the court has set its face against the joinder in care proceedings of foster-parents or prospective adopters. Two decisions of this court explain why.
  2. In Re G (Minors) (Interim Care Order) [1993] 2 FLR 839, the judge had made an order joining foster-parents as parties to care proceedings. This court declined to interfere with his order, describing the case as being “exceptional … with many unusual features.” However, Waite LJ added this (page 846):

    “In ordinary circumstances I would not expect the court to regard it as appropriate to join foster-parents as parties to proceedings of this kind. To do so would in most cases run counter to the clear policy of the Act reflected in ss 9(3) and 10(3). The assistance afforded by foster-parents to the effective functioning of any system of child care is invaluable and should never be discouraged. Theirs is not a role, nevertheless, which would normally make it necessary for them to be joined formally as parties to proceedings in which the future upbringing of the children in their temporary care is in issue. There will generally be ample means for making their views known to the court, either directly as witnesses or indirectly through the inquiries of the guardian ad litem, without the necessity of adding them formally as parties.”

  3. Some fifteen years later, this court said much the same thing again. In Re A; Coventry County Council v CC and A [2007] EWCA Civ 1383, [2008] 1 FLR 959, a foster mother sought leave to apply for an adoption order in accordance with section 42(6) of the 2002 Act after the court, in that case the family proceedings court, had made a placement order. So the forensic context was very different from the one with which we are concerned. However, the judgment of Wilson LJ, as he then was, is of illuminating importance because he had to confront the argument of Mr Stephen Cobb QC, as he then was, appearing on behalf of the local authority. Wilson LJ summarised Mr Cobb’s argument as follows (para 35):

    “In the end Mr Cobb has been constrained somewhat to retreat from the proposition that the court which hears care and placement applications is the appropriate forum for resolution of any issue about the candidacy for adoption of, for example, a foster mother. He still maintains, however, that it is an appropriate forum. Challenged to furnish a reported example of resolution of such an issue in such proceedings, he cites the decision of Hedley J in Re R (Care: Plan for Adoption: Best Interest) [2006] 1 FLR 483.”

  4. Wilson LJ, with whom both Ward LJ and Moore-Bick LJ agreed, was having none of this. He said (para 24):

    “The application for a placement order required the magistrates to consider the principle whether the best interests of A required that she be adopted but not to determine the identity of the optimum adoptive home for her.”

  5. He elaborated this (para 34):

    “I do not agree with the judge that the proper forum for consideration of the identity of the optimum adopter or adopters for a child is the court which makes the care and placement orders. For, in terms of the adoption of the child and in contradistinction to the child’s committal into care, the placement order is not the court’s last word. Its last word is articulated when the adoption order is made; and any court which makes a placement order knows that any issue in relation to the identity of the optimum adopter or adopters of the child can be ventilated in an application for an adoption order, which is precisely what this foster mother aspires to make. In my view the magistrates were rightly unattracted to the suggestion, albeit that it was later endorsed by His Honour Judge Bellamy, that the foster mother might in some way join in the proceedings before them. As a judge of the family justice system for almost 15 years, I have never encountered a case in which an aspiring adopter participated in the hearing of proceedings relating to whether a child should be placed for adoption, or should be freed for adoption under the old law set out in s 18 of the Adoption Act 1976. For the law provides a forum in which issues as to the identity of the optimum adopter can later be ventilated. In my view, therefore, the requirement for close scrutiny of the care plan should in principle not extend to an address of any issue as to the identity of the optimum adopter or adopters for the child.”

    My own experience mirrors that of Wilson LJ.

  6. Referring to Re R (Care: Plan for Adoption: Best Interests) [2006] 1 FLR 483, Wilson LJ said (para 35):

    “I respectfully agree with Hedley J’s observations. But they are of no assistance to Mr Cobb. To say that the credentials of proposed adopters may exceptionally need to be considered in care proceedings in order that the court should better be able to reach the central decision whether the child should be removed from his family and adopted is not to say that care or indeed placement proceedings are an appropriate forum for resolution of an issue between a proposed adopter and the local authority as to the merits of her candidacy.”





In short, foster carers or prospective adopters should not be involved in care proceedings as parties unless there are some exceptional circumstances.

So, in this case, were there any?


  1. In my judgment, there is no reason to depart from this long-established approach and, indeed, every reason to follow it. There is nothing in Article 8 or in the Strasbourg jurisprudence which calls for any different approach. There is nothing in the recent case-law on adoption (In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035, M v Blackburn with Darwen Borough Council and others [2014] EWCA Civ 1479, [2015] 1 WLR 2441 and In re R (A Child) (Adoption: Judicial Approach) [2014] EWCA Civ 1625, [2015] 1 WLR 3273) which justifies, let alone requires, any change in approach. Nor, in particular, is there anything in the status or function of an early permanence placement foster carer which either justifies or requires any change in approach.
  2. I agree, therefore, with the essential thrust of the submissions by Mr Donnelly, Mr Tyler and Miss Anning as I have summarised them in paragraphs 28-29 above. The care judge is concerned at most with consideration of adoption in principle, not with evaluating the merits of particular proposed adopters. There is no need for the prospective adopters to be joined, for it is the children’s guardian (who will be aware of Mr and Mrs X’s stance and can, if necessary, address their suitability) who has the task, indeed is under the duty, of subjecting the local authority’s care plan to rigorous scrutiny and, where, appropriate, criticism. So, I agree, Mr and Mrs X’s joinder to the care proceedings is inappropriate. Moreover, as was pointed out, and I agree, there is no need for Mr and Mrs X to be parties to the care proceedings to demonstrate that they are suitable prospective adopters for T, for they have already been positively assessed.
  3. The truth is, as Mr Tyler submitted, that, putting on one side Mr and Mrs X’s role as early permanence placement foster carers, and, I emphasise, without in any way wishing to belittle or diminish all that they have done for T, this is a case where there has been an unexceptional period of time caring for an unexceptional child in an unexceptional case. This, in my judgment, is not an exceptional case justifying any departure from the general approach. For the reality is, as Mr Tyler correctly put it, that the ‘status quo’ and attachment on which Miss Scriven and Miss Fottrell placed such emphasis do not differ significantly from what is found in the many similar care cases where a child has been successfully fostered for a short period. Moreover, and to repeat, there is, in my judgment, nothing in the status or function of an early permanence placement foster carer which either justifies or requires any change in the hitherto conventional and long-established approach.
  4. To the extent I have indicated, I therefore agree with the thrust of Mr Tyler’s submissions.
  5. Moreover, there is, as Miss Anning pointed out, a very real risk that if, in a case such as this, the forensic process is allowed to become in effect a dispute between the prospective adopters and the birth family, the court will be diverted into an illegitimate inquiry as to which placement will be better for the child. That, it cannot be emphasised too much, is not the question before the court. I repeat, because the point is so important, what the Strasbourg court said in Y v United Kingdom:

    “family ties may only be severed in very exceptional circumstances … It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”

    Indeed, there are passages in Judge Troy’s judgment – for example, where she refers to a “comparative analysis of these two options”, without at the same time spelling out that adoption is appropriate only as ‘a last resort’ and if ‘nothing else will do’ – which do make me wonder whether she may not in fact have fallen into precisely that error here.

  6. There is another significant matter which, in my judgment, points in the same direction. The effect of sections 44(2) and (3) of the 2002 Act is to impose a period of three months’ delay in a case such as this. This is an appropriate aspect of the statutory scheme in relation to private law adoptions. But it would sit most uncomfortably if, as suggested in the present case, the statutory scheme under the 2002 Act is to be run in tandem with the quite separate statutory scheme in relation to care proceedings under the 1999 Act, required, by the recently amended section 32(1)(a)(ii) of the 1989 Act, to be concluded within a total period of only 26 weeks.
  7. Before us, Miss Scriven and Miss Fottrell relied, as had Judge Troy, on the recent case-law emphasising that the court must address and analyse all the realistic options. We were taken through the cases (In re B, In re B-S, M v Blackburn and In re R), but with all respect to Judge Troy they are not in point and do not justify the course she took.
  8. What those cases are authority for is the proper approach in cases where (see In re B-S, para 33) the court is being asked by a local authority to approve a care plan for adoption or being asked to make a non-consensual placement order or adoption order. It was in this context that, as we made clear in In re B-S, para 34, “The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option.” M v Blackburn was a challenge to the making of a non-consensual placement order, and it was to that forensic contest that Ryder LJ was directing his observations (see, for example, para 32, where he said “A court making a placement order decision must conduct a five part exercise.”). The same observation applies to In re R. But the case before us is not such a case. The local authority is not seeking either an adoption order or a placement order, nor is it seeking approval of a care plan for adoption.
  9. It would turn the In re B-S learning on its head to assert that, in a case where the local authority is not seeking any order which brings In re B-S into play, the requirement to consider every realistic option justifies, let alone requires, the joinder of a party to argue for the adoption for which the local authority itself is not applying. In my judgment, the In re B-S learning applies where the local authority is inviting the court either to approve a care plan for adoption or to make a non-consensual placement order or adoption order. It does not apply where, as here, the local authority is seeking none of these things.
  10. Accordingly, in my judgment, Mr and Mrs X ought not to have been joined as parties to the care proceedings, and the father’s appeal must be allowed.
  11. I turn to the local authority’s challenge to the order giving Mr and Mrs X leave to apply for an adoption order.
  12. In my judgment, the application was premature, as was Judge Troy’s decision. There are two reasons for this. First, this was an application which properly fell to be considered after the conclusion of the care proceedings and once the court had concluded, if it did, that T’s welfare required his adoption. This is the approach which, in my judgment, is generally applicable, and nothing in the statutory early permanence placement scheme justifies any different approach.
  13. The other reason is graphically illustrated by the forensic difficulty in which Judge Troy found herself, as she described in three passages in her judgment which I have already quoted in context but which bear repetition:

    “Mr and Mrs X have only very limited information about the care proceedings in respect of T in general or about the paternal grandparents in particular.”

    “The local authority has not sought to place before me any information about the paternal grandparents. I have no information about what they may be able to offer to T, about the benefits or any detriments for T in placing him in the care of his paternal grandparents.”

    “The position taken by local authority … means … that I must determine this application without being in a position to consider the relative merits of the two proposed placements for T.”

  14. None of this, in my judgment, is any matter for criticism of the local authority, let alone of Mr and Mrs X. It simply reflects the forensic reality given the stage the care proceedings had reached – as Judge Troy noted, the children’s guardian had not yet filed a report or even reached a concluded view –, a forensic reality which simply goes to demonstrate that the task which Judge Troy attempted to embark upon was premature. Moreover, her lack of knowledge, shared it may be noted by Mr and Mrs X, meant that, try as she might, Judge Troy did not have the materials which she needed to have if she was properly to determine their application in accordance with sections 42(4) and 44(4) of the 2002 Act.
  15. Accordingly, in my judgment, Mr and Mrs X ought not to have been given leave to apply for an adoption order, and the local authority’s appeal must be allowed.


There might come a case where the circumstances are sufficiently exceptional to allow a foster carer to make these applications, but it is rather hard to think of one.  I don’t think, tracking it through, that the Court of Appeal actually determined whether the foster carers had acquired any article 8 rights or whether as a result they had article 6 rights to a fair hearing, but the thrust of the case is that there were not the sort of exceptional circumstances that would have warranted granting their applications for leave to be joined as a party and to make their application for a private adoption.


As the Court of Appeal say at the end of the case :-


  1. Before parting from this case there is one final matter I need to refer to. These proceedings have inevitably imposed an enormous strain on Mr and Mrs X. Anxiety and anguish was etched on their faces as they sat before us. The outcome will come as a terrible blow. They have suggested that the local authority was unduly dismissive in November 2014 of the risk that they would not be able to adopt T and, after the paternal grandparents had emerged as contenders for T’s care, unduly dismissive of the possibility that the paternal grandparents would receive the positive assessment which, in the event, they did.
  2. We are in no position to evaluate those concerns which do not, in any event, ultimately bear upon the issues which we have to decide. Without, I emphasise, expressing any view as to what was actually going on, I merely note what I would hope is obvious: that in every case of an early permanence placement there must, from the outset and at every stage thereafter, be complete frankness coupled with a robust appraisal of the realities.

Care proceedings can be retrospectively validated


Readers might remember the recent case where the President looked at a set of care proceedings where it had not been known at the time that the mother lacked capacity, and the outcome was that the orders were effectively overturned and the proceedings re-wound to the beginning.


[Actually, if you remember it, it is because of the bad pun in the title….   ]



Here, the Court of Appeal were faced with a very similar issue – the mother in care proceedings conducted them  as though she had capacity and her lawyers fought hard on her behalf, but it turns out that perhaps she didn’t have capacity – at the very least there were two conflicting reports and the Court had not expressly resolved the issue.   She then appealed on that basis, arguing that the Care Order and Placement Order should be overturned and the case re-heard.


In this one, though, the Court of Appeal ruled that even though the original proceedings had been flawed, it would not have made any difference to the eventual outcome if she had been represented through the Official Solicitor rather than instructing her solicitor directly, and so the Court of Appeal could retrospectively validate the proceedings and orders.


Not sure that I agree.   (I agree that the Court of Appeal’s analysis that they HAVE the power is right. Whether it was right to use it, I’m not so sure of. Of the two approaches, I think the one before the President is more in keeping with article 6 and a right to a fair trial. I think that instructing a solicitor involves rather more than just saying “I want to fight” and that the protections for vulnerable persons or Protected Parties are fundamental, and where they’ve been lost even due to honest mistake, that’s a fatal flaw in the process, not something that can be patched up after the event)


Re D (Children) 2015


There were two issues :-


  1. Had the original Court process been flawed because it had proceeded on the basis that mother had capacity when she in fact didn’t?
  2. If so, did those flaws amount to an irresistable basis for an appeal, or can the Court retrospectively validate the orders if that seems the right outcome?


The mother had been represented through the Official Solicitor in previous care proceedings, so the starting point in these ones was that an updating report on her capacity was sought. However, no doubt to avoid delay and ensure that there wasn’t drift past the 26 week timetable, the expert saw the mother within the first six weeks of giving birth. This is important, as it is no doubt happening in other cases.

The cognitive assessment therefore came with a significant health warning, although it did say that she lacked capacity


“The immediate post natal period (under six weeks) tends to be a somewhat volatile period in terms of health and mood. Cognitive tests undertaken during this period are likely to reflect mood variations and difficulties with concentration due to hormonal changes…. In this assessment, therefore I have drawn on the results of SD’s August 2012 assessment together with a brief corroborative assessment conducted on 4 .11.13”


That report from Dr Morgan also gave a further health warning, that when one repeats the tests in a short period of time, the results can be skewed.

Those representing the mother sought a further expert opinion, from a Dr Flatman. The Court of Appeal were criticial that the Part 25 procedures on expert assessments were not followed and as a result, mistakes were made.

In any event, Dr Flatman examined the mother and concluded that she DID have capacity to conduct litigation.


Here’s the error


 At the hearing before the District Judge on 20 January 2014 the District Judge was simply told that:

“there has been a cognitive assessment further filed to say that she does have capacity to give instructions to her legal representatives”.

Dr Morgan’s conflicting report was not brought to the attention of the judge, neither was the fact that Mr Flatman had failed to apply the proper test for assessing capacity. As a consequence no consideration was given as to how to resolve the conflict, whether by additional questions, an experts meeting or by hearing short oral evidence to resolve the issue. Ms Weaver was simply discharged as litigation friend.

41. When the mother came before the judge for the final hearing Ms Weaver attended as the mother’s IMCA and the case proceeded without further consideration as to the mother’s capacity.


There were two competing reports and the Court needed to resolve which opinion was correct (bearing in mind the starting point of the Mental Capacity Act is to presume capacity unless there is evidence to the contrary)

44. All those who are regularly involved in care proceedings are aware that such a situation is all too common and it is plain to see why issues of capacity are critical to those affected. The starting point for the court is not only that a party has capacity, but that every effort must be made to help a party without capacity to regain it. Only in this way which accords with the statutory principles found in MCA 2005, can a parent feels that his or her case has been presented in accordance with his or her wishes, no matter how unrealistic or unachievable those wishes may be when considered against the yardstick of the welfare of her child in question. On the other hand the MCA 2005 is designed to ensure that those vulnerable adults, who have not got the capacity to conduct litigation on their own behalf, are properly identified and provided with appropriate support and a litigation friend in order to ensure that they not prejudiced within the proceedings as a consequence of their disability.

45. Process is not all and should never, particularly when one is concerned with a child’s future, be slavishly adhered to at the expense of achieving the right welfare outcome for a child without delay. Having said that, I am satisfied that the informal course which was adopted in the present case went far beyond a pragmatic and practical approach to case management and amounted to serious procedural irregularity.


The answer to that first question then was, yes, the original process had been flawed.

The analysis of whether the Court has the power to retrospectively validate the flawed process is set out very carefully from paragraphs 46-58, and if you are interested in the nuts and bolts of that, then it is all set out.

In a nutshell, it is this

47. FPR 2010 r.15.3 qualifies the general rule that a protected party may only conduct proceedings by a litigation friend. In particular FPR 2010, r.15.3(3) provides:

“(3) Any step taken before a protected friend has a litigation friend has no effect unless the court orders otherwise.”


So if the Court orders otherwise, then the Court can proceed even though a person ought to have been treated as a protected party and could only conduct proceedings through a litigation friend.   [Of course, as the Court at first instance DIDN’T do that, since they wrongly decided that she DID have capacity and neglected to take into account that there were conflicting reports, the Court at the time DIDN’T  “order otherwise” under r 15.3]




Bailey v Warren [2006] EWCA Civ 51. Hallett LJ said:

“[95] Within CPR r.21.3 (4) there are no restrictions whatsoever on the court’s discretion to validate steps taken in proceedings before a litigation friend is appointed. A court can regularise the position retrospectively provided, as Kennedy L.J. observed in [31] of Masterman-Lister “everyone has acted in good faith and there has been no manifest disadvantage to the party subsequently found to have been a patient at the time”. He could not envisage any court refusing to regularise the position because “to do otherwise would be unjust and contrary to the over-riding objective ….

[96] It is for the judge to consider all the facts of the case before him, therefore, and where as here, there is no suggestion of bad faith, decide whether or not the compromise is manifestly disadvantageous to the patient”


And that was the line that the Court of Appeal took.




55. In the present case it is recognised that the outcome of the case would have been the same regardless of whether the mother had litigation capacity. There was therefore no forensic disadvantage to the mother. Further, thanks to the dedication of Mrs Weaver, there was in reality no difference in the nature and quality of the representation the mother received. Mrs Weaver’s title within the proceedings changed from IMCA to Litigation friend and back to IMCA depending on the current court order, but the manner in which she carried out her role remained the same. It is apparent from the attendance notes that Mrs Weaver, in whatever guise, was not about to agree to the orders sought by the local authority being made; she felt strongly that the mother’s best interests could only be served by the applications for care and placement orders being opposed, I am entirely satisfied that not only would the outcome of the trial have been the same had the mother been found to lack capacity, but that the case would have been conducted in exactly the same way on her behalf.

56. There is no question but that all involved have acted with good faith. In dissecting the progress of this case, as has been necessary in order to consider the important issues before the court, I do not lose sight of day to day life in busy family courts with Counsel and Judges over stretched in every direction. This case does however perhaps provide a cautionary tale and a reminder that issues of capacity are of fundamental importance. The rules providing for the identification of a person, who lacks capacity, reflect society’s proper understanding of the impact on both parent and child of the making of an order which will separate them permanently. It is therefore essential that the evidence which informs the issue of capacity complies with the test found in the MCA 2005 and that any conflict of evidence is brought to the attention of the court and resolved prior to the case progressing further. It is in order to avoid this course causing delay that the PLO anticipates issues of capacity being raised and dealt with in the early stages of the proceedings.

57. SSD is now 20 months old and has been in her adoptive placement for over half her life. Her future needs urgently to be secured. I am satisfied that notwithstanding the procedural failings which led to this court being unable to conclude with any certainty whether the mother was or was not a protected party at the time of the trial, she was not in the end adversely affected and no practical difference was made to the hearing or outcome as a consequence. In those circumstances it is open to this court to validate the proceedings retrospectively and in my judgment that should and will be done.


appeal – no contact, section 91(14) and judicial conciliation


Re T (A child) (Suspension of Contact) (Section 91(14) 2015 has some peculiar quirks, and one point which is probably important. It is a Court of Appeal decision, written by Cobb J.


When I give you this little extract about the father

We have read the e-mail from the director of Contact Centre A (dated 29 May 2014) to the child’s solicitor which describes the conversations thus:

“… [the father] has obsessively / repeatedly called our organisation in the last couple of weeks. On each occasion he was extremely abusive, consistently making racist remarks, intimidating and threatening staff …. It is evident that centre staff are scared by the experience of dealing with [the father] and further dealings or contact arrangements at [the contact centre] are likely to pose significant risks to both his child and the centre staff. For the above reasons, [the contact centre] is not in a position to facilitate supervised contact sessions between [the father] and his daughter”.


You might be somewhat surprised that, doing this appeal in person, he bowls four balls of appeal  (well, he actually put in 19 in his grounds, but the Court of Appeal kindly found him his best four) and three of them hit middle and off and get the result. One is considered wide, but that’s a strike rate to be proud of.   [Taking three wickets out of 19 balls is still pretty decent]


The litigation history here is dreadful


8. The multiple court hearings, and judgments and orders which have flowed from them, reflect an extraordinarily high degree of conflict in the parental separation. By the time the proceedings were listed before HHJ Hayward Smith QC on 12 December 2011, he expressed a concern that the case was “in danger of spiralling out of control”, a fear which has in our view regrettably all too obviously come to pass. Not only have the parents been in relentless conflict with each other, but the father has also raised repeated and serious allegations of professional misconduct against E’s court-appointed Guardian, against counsel instructed in the case at various times, and against some of the judges. Family related litigation was at one time unacceptably being conducted simultaneously in three family court centres in different parts of the country, and even when co-ordinated in one location, there has been a regrettable lack of judicial continuity (even though it had been explicitly acknowledged by many of the judges involved to have been “essential” to maintain firm and consistent management of the case).

  1. In our own review of the background history we recognised that there was a risk, by which in our view this experienced Judge allowed herself to be distracted, that the truly dreadful chronology of litigation, and the behaviours of the adults towards each other and the professionals, would divert attention from, and ultimately eclipse, the essential issue, namely E’s relationship with both her parents



Here are the four grounds of appeal, as polished up by Cobb J


i) Did judicially-assisted conciliation between the parties in respect of child arrangements for E (specifically E’s living arrangements and contact) at a hearing on 13 May 2014, disqualify the Judge from conducting a subsequent contested hearing on 3 July 2014?

ii) Did the Judge err in making substantive orders on 3 July 2014 (including a section 91(14) order restricting any application under section 8 CA 1989):

a) In the absence of the father?

b) On the basis of factual findings made without forensic testing of the documentary material, of some of which the father had no knowledge?


c) Having indicated to the parties that she would not conduct any hearing in relation to residence issues?

iii) In ordering the indefinite suspension of contact, did the Judge pay proper regard to section 1(1) CA 1989 and the statutory list of welfare factors (section 1(3) ibid.), and to the Article 8 rights of the father and the child, all of which were engaged in such a decision?

iv) Was the order under section 91(14) CA 1989 appropriate in principle, and/or proportionate?


We shall take these in turn

i) Did judicially-assisted conciliation between the parties in respect of child arrangements for E (specifically E’s living arrangements and contact) at a hearing on 13 May 2014, disqualify the Judge from conducting a subsequent contested hearing on 3 July 2014?


This arose because at a hearing where the issue was intended to be about whether the child could or could not go to a family wedding, but  father was advancing a case of a change of residence for the child (which was an argument with no prospect of success) the Judge moved into conciliation mode with a view to trying to broker an agreement.  This is an accepted model now, but what hasn’t been previously determined was whether a Judge who undertakes that conciliation approach (of trying to move the parties towards an agreement) is able to then make decisions in the case where agreement is not reached.

  1. The father’s application in relation to the wedding celebration was heard by HHJ Hughes QC on 13 May 2014; she refused the application. At the hearing, the Judge, entirely appropriately in our judgment, took an opportunity to conduct some in-court conciliation between the parties in an effort to break the deadlock on residence and contact. At that hearing, the following exchange took place between the Judge and the father (as recorded by the father, but which we do not believe to be challenged):

    Father: “Your Honour, can I ask that this is heard….? If you are going to hear this as a conciliation attempt then you cannot hear the hearing”

    Judge: “That is absolutely fine with me. I will not hear the hearing. I am trying to deal with this now.”

    At the conclusion of the 3 July 2014 hearing in delivering judgment (para [2]), the Judge characterised this exchange thus:

    “During the hearing the father accused (sic.) me of attempting to conciliate and suggested that I should therefore recuse myself”.

    The description of the manner in which the father challenged the Judge (an ‘accusation’) may reveal a little of the father’s tone of lay advocacy not revealed by a transcript.

  2. The father does not currently challenge the Judge’s assessment of the prospects of his case on residence, or her stance in advising him of them. She later described her conciliation attempt thus:

    “I suggested to him that an application for residence of [E] was actually not going to be very successful because he had not seen [E] for ten months, and he accepted that at the time.” (see transcript of the hearing on 3 July 2014).

    His account is similar:

    “It was agreed by all parties before HHJ Hughes on 13 May that the hearing regarding residence should be adjourned with liberty to the father to restore if and when he believed it appropriate to [E]’s interests … I accept that there are no realistic prospects of a Court allowing [a change of residence] at the present when there is no contact taking place. I accept that [E]’s residence in the immediate future is likely to be with her mother” (see father’s letter to the Court 2 July 2014).


This Judge did, however later go on to make an order that the father should have no contact with his child at all, and make a section 91(14) order that he be barred from making any other applications without leave of the Court.  Grounds 1 and 2 of the appeal therefore raise the questions  (1) COULD the Judge do this and (2) SHOULD the Judge have done this?


The Court of Appeal ruled that the Judge COULD conduct a conciliation style hearing AND then go on to conduct a traditional hearing resolving a dispute.

  1. We wish to emphasise that the facilitation of in-court conciliation at a FHDRA (or indeed at any other hearing in a private law children case) does not of itself disqualify judges from continuing involvement with the case, particularly as information shared at such a hearing is expressly not regarded as privileged (PD12B FPR 2010 para.14.9). Were it otherwise, the “objective” of judicial continuity from the FHDRA (where, as indicated above, conciliation may have been attempted in accordance with the rules) to the making of a final order (see PD12B FPR 2010 para.10) would be defeated. The current arrangement should therefore be distinguished from:

    i) Old-style conciliation appointments, which operated prior to the implementation of the ‘Private Law Programme’ in 2004, the predecessor to the CAP (see Practice Direction [1982] 3 FLR 448; Practice Direction: Conciliation – children: [1992] 1 FLR 228: i.e. “If the conciliation proves unsuccessful the district judge will give directions (including timetabling) with a view to the early hearing and disposal of the application. In such cases that district judge and court welfare officer will not be further involved in that application”.);ii) Non-court dispute resolution (by way of mediation / conciliation) conducted by professionals outside of the court setting: see Re D (Minors) (Conciliation: Privilege [1993] 1 FLR 932, Farm Assist Ltd (in liquidation) –v- DEFRA (No 2) [2009] EWHC 1102 (TCC)), and the Family Mediation Council Code of Practice for family mediators, paras 5.6.1 and 5.6.4;

    iii) A Financial Dispute Resolution (FDR) Appointment in a financial remedy case; the judge conducting such a hearing is not permitted to have any further involvement with the application, save for giving directions: see rule 9.17(2) FPR 2010. In a financial case, of course, the Judge is likely to have been armed to conciliate with the provision of all the privileged communications between the parties.

  2. Private law proceedings in the family court have become more than ever “inquisitorial in nature” (Re C (Due Process) [2013] EWCA Civ 1412[2014] 1 FLR 1239 at [47]) in large measure attributable to the overwhelming number of unrepresented parties who require and deserve more than just neutral arbitration; in such cases, particularly at a FHDRA or a Dispute Resolution Appointment, there is presented to the judge “a real opportunity for dispute resolution in the same way that an Issues Resolution Hearing provides that facility in public law children proceedings” (per Ryder LJ at [47] in Re C (Due Process)). We recognise that in exceptional cases, it is possible that a judge may express a view in the context of judicially-assisted conciliation which may render it inappropriate for that judge to go on to determine contested issues at a substantive hearing. Recusal would only be justified, we emphasise exceptionally, if to proceed to hear the substantive case would cause “the fair-minded and informed observer, having considered the facts, …[to]… conclude that there was a real possibility that the tribunal was biased”: see Porter v Magill, Weeks v Magill [2001] UKHL 67, [2002] AC 357, [2002] 2 WLR 37, [2002] 1 All ER 465, [2002] LGR 51.
  3. As we indicated at [18] above at the 13 May hearing the Judge enabled the father to recognise that his residence application was not currently likely to succeed; the father, for his part, appears to have accepted the judicial steer. We do not see why that indication on its own should at that stage of the case have caused the Judge to disqualify herself from maintaining case responsibility. It is not apparent that the parties took any position or made any other offer of compromise which would have given rise to any other potential conflict for the judge.


However, ground 2, the father immediately triumphs on the third part – the Judge having said at the conciliation style hearing that she would not go on to decide any contested matters ought not to have later done so.

ii) Did the Judge err in making substantive orders on 3 July 2014 (including a section 91(14) order restricting any application under section 8 CA 1989):

a) In the absence of the father?

b) On the basis of factual findings made without forensic testing of the documentary material, of some of which the father had no knowledge?


c) Having indicated to the parties that she would not conduct any hearing in relation to residence issues?


Starting with (c)

 The father was entitled to the view that the Judge had earlier given the impression that she would not herself deal with such issues, giving him ‘liberty to apply’ at the earlier (13 May 14) hearing. In short, in making these substantive orders (which directly impacted upon the father’s prospective residence claim), the Judge did, in our judgment, precisely that which she had told the parties she would not do. In this respect we have reluctantly concluded that the Judge materially fell into error, leaving the father with an understandable sense of grievance, and reaching a conclusion which is in the circumstances unsustainable.


On the other aspects of this ground, the Court of Appeal were content that father had had notice of the hearing and it had not been improper to proceed in his absence (a),  but that it had been wrong to proceed to make serious orders that he had not been put on notice about and to do it on ‘evidence’ which he had not been able to challenge

  1. However, the father’s absence was a significant factor which contributed to two material errors which in our judgment fundamentally undermine the integrity of the Judge’s conclusions:

    i) She made findings of fact on documentary material of which the father had no notice, and on which he had had no chance to make representations;ii) She made substantive orders fundamentally affecting his relationship with his daughter, and his access to the court, having previously told the father that she would not ‘hear the hearing’ of any such substantive application.

    In [39-41] and [42] we enlarge on these points.

  2. The judgment of 3 July 2014, and orders which flow from it, is predicated upon findings of fact which the Judge reached on written documentation (e-mails and position statements) which was not in conventional form (see rule 22 FPR 2010). We make no criticism of that per se, but consider that the judge should have cautioned herself about the possible deficiencies inherent in making findings in these circumstances, particularly where the evidence was not tested. She found that the father’s conversations with Contact Centre A displayed “a truly monstrous display of manipulation” yet the father’s written representations (dated 19 June and 2 July 2014), which she had apparently considered in reaching that conclusion, do not address this evidence in detail; indeed the father makes no specific reference at all in his submission to the e-mail from Contact Centre A (see [22] above). We cannot be certain that the father had even seen it.
  3. Of more concern, the Judge refers to, and appears to rely on as evidence of the father’s generally disruptive and belligerent conduct, an e-mail from a solicitor (unconnected with the case) who is reported to have overheard a heated conversation (“raised voices”) between the father and the Children’s Guardian following the 13 May 2014 hearing. The Judge at the 3 July 2014 hearing told those present that she “has no reason to distrust” the author of the e-mail, which she describes as “quite shocking”. Again, the father, so far as we can tell, was unaware of this evidence and had no opportunity to challenge it; the father had as it happens separately written to the Court complaining that after the 13 May 2014 hearing the Guardian had threatened to report the father to his local social services department, but the Judge does not bring in to her reckoning the father’s complaint.
  4. It also appears that the father had not received the Guardian’s report prior to the 3 July 2014 hearing; certainly he claims not to have seen it at the time he sent in his written representations to the court on the day prior to the hearing. We found no evidence that he had had seen the position statement of the child’s solicitor which (by admission) “went a little further” than the Guardian’s report/recommendation. The father had had no opportunity to comment on any of this material which rendered the judge’s conclusions, in our judgment, highly vulnerable.
  5. More significantly, at the hearing on 3 July 2014 the Judge made orders which went further than had previously been intimated, bringing to a formal end the father’s relationship with his daughter for the foreseeable future, and curbing his ability to pursue an application under section 8 CA 1989 in relation to her for many years.


So the appeal would be granted on this basis and sent for re-hearing.  The other two grounds were comfortably made out, that the judicial analysis of the circumstances that would warrant making an order that would mean father having no contact fell far short of what the law requires, and that the legal and procedural protections for a party when making a section 91(14) order had not been met.


In final summary, the Court of Appeal had this to say


  1. Conclusion
  2. No one should underestimate the challenges to family judges of dealing with cases of this kind. A number of experienced family judges have laudably tried different methods, alternately robust and cautious, to achieve the best outcome for E, but appear to have failed. While we are conscious that the case has presented significant management issues, largely attributable it appears to the conduct of the father, regrettably judicial continuity has not been achieved and this may have added to the faltering process.
  3. By allowing this appeal, we are conscious that we are consigning these parties to a further round of litigation concerning E; this is particularly unfortunate given the history of this case, and the inevitable toll which it is taking on all of the parties, evident from our own assessment of them in court.
  4. In remitting the case for re-hearing, we do not intend to signal any view as to the merits of the mother’s applications, or the likely outcome of the same. We are conscious that E has had virtually no relationship with her father for over half of her life; the Judge could not be criticised for observing, as she did, that a contact regime has thus far proved impossible to sustain. Our own summary of the relevant history above may demonstrate this sufficiently. However, given the life-long implications for E, her parents and family, of the orders which have been successfully challenged by this application and appeal, it is imperative that a proper determination is achieved, as soon as practicable, in order that fully-informed welfare-based decisions can properly be made in the interests of E.






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