RSS Feed

Tag Archives: Court of Appeal

Cracking a case at IRH without father present – robust case management or jumping the gun?


This is a Court of Appeal decision


RE v North Yorkshire County Council and Others 2015


(Making me wonder if it is going to get shortened to “Re RE”)

It has an unfortunate typo in the very first line of the case report which will delight those like me with a childish mind – you really do need to be very careful with the spelling of the word “Public” in Public Law Outline.


Though this version has a certain aptness – in many parts of the country it doesn’t really exist at all, in some areas only a sliver of it can be observed,  everyone can agree that some pruning and trimming is wholly desirable, and nobody really pays it much attention until a bit gets stuck in your throat…


Anyway, the nuts and bolts of the case. The parties attended an Issue Resolution Hearing. The father was not in attendance – he was in prison and a production order was not sought.  [As a person in prison is not in a position to simply saunter out and wander down to Court of their own volition, what needs to happen is for their solicitor to apply to Court for a Production Order so that the prison staff know that the person is required in Court on that date and must be brought there. Without a Production order, the prisoner won’t be produced. With one, they will be produced two hours later than you asked for…]


The Court made a series of final orders


i) A Care Order in favour of the Local Authority, North Yorkshire County Council;

ii) Permission to the Local Authority, to refuse contact between the child (A) and his father (F) pursuant to section 34(4) of the Children Act 1989;

iii) Leave to the Local Authority to apply for a declaration removing responsibility to consult F in relation to A;

iv) A declaration that the Local Authority should be absolved from the statutory responsibility of consulting F in relation to A’s care and their obligation to involve him in the Looked After Children (LAC) consultation process;

v) A non-molestation order (granted until further order) prohibiting F from:

a) Contacting M, A or the maternal great grandmother (MGGM) either directly or indirectly or through any third party except through lawyers or through the Local Authority for the purpose of the letterbox contact;

b) Attending within 100 metres of any address where he knows M and A or MGGM are living;

c) Should F meet M in any public or private area he is ordered to leave immediately to a distance of at least 100m away.

A power of arrest was attached to the non-molestation order.



The father appealed the order, on the following grounds


  1. The Grounds of Appeal have been drafted in very general terms (even as amended) but the thematic basis, which embraces each of the orders set out above, is identified in Ground 1 of the Appellant’s Amended Grounds of Appeal:

    “The Judge was wrong to have made final orders at interim hearing which:

    1. Prevent a child from maintaining personal relations with a parent; and

    2. Prevent a child having a future determined by which both parents have played a part.”

    It is argued that at the IRH the Judge was not in a position to conduct the ‘holistic analysis’ of the available options that was required in order properly to do justice either to the interests of the child or the father. In particular, at Ground 3, which is really an amplification of the same point, it was contended:

    1. Before reaching the determination that it was necessary and proportionate to the identified risks, that ‘nothing else would do’ the Judge needed to be sure that all the evidence was before the Court. The Judge was wrong to have proceeded to make Final Orders at an interim hearing;

    i. Without the court bundle;

    ii. Without the father having had notice that the IRH might be dealt with as a final hearing;

    iii. Without the father having been produced from prison

    iv. Without having heard any evidence or allowed father the opportunity to properly challenge the evidence of the Social Worker and Children’s Guardian;

    v. Without some form of contact being tested, the father, having made requests for contact, photographs and for the Social Worker to visit him, had the father having never met A or received any update in respect of his developments except the redacted Care Plans when the child was nearly 5 months old.

    vi. Where despite a large number of concessions and acceptances by Father, enough for a court to consider the Threshold Criteria for making s.31 orders was crossed, the Threshold Criteria annexed to the order had only been agreed by the Mother and not by Father,

    vii. Without having proper evidence before the court as to the impact upon the child of having no contact with the paternal family.

  2. Further, the Declaratory Relief granted by the Judge is attacked on the separate ground that the Judge lacked a jurisdictional basis to grant such relief and accordingly exceeded the ambit of her lawful powers. No party now seeks to uphold these declarations recognising and conceding their lack of jurisdictional foundation. The Appellant however goes further and contends that ‘even had there been jurisdiction, it would have been wrong to make the orders’. Furthermore, it is asserted ‘the declarations were in breach of the F’s Article 6 rights and were unlawful.’



The Court of Appeal tackled the declaration first, and had no difficulty in saying that it ought not to have been made. Firstly, the Judge had not been sitting in the High Court or as a s9 Judge and had no jurisdiction for a declaration of that type,


As I have already foreshadowed, none of the advocates seek to salvage the declaration releasing the Local Authority from its obligation, pursuant to statute, to consult F in relation to A’s care and to involve him in the Looked After Children (LAC) consultation process. I propose therefore to address this point first. HHJ Finnerty was sitting as a Judge of the Family Court. Though she is an experienced Judge who sits regularly as a Deputy High Court Judge of the Family Division, she was not sitting in that capacity in this case on the day of the IRH. No application had been made for her to seek permission from her Family Division Liaison Judge or other Judge of the Division to sit as a Section 9 Judge of the High Court. It is plain that, through oversight, no thought was given to the jurisdictional basis of the declaration by either Counsel or the Judge. Such declarations are made pursuant to the inherent jurisdictional powers of the High Court, they have no other foundation. If this had been the sole difficulty here and had they been otherwise sustainable I would, for my part, have been prepared to investigate some pragmatic resolution, perhaps a speedy remission to the Judge inviting her to reconstitute herself in the High Court to authorise the declarations on a free standing application pursuant to the inherent jurisdiction. It may well be that there is no such solution. However, it is unnecessary for me to investigate further as I am of the clear view that the declarations are more generally flawed.


  1. There are sound reasons why declarations are required to be made under the Inherent Jurisdiction and commenced in the High Court. Frequently, as here, they involve authorisation of actions which fall outside statutory obligation or may, again as here, be directly contrary to it. Thus, these are invariably complex issues which require to be dealt with in the High Court. This is given effect to, unambiguously by Rule 12.36 (1) and PD 12D.
  2. In Re B [2013] EWCA Civ 964, the Court of Appeal considered whether there needs to be a formal transfer where the Circuit Judge is authorised to sit as a s.9 Judge. At para 7, Black LJ observed:

    Where a circuit judge is to sit as a High Court judge, it seems to me that this needs to be arranged deliberately, with the proceedings commenced in or transferred to the High Court. The mere fact that the judge who has heard the case happens to be authorised to sit as a High Court judge or to try Administrative Court cases might not redeem a failure to observe proper practice.’

  3. I note that Black LJ does not completely exclude some pragmatic resolution, limiting herself to the observation that the matter ‘might not’ be capable of being redeemed. Here, as I have stated, Counsel on behalf of the Respondents all agree that the declarations cannot be sustained for these jurisdictional reasons.


Secondly, that a declaration of that seriousness could not be made lightly and not on the sort of facts that this case presented

  1. Ms. Bazley submits the case law establishes that a Local Authority may only be absolved from its duty to consult and to provide information to a parent in ‘exceptional circumstances’. I agree.
  2. The duty, pursuant to s.26, is directory not mandatory. But, as Ms. Bazley submits, the result of non-compliance is treated as an irregularity: Re P (Children Act 1989, ss22 and 26: Local Authority Compliance) [2000] 2 FLR 910. Ms Bazley further directs this Court’s attention to Re C (Care: Consultation with Parent not in Child’s Best Interests) [2006] 2 FLR 787; [2005] EWHC 3390 (Fam). There Coleridge J granted a declaration to the effect that the Local Authority was absolved, in what were described as ‘exceptional circumstances’, from any obligation to consult the father. In that case the father was serving a lengthy sentence for raping the child, who did not wish the father to be informed or consulted at all in relation to her future. The child had applied, successfully, to discharge the father’s Parental Responsibility. The applications were decided on the basis of C’s best interests. The Court concluded that the father’s total disregard for C’s best interests in committing the offences, coupled with her consistently and strongly articulated wish that he be excluded from her life entirely, led to a clear conclusion that he should not participate in any discussions about her future welfare. Nonetheless even there, the court directed that he would be informed if the Local Authority intended to make significant changes to the Care Plan, such as applying for adoption. Coleridge J observed:

    “[30] The conclusions that I have come to are really these: the considerations which govern the dismissal of this father from further involvement in the proceedings, and the granting of the declarations seem to me to be the same. Indeed, there is little point in him remaining a party if he is not going to be given any information; indeed, it would be impractical for him to remain a party if he was not going to be given information.”

    [31] The second pivotal point, of course, is that this application is decided, first and foremost, on the basis of s 1 of the Children Act 1989 – that is to say, what is in S’s best interests. Of course, hers are not the only interests, but they are the ones which are of paramount concern to the court.

    [32] The third factor, self-evidently, is that it is a very exceptional case only which would attract this kind of relief. Self-evidently – and it hardly needs the human rights legislation to remind one – a parent is entitled to be fully involved, normally, in the decision-making process relating to his, or her, child, and if not to be involved, then at least informed about it. However, insofar as that engages the father’s rights to family life, then by the same token it engages S’s right to privacy and a family life.”

  3. The factual background, giving rise to this appeal, though undoubtedly very troubling does not, in my judgement, amount to ‘exceptional’. It is not difficult to contemplate strategies which enable the privacy and security of the placement to be protected by a far less draconian level of intervention. Accordingly, Ms. Bazley submits and I agree that: ‘even had it been lawful to make the declaration, the circumstances of this case were not so exceptional as to justify it being made‘.



The appeal was granted and the declaration set aside.

Next, the substantive part of the appeal – was it wrong for the Judge to have made final orders, particularly final orders which in effect ended the father’s relationship with the child when the father had not expressly agreed, had not attended Court (as a result of Production Orders not having been obtained) and had not had the opportunity then to oppose those final orders?

That may seem something of a no-brainer, but bear with me.  All advocates will need to be aware of particularly paragraph 49 and the duty that this places upon them


  1. The following uncontentious facts require highlighting:

    i) The Care Plan provided for mother and baby to remain together;

    ii) No Party opposed the plan;

    iii) It was agreed by all the parties that the question of A’s direct contact with F was not an issue for the final hearing, in consequence of F’s incarceration;

    iv) All agreed that a Care Order was the appropriate order;

    v) All agreed as to the extent to which F should be able to provide photographs / cards to A;

    vi) All Parties and the Judge were aware of the indeterminate Restraint Order passed by the Crown Court preventing F from having contact with M (and others);

    vii) F had not asked to be produced from custody at any stage in the case.

  2. It is axiomatic that this was precisely the kind of case that had every potential for resolution at the IRH. It was the professional duty of all concerned to ensure that it did. I regret to say that the profession fell short in that duty. The Judge had done everything she could. By contrast, the Advocates’ Meeting appears to have been formulaic and ineffective. It was plain that F wished to have photographs of his son. F’s solicitors had not obtained a Home Office Production Order to facilitate F’s attendance at Court. Accordingly, F’s counsel was not in a position to take instructions on last minute and important details. Ms. Bazley asserts that F repeatedly elected not to come to court because he considered his presence to be an impediment to the mother’s case. The obligation of his lawyers here was to ensure that F’s own case was not compromised by his non-attendance.
  3. It requires to be stated that Court Orders are there to be complied with, they are not aspirational targets. I strongly suspect that if the advocates’ meeting had absorbed the true objectives of the IRH, and F produced at court, this case would have resolved by agreement. Moreover, I have no doubt at all that had there been proper thought given to concluding the case, the advocates would, at the final meeting, have paid greater attention to the legal basis of the Local Authority’s application for a declaration.
  4. I agree with King LJ in Re S-W (supra) that a Final Order at a CMH will be appropriate only occasionally. However, the message must go out loudly and clearly that the Court will and must always consider the making of Final Orders at the IRH. It must be understood that it is the professional duty of the advocates and all the lawyers, in every case, to direct their attention to the obligation to achieve finality at the IRH wherever possible. It follows that the lay Parties are always required to attend. If a Party is in custody a Home Office Production Order should be obtained and, if necessary, at the instigation of the Judge.
  5. In granting permission to appeal Ryder LJ considered that this case raised an important issue. Though the Court of Appeal has considered these points before it has been in the context of Judges who have been too robust in concluding cases where evidence required to be tested. This case, for the reasons I have set out, is one of wholly different complexion. It provides an opportunity to signal the cultural shift brought about by the Family Justice Reforms and the particular responsibilities on all involved at the IRH.
  6. Though I regret to say it, where the Judge’s objectives (i.e. to facilitate the potential for resolution of the case) are thwarted by non-compliance with Case Management Orders then this may in future have to trigger the consideration of appropriate sanctions in costs. Such orders are counterintuitive in a court arena where much reliance is placed on cooperation and common endeavour. However, the Family Justice Reforms are not merely administrative; they are designed, as I have emphasised above, to reconnect the profession with a core welfare principle: the avoidance of delay.
  7. The approach of the first instance Judge has been entirely vindicated in this Court. The Parties have been asked to consider whether the key issues were capable of resolution given the very narrow ambit of dispute. It struck me that it would have been hugely disproportionate to adjourn them for hearing before a High Court Judge, as it was submitted the outcome should be.


In the event, the parties at the Appeal hearing were able to reach agreement on indirect contact and Christmas cards etc, so in part the appeal fell by the wayside. But putting that to one side, was the Judge wrong to have made final orders when father’s attendance had not been facilitated, or was this robust case management?  It seems from my reading that the Court of Appeal would have backed the trial Judge here (other than on the declaration) and the appeal if it had been on those grounds alone would have failed. The responsibility here was with the advocates for not ensuring that either father’s position was entirely in keeping with the orders sought or to obtain a Production Order so that negotiations / representations could have been dealt with at the IRH.


The Court of Appeal put down a marker here that advocates must always be alive to the possibility that the case may be concluded at IRH and turn their minds to the final orders.   [They didn’t actually expressly deal with some of the important issues in the appeal – to whit, whether this Judge had made such serious final orders without a Court bundle i.e reading all of the papers, and the threshold having been finally determined taking into account mother’s concessions but including within it matters that father disputed without the Court hearing evidence about the disputed matters and making findings]






Bickering (or the ever decreasing circle of life continues)

[Grateful to @dilettantevoice for highlighting this case to me on Twitter]


You may recall the Court of Appeal taking Mostyn J to task for taking them to task for taking him to task.


Well, none of you thought that it would end there, did you?

Re CD 2015

An exceptionally tricky case, and one absolutely can’t underestimate just how difficult a job High Court Judges have to do. This one involved a woman with very severe mental health problems, who after she stabbed herself in the stomach, the hospital found that she had tumours in her stomach that needed to be removed. Although the woman was detained under the Mental Health Act, the power to perform treatment against a person’s will under that Act is really confined to treatment for their mental health, and this was a physical treatment. As the woman would be under anesthetic at the time, the High Court has previously ruled that this would be a deprivation of liberty.

A NHS Trust v A [2013] EWHC 2442(Fam) [2014] Fam 161

Additionally, there’s the complication of some wording in the Mental Capacity Act which suggests that a deprivation of liberty can only be dealt with under the Mental Health Act if the person is detained under the Mental Health Act.



  • he confusion surrounding the main test is mirrored by the confusion that the interface with the MHA gives rise to. I recently have had to grapple with this in Re A [2015] EWCOP 71. Mr Justice Baker has given a characteristically exhaustive judgment on the subject in A NHS Trust v A [2013] EWHC 2442(Fam) [2014] Fam 161 as has Judge Parry in A Local Health Board v AB [2015] EWCOP 31. The confusion arises from the highly ambiguous and double negative laden terms of para 3(2) of Schedule 1A to the MCA 2005. This states:


“P is ineligible if the authorised course of action is not in accordance with a requirement which the relevant regime imposes”


  • In this case CD is P. “Ineligible” means ineligible to be deprived of liberty by the 2005 Act. The “authorised course of action” is the surgical removal of the ovarian masses. The “relevant regime” is the MHA regime whereby CD is compulsorily detained in a mental hospital. So, for our purposes, para 3(2) reads:


“CD is ineligible to be deprived of liberty by the 2005 Act if the surgical removal of the ovarian masses is not in accordance with a requirement which the MHA regime whereby CD is compulsorily detained in a mental hospital imposes.”


  • Mr Auburn rightly says that there are two ways of reading this which give rise to directly contradictory results. The first is in a pitilessly literal way, as argued by Mr Matthewson. It is this: if the surgical removal of the ovarian masses is not in accordance with a requirement of the MHA regime whereby CD is compulsorily detained in a mental hospital then CD is ineligible to be deprived of liberty by the 2005 Act. It isn’t, he says, so she is ineligible and so the necessary orders have to be made under the inherent jurisdiction of the High Court. The problem with this interpretation is that it gives rise to a result directly contrary to the intention of the statute and to the express terms of the Code of Practice, as I explained in Re A at paras 10 – 14 (accepting the submissions not only of Ms Butler-Cole but also of Ms Dolan, on that occasion instructed by the Official Solicitor).
  • The alternative interpretation, which I adopted in Re A, and which I maintain to be correct is this: if the MHA regime whereby CD is compulsorily detained in a mental hospital imposes a specific requirement for dealing with the problem of the ovarian masses then CD is ineligible to be deprived of her liberty under the 2005 Act for the purposes of dealing with the problem by a different procedure under that Act. It doesn’t (obviously) so she isn’t ineligible. As I said in Re A this is plainly what the scheme of section 16A and Schedule 1A intends and the matter is conclusively confirmed by paras 4.50 and 4.51 of the Code of Practice. In my judgment it would be ridiculous if the whole case had to leave the Court of Protection with its statutory powers and enter the High Court exercising common law inherent powers by virtue of a pedantically literal reading of para 3(2).
  • The orders which I make will be made by me sitting in the Court of Protection under powers granted by Parliament in the MCA.



Mostyn J is utterly and completely right here, the wording of this piece of the legislation is ghastly (double-negatives are really not something that you want in a piece of legislation anywhere, particularly about something so serious) and it has left a serious lacuna in the law.  And you know how High Court Judges tend to solve lacunas in the law – that’s right, the ‘theoreticaly limitless powers of the inherent jurisdiction’  [Though not here, Mostyn eschewing Baker J’s inherent jurisdiction solution to say instead that the power must really remain under the MCA]


A very tricky case, and almost all of what Mostyn J says in the judgment is careful, apposite and fair.

Unfortunately, this passage decides to resurrect the quarrel with both the Supreme Court in Cheshire West, and the Court of Appeal


In KW & Ors v Rochdale Metropolitan Borough Council [2015] EWCA Civ 1054 at para 32 the Court of Appeal stated “even if Cheshire West is wrong, there is nothing confusing about it”. It may seem that way from the lofty heights of the Court of Appeal; and of course the literal words of the Supreme Court’s test are perfectly easy to understand. But for we hoplites who have to administer it at first instance the scope and ramifications of the test are, with respect, extremely confusing. As Mr Matthewson, instructed by the Official Solicitor for CD, rightly stated “anyone who deals with this day by day knows this is confusing”. What of the situation where, as here, the protected person actively and fervently expresses the wish to undergo the procedure that is said to amount to a deprivation of liberty? What of the situation, as was the case in Bournemouth Borough Council v PS & Anor [2015] EWCOP 39, where the protected person shows no inclination whatsoever to leave the home where he is cared for round the clock? What of the situation where the protected person is seriously disabled, perhaps bedridden, perhaps in a coma, and is thus physically incapable of exercising the freedom to leave? The answers I received from the Bar when discussing these scenarios belie the blithe suggestion that “there is nothing confusing” about the test. I do not accept the criticism that my approach to these cases is “distorted” by my “passionate” and “tenacious” belief that Cheshire West is wrong. Rather, it is a loyal approach which tries to apply literally and purposively the Supreme Court’s test while at the same time pointing out how confusing and curious it is, to say nothing of the cost it causes to the public purse



I think that there IS an argument about whether Baker J’s decision in Re A (that the surgical procedure amounts to a deprivation of liberty) actually meets the test in Cheshire West – I think that one can argue it either way and a strong case can be made for if a Court has declared that the procedure is in P’s best interests despite a lack of consent that the patient has had sufficient safeguards and an additional authorisation of a Deprivation of Liberty isn’t necessary.

It is also quite right that we now have a definition of deprivation of liberty which is utterly unworkable in practice due to resource implications (as we have seen, if every LA issued every deprivation of liberty application that they need to on the wording of Cheshire West, the Court would spend the next five years dealing with this years cases, and so on), and that the MCA on this particular issue is badly in need of reform. Such reform not likely to hit us until 2017 at best.


But the Rule of Law is the Rule of Law.  Whatever one might think of the Cheshire West test (and personal opinions and critiques of it are perfectly valid – it wasn’t a unanimous decision on all issues in the Supreme Court itself), the test has been set and it is now to be applied.  In the first of the two examples, it is really plain that the absence of resistance from P if they lack capacity is neither here nor there, that’s not a legitimate part of the test. After all, that was the very issue in Bournewood that led to the development of the MCA in  the first place. The latter question of whether you assess whether a person is being deprived of their liberty by looking at their physical characteristics has been squashed by the Supreme Court.

[There IS , I think an argument about whether someone who is physically prevented temporarily from getting up to leave – under anaesthetic for example, or that they have a broken leg that will heal, meets the Cheshire West test. But that’s for a Judge to determine when they are faced with an application of the test to those particular facts]


It is a fine line between a Judge being free to criticise the law when it is resulting in unfairness and staying out of politics and just applying the law as it is to the facts of the case.

I’m aware that I am being hypocritical here – because I do think that Judges can and should speak out when the law at present is unfair and makes unreasonable outcomes when it is applied.  Because when Mostyn J and others have attacked LASPO, I’ve supported and applauded them. That is a law whose application is currently unfair (particularly the Legal Aid Agency’s approach to granting exceptional funding where human rights require it, but ignoring when Judges tell them that this particular case would breach a person’s human rights if funding were not given).  I also disagree with LASPO itself, but I’m stuck with it unless and until Parliament changes it. So, am I just as unreasonable as Mostyn J considers the Court of Appeal to be – given that I’m happy for him to critique and attack the law when I agree with him, but criticise him when I think the law is right?

Damn, I’ve painted myself into a corner here.


Perhaps what we need is a case with the citation Mostyn J v Court of Appeal  (to be decided in the Supreme Court)

Abuse by foster parents – can the Local Authority be sued?


Almost every case I write about is full of human tragedy and sadness, and this one particularly so. It involves a woman who when she was a child was placed in the care of foster parents, one presumes because it was decided that her own parents could not perform that task. That particular foster carer went on to physically and sexually abuse her. Dreadfully sad and unspeakably awful. I hope (but don’t know) that the foster carers have been convicted and punished.

The issue for this case was whether the woman could sue the Council who placed her there. They did not know of the abuse at the time, and there is no suggestion here that there was negligence on their part  (which would be either that the fostering checks hadn’t been carried out, or that they failed to make the visits and ongoing checks that were required by law at that time, or that they learned of the abuse and failed to act).  Councils can be sued for negligence, if any of those things were alleged and capable of being proven, but negligence is not the case pleaded here. The detail makes it plain that none of those failings were present.


Instead, it is something called “vicarious liability”, which in simple language means that an employer can be held legally responsible in some situations for things that its employees did. Vicarious liability can be a useful remedy where the organisation was not negligent, but where they have the necessary care and control over the employee’s actions. It is useful in particular because generally an employer (for example a Council) has more money (and insurance) than the wrong-doers themselves, who would not have the financial means to pay the compensation that the victim would really deserve.

So the fundamental question for the Court of Appeal here was “Can the Council be vicariously liable for criminal actions carried out by foster carers?”


NA v Nottingham County Council 2015   (It should be Nottinghamshire, but who am I to question the Court of Appeal?)


Unpleasantly, a lot of the law around vicarious liability involves the sexual abuse of children, with the lead case being one about the Catholic Child Welfare Service Various Claimants v Catholic Child Welfare Society and Others [2012] UKSC 56, [2013] 2 AC 1


“35. The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicariously liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied: (i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee’s activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employer.”


In this case, the critical element was (v) whether the employee (the foster carers) to a greater or lesser degree was under the control of the employer (the Council)


The Court of Appeal ruled unanimously that there was no vicarious liability here


The provision of family life is not and by definition cannot be part of the activity of the local authority or of the enterprise upon which it is engaged. Family life is not capable of being so regarded, precisely because inherent in it is a complete absence of external control over the imposition or arrangement of day to day family routine, save insofar as is provided by the general law or by ordinary social conventions. The control retained by the local authority is at a higher or macro level. Micro management of the day to day family life of foster children, or of their foster parents in the manner in which they create the day to day family environment, would be inimical to that which fostering sets out to achieve, for the reasons expressed by McLachlin CJ at paragraph 24 of her judgment. The control retained by the local authority, over and above the proper selection of foster parents and adequate supervision of the placement which is here not in issue, is thus irrelevant to the risk of abuse occurring during the unregulated course of life in the foster home. In the Catholic Child Welfare case Lord Phillips described the relationship between the Brothers and the Institute as “closer than that of an employer and its employees.” The manner in which the Brother teachers were obliged to conduct themselves as teachers was dictated by the Institute’s rules. There is in my view not the remotest of analogies to be drawn between that situation and the relationship of local authority to foster parents.





For vicarious liability to exist, there would have to be (1) the necessary relationship between the foster parents and the local authority and (2) the requisite close connection between that relationship and the abuse that they committed (see paragraph 21of Lord Phillips’ judgment in Various Claimants v Catholic Church Welfare Society, supra, and also paragraph 88 where he proceeds to apply what he has distilled from the authorities in the preceding paragraphs). I do not consider that the relationship between the foster parents and the local authority was of the required nature. It was not, to my mind, sufficiently akin to employment. Although the significance of control in the relationship has changed over the years, it remains a relevant aspect of the assessment of whether there is vicarious liability. Certain aspects of the care of a child by foster parents are, and were at the relevant time, regulated and the local authority have a supervisory duty over the placement, which can be ended if they consider it appropriate. But the essence of the arrangement is, just as it was at the time with which we are concerned, that the child is placed with the foster parents to live with them as a member of their family. The child’s day to day life is in the charge of the foster parents, who are expected to give the child as normal an experience of family life as they can. The degree of independence that this gives the foster parents is not indicative, in my view, of a relationship giving rise to vicarious liability.



There was a second part of the claim which was that this was a “non-delegable duty”  – i.e that it was the Council’s job to provide a child whom they are looking after with a safe home and they could not delegate that duty to the foster carers. This is a much more technical argument, and beyond the scope of this blog to explore in detail, but the Court of Appeal ruled that there was not such a duty here. That possible remedy arises largely from a case called  Woodland v Swimming Teachers Association and others [2013] UKSC 66 [2014] AC 537, decided in the Supreme Court and setting out five ingredients.

The Court of Appeal did not think that this case met all of those Woodland ingredients, and were also cautious about viewing the Woodland ingredients in isolation.



  • I do not propose to take my discussion of this point any further because it seems to me that consideration of the five features set out in Lord Sumption’s paragraph 23 should not be undertaken in a limbo. This is because the question of liability for non-delegable duty has got to be approached having very much in mind what he said at paragraph 25 of the Woodland case:


“The courts should be sensitive about imposing unreasonable financial burdens on those providing critical public services. A non-delegable duty of care should be imputed to schools only so far as it would be fair, just and reasonable to do so.”

Lord Sumption explained why he considered that no unreasonable burden would be imposed in that case. In this case, however, I am of the view that to impose a non-delegable duty on a local authority would be unreasonably burdensome and, in fact, contrary to the interests of the many children for whom they have to care.


  • I therefore find myself in agreement with Males J’s conclusion about this aspect of the case. I take into account the desirability of providing a remedy of substance for someone in the Appellant’s position. Nothing that I say here should be taken as suggesting that I am anything other than deeply conscious of the dreadful treatment she has suffered and sympathetic to the lasting impact that it must have had upon her. However, there are powerful reasons against the imposition of liability in circumstances such as the present ones.
  • It is a fundamental principle of social work practice that children are best placed in a family environment. If they cannot live with their parents, the majority of children are therefore likely to benefit most from a foster placement. Careful screening of prospective foster parents, training, supervision of the foster family, proper checks and balances in relation to the foster parents’ practice, and regular contact between social services and the child all play their part in ensuring that the child is safe with the foster parents. If, through the duty that it places upon the local authority, the law of negligence improves the chances of these safeguards being rigorously maintained, it is a very good thing. But, as this case demonstrates, even proper care on the part of the local authority cannot always prevent harm coming to the child from the foster parents. It seems to me that the imposition of liability for the actions of the foster parents by means of a non-delegable duty, operating in the absence of negligence on the part of the local authority, would be likely to provoke the channelling of even more of the local authorities’ scarce resources into attempting to ensure that nothing went wrong and, if such were possible, into insuring against potential liability (see paragraph 201 of Males J’s judgment). Particularly influential in my thinking is the fear that it would also lead to defensive practice in relation to the placement of children. Local authorities would inevitably become more cautious about taking the risk of placing children with foster parents and may possibly place some children who would otherwise have had the benefit of a foster home in local authority run homes instead, simply in order that the local authority can exert greater control over their day to day care. Males J dealt with this at paragraph 204 of his judgment. It was referred to also in the Canadian case of KLB v British Columbia [2001] SCR 404, in the context of vicarious liability, at paragraph 26.
  • The imposition of liability on the local authority might also give rise to another undesirable consequence for children. Important amongst the ways in which, under the statutes of the time, the local authority could discharge its duty to provide accommodation for the child was by allowing the child to live with a parent or relative (see section 21(2) of the Child Care Act 1980). If the local authority had a non-delegable duty towards a child in their care under a care order, making them liable for abusive actions on the part of a foster parent, there seems little principled basis for saying that they would not also be liable for such actions on the part of a parent with whom the child had been placed in this way. That sort of strict liability might well, it seems to me, affect the willingness of the local authority to take what would otherwise be seen as the manageable risk of allowing the child to live at home, thus reducing the chance of reuniting the child with his or her own family where that would, in fact, benefit the child. That is the point made by Males J at paragraph 206.
  • To these points, I would add that it is material, when considering a possible non-delegable duty rather than liability in negligence, to remember that the local authority has the powers and duties of a parent. I raised earlier my uncertainty as to what the precise implications of this are in the context of non-delegable duty. However, whatever they may be, I think it appropriate to bear in mind that a parent would not have a strict liability for harm caused by someone to whom he or she had entrusted the child’s care, for instance a nanny or, to take Burnett LJ’s examples, friends or relations. If the local authority’s powers and duties under statute are those of a parent, and where it is day to day care by a third party that is under consideration rather than strategic and management decisions on the part of the local authority, it is difficult to see why the local authority’s liability should be more onerous than a parent’s.
  • I acknowledge that although I am quite clear in my conclusion that the judge was right that the imposition of a non-delegable duty would not be fair, just and reasonable, I have not expressed firm views about the precise nature of the duty that should be considered to be at the heart of the non-delegable duty argument or about all of the five indicia of non-delegable duty. As Baroness Hale observed at paragraph 28 of the Woodland case, the common law is a dynamic instrument, but caution is needed in developing it. The law in relation to non-delegable duties is still evolving, as the Woodland case itself showed, and it seems to me preferable that I should only determine those matters which are essential to the determination of the appeal which, for the reasons that I hope appear from the preceding paragraphs, I would dismiss.




It does seem awful that this woman has no legal remedy for the awful things that were done to her – assuming that Criminal Injuries Compensation is not open to her (it may not be, due to the passage of time).  Nothing in this case affects a Local Authority’s liability under negligence – i.e if they had known of the abuse and failed to stop it, or it had been a foreseeable risk that they had failed to prevent through carelessness.


There are some hints in this judgment that it might go up to the Supreme Court – as it is largely interpretation of two distinct and recent Supreme Court authorities, that seems a distinct possibility.

Court of Appeal – section 20 abuse


There have been several reported cases about Local Authorities misusing section 20 now, to obtain “voluntary accommodation” of children in foster care where the ‘voluntary’ element doesn’t seem all that voluntary, and therefore it was only a matter of time before the Court of Appeal fell upon such a case and made an example of it.


Here it is:-


Re N (Children: Adoption : Jurisdiction) 2015


As you can see from the title, it is also a case about adoption and the jurisdiction to make adoption orders about children who are born to foreign parents or who live overseas by the time the order is made.  I would really want more time to ponder those parts of the judgment before writing it up.


This particular sentence from Aitkens LJ is probably worthy of a piece on its own – raising the issue of ‘limping adoption orders’


There is one further comment I wish to make. Both the President and Black LJ have emphasised that when an English court is considering making a placement order or adoption order in respect of a foreign national child, it must consider, as part of the “welfare” exercise under section 1(4) of the 2002 Act, the possibility of the result being a “limping” adoption order. By that they mean an adoption order which, although fully effective in this country, might be ineffective in other countries that the child and his adopters may wish or need to visit. There is a danger that natural parent(s) (or perhaps other parties) who oppose the adoption, will attempt to turn this factor into a major forensic battle by engaging foreign lawyers to give opinions on the effectiveness (or lack of it) of an English adoption order in other countries, in particular the state of the nationality of the natural parent(s). Those legal opinions might then be challenged and there is the danger of that issue becoming expensive and time consuming “satellite litigation”. I hope that this can be avoided by a robust application of the Family Procedure Rules relating to expert opinions.


So, focussing just on the section 20 issues  (If you want the background to what section 20 is, what drift is and why it is a problem, I’ll point you towards my most recent piece on it


This is what the Court of Appeal had to say  (and this is one of those judgments that the President has cascaded down – which is a posh way of saying “sent by email to all Courts saying that they must read it and follow it”)


  1. Other matters: section 20 of the 1989 Act
  2. The first relates to the use by the local authority – in my judgment the misuse by the local authority – of the procedure under section 20 of the 1989 Act. As we have seen, the children were placed in accordance with section 20 in May 2013, yet it was not until January 2014, over eight months later, that the local authority eventually issued care proceedings. Section 20 may, in an appropriate case, have a proper role to play as a short-term measure pending the commencement of care proceedings, but the use of section 20 as a prelude to care proceedings for a period as long as here is wholly unacceptable. It is, in my judgment, and I use the phrase advisedly and deliberately, a misuse by the local authority of its statutory powers.
  3. As I said in Re A (A Child), Darlington Borough Council v M [2015] EWFC 11, para 100:

    “There is, I fear, far too much misuse and abuse of section 20 and this can no longer be tolerated.”

    I drew attention there, and I draw attention again, to the extremely critical comments of the Court of Appeal in Re W (Children) [2014] EWCA Civ 1065, as also to the decision of Keehan J in Northamptonshire County Council v AS and Ors [2015] EWHC 199 (Fam). As Keehan J pointed out in the latter case (para 37), the accommodation of a child under a section 20 agreement deprives the child of the benefit of having an independent children’s guardian to represent and safeguard his interests and deprives the court of the ability to control the planning for the child and prevent or reduce unnecessary and avoidable delay. In that case the local authority ended up having to pay substantial damages.

  4. Then there was the decision of Cobb J in Newcastle City Council v WM and ors [2015] EWFC 42. He described the local authority (paras 46, 49) as having acted unlawfully and in dereliction of its duty. We had occasion to return to the problem very recently in Re CB (A Child) [2015] EWCA Civ 888, para 86, a case involving the London Borough of Merton. Even more recent is the searing judgment of Sir Robert Francis QC, sitting as a Deputy High Court Judge in the Queen’s Bench Division in Williams and anor v London Borough of Hackney [2015] EWHC 2629 (QB), another case in which the local authority had to pay damages.
  5. Moreover, there has in recent months been a litany of judgments in which experienced judges of the Family Court have had occasion to condemn local authorities, often in necessarily strong, on occasions withering, language, for misuse, and in some cases plain abuse, of section 20: see, for example, Re P (A Child: Use of S.20 CA 1989) [2014] EWFC 775, a case involving the London Borough of Redbridge, Re N (Children) [2015] EWFC 37, a case involving South Tyneside Metropolitan Borough Council, Medway Council v A and ors (Learning Disability: Foster Placement) [2015] EWFC B66, Gloucestershire County Council v M and C [2015] EWFC B147, Gloucestershire County Council v S [2015] EWFC B149, Re AS (Unlawful Removal of a Child) [2015] EWFC B150, a case where damages were awarded against the London Borough of Brent, and Medway Council v M and T (By Her Children’s Guardian) [2015] EWFC B164, another case where substantial damages were awarded against a local authority. I need not yet further lengthen this judgment with an analysis of this melancholy litany but, if I may say so, Directors of Social Services and Local Authority Heads of Legal Services might be well advised to study all these cases, and all the other cases I have mentioned on the point, with a view to considering whether their authority’s current practices and procedures are satisfactory.
  6. The misuse of section 20 in a case, like this, with an international element, is particularly serious. I have already drawn attention (paragraphs 50-51 above) to the consequences of the delay in this case. In Leicester City Council v S & Ors [2014] EWHC 1575 (Fam), a Hungarian child born in this country on 26 March 2013 was accommodated by the local authority under section 20 on 12 April 2013 but the care proceedings were not commenced until 10 October 2013. Moylan J was extremely critical of the local authority. I have already set out (paragraph 115 above) his observations on the wider picture.
  7. What the recent case-law illustrates to an alarming degree are four separate problems, all too often seen in combination.
  8. The first relates to the failure of the local authority to obtain informed consent from the parent(s) at the outset. A local authority cannot use its powers under section 20 if a parent “objects”: see section 20(7). So where, as here, the child’s parent is known and in contact with the local authority, the local authority requires the consent of the parent. We dealt with the point in Re W (Children) [2014] EWCA Civ 1065, para 34:

    “as Hedley J put it in Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987, para 27, the use of section 20 “must not be compulsion in disguise”. And any such agreement requires genuine consent, not mere “submission in the face of asserted State authority”: R (G) v Nottingham City Council and Nottingham University Hospital [2008] EWHC 400 (Admin), [2008] 1 FLR 1668, para 61, and Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987, para 44.”

  9. In this connection local authorities and their employees must heed the guidance set out by Hedley J in Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987, para 46:

    “(i) Every parent has the right, if capacitous, to exercise their parental responsibility to consent under s 20 to have their child accommodated by the local authority and every local authority has power under s 20(4) so to accommodate provided that it is consistent with the welfare of the child.

    (ii) Every social worker obtaining such a consent is under a personal duty (the outcome of which may not be dictated to them by others) to be satisfied that the person giving the consent does not lack the capacity to do so.

    (iii) In taking any such consent the social worker must actively address the issue of capacity and take into account all the circumstances prevailing at the time and consider the questions raised by s 3 of the Mental Capacity Act 2005, and in particular the mother’s capacity at that time to use and weigh all the relevant information.

    (iv) If the social worker has doubts about capacity no further attempt should be made to obtain consent on that occasion and advice should be sought from the social work team leader or management.

    (v) If the social worker is satisfied that the person whose consent is sought does not lack capacity, the social worker must be satisfied that the consent is fully informed:

    (a) Does the parent fully understand the consequences of giving such a consent?

    (b) Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?

    (c) Is the parent in possession of all the facts and issues material to the giving of consent?

    (vi) If not satisfied that the answers to (a)–(c) above are all ‘yes’, no further attempt should be made to obtain consent on that occasion and advice should be sought as above and the social work team should further consider taking legal advice if thought necessary.

    (vii) If the social worker is satisfied that the consent is fully informed then it is necessary to be further satisfied that the giving of such consent and the subsequent removal is both fair and proportionate.

    (viii) In considering that it may be necessary to ask:

    (a) What is the current physical and psychological state of the parent?

    (b) If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?

    (c) Is it necessary for the safety of the child for her to be removed at this time?

    (d) Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?

    (ix) If having done all this and, if necessary, having taken further advice (as above and including where necessary legal advice), the social worker then considers that a fully informed consent has been received from a capacitous mother in circumstances where removal is necessary and proportionate, consent may be acted upon.

    (x) In the light of the foregoing, local authorities may want to approach with great care the obtaining of s 20 agreements from mothers in the aftermath of birth, especially where there is no immediate danger to the child and where probably no order would be made.”

  10. I add that in cases where the parent is not fluent in English it is vital to ensure that the parent has a proper understanding of what precisely they are being asked to agree to.
  11. The second problem relates to the form in which the consent of the parent(s) is recorded. There is, in law, no requirement for the agreement to be in or evidenced by writing: R (G) v Nottingham City Council and Nottingham University Hospital [2008] EWHC 400 (Admin), [2008] 1 FLR 1668, para 53. But a prudent local authority will surely always wish to ensure that an alleged parental consent in such a case is properly recorded in writing and evidenced by the parent’s signature.
  12. A feature of recent cases has been the serious deficiencies apparent in the drafting of too many section 20 agreements. In Re W (Children) [2014] EWCA Civ 1065, we expressed some pungent observations about the form of an agreement which in places was barely literate. Tomlinson LJ (para 41) described the agreement as “almost comical in the manner in which it apparently proclaims that it has been entered into under something approaching duress.” In Williams and anor v London Borough of Hackney [2015] EWHC 2629 (QB), the Deputy Judge was exceedingly critical (para 65) both of the terms of the agreement and of the circumstances in which the parents’ ‘consent’ had been obtained. There had, he said, been “compulsion in disguise” and “such agreement or acquiescence as took place was not fairly obtained.”
  13. The third problem relates to the fact that, far too often, the arrangements under section 20 are allowed to continue for far too long. This needs no elaboration.
  14. This is related to the fourth problem, the seeming reluctance of local authorities to return the child to the parent(s) immediately upon a withdrawal of parental consent. It is important for local authorities to recognise that, as section 20(8) of the 1989 Act provides:

    “Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.”

    This means what it says. A local authority which fails to permit a parent to remove a child in circumstances within section 20(8) acts unlawfully, exposes itself to proceedings at the suit of the parent and may even be guilty of a criminal offence. A parent in that position could bring a claim against the local authority for judicial review or, indeed, seek an immediate writ of habeas corpus against the local authority. I should add that I am exceedingly sceptical as to whether a parent can lawfully contract out of section 20(8) in advance, as by agreeing with the local authority to give a specified period of notice before exercising their section 20(8) right.

  15. It follows, in my judgment, that for the future good practice requires the following, in addition to proper compliance with the guidance given by Hedley J which I have set out above: i) Wherever possible the agreement of a parent to the accommodation of their child under section 20 should be properly recorded in writing and evidenced by the parent’s signature.

    ii) The written document should be clear and precise as to its terms, drafted in simple and straight-forward language that the particular parent can readily understand.

    iii) The written document should spell out, following the language of section 20(8), that the parent can “remove the child” from the local authority accommodation “at any time”.

    iv) The written document should not seek to impose any fetters on the exercise of the parent’s right under section 20(8).

    v) Where the parent is not fluent in English, the written document should be translated into the parent’s own language and the parent should sign the foreign language text, adding, in the parent’s language, words to the effect that ‘I have read this document and I agree to its terms.’

  16. The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop. Judges will and must be alert to the problem and pro-active in putting an end to it. From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified, can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages.


The marker is down then.  Any LA facing a challenge about misuse of section 20 is on notice that damages may follow, and certainly where the misuse begins after today’s judgment one would expect damages to play a part.


The President also tackles here something which has been on my mind for a month. The practice by which agreement is reached that an Interim Care Order is not needed, because the parent agrees (either in a section 20 written agreement) or in a preamble in the Court order that they “agree to section 20 accommodation and agree not to remove without giving seven days notice”   – that is a fairly common compromise which avoids the need for an ICO or to have a fight in Court about the child’s legal status where it is agreed by the parents that the child should stay in foster care whilst assessments are carried out.


As the President says here


para 169

 I should add that I am exceedingly sceptical as to whether a parent can lawfully contract out of section 20(8) in advance, as by agreeing with the local authority to give a specified period of notice before exercising their section 20(8) right.


and here

para 170

iv) The written document should not seek to impose any fetters on the exercise of the parent’s right under section 20(8)


I don’t think that this is legally permissable any longer. (The Court of Appeal could, of course, have said explicitly that such a fetter can only be made where the parent agrees after having had independent legal advice, but they didn’t)

That means that Courts up and down the country are going to be faced with arguments as to whether the right thing for a child is to make an Interim Care Order, OR to rely on a section 20 agreement that could be withdrawn at any time  (including the obvious nightmare scenarios of “twenty minutes after we leave Court” or “at five to five on a Friday night” or “at 5pm on Christmas Eve).


The other thrust of the President’s comments on section 20 (8) objections are that as a result, surely even a delay in return of the child to place the matter before the Court for an EPO hearing is going to be a breach unless the parents themselves agree to that course of action.  That in turn raises the spectre of an increase in children being taken into Police Protection, since a forseeable outcome of this case is:-


(A) Parent says at 4.55pm on Friday “I want little Johnny home now, I object to section 20”

(B) LA are in breach of the Act and may be committing a criminal offence if that child is not on his way home by 4.56pm

(C) Courts aren’t likely to be able to hear an EPO application on one minutes notice

(D) The police remove under Police Protection instead


  [I seriously don’t recommend that as an option as a result of the many cases which batter social workers and police officers for misuse of Police Protection, but I do wonder whether the current case law on Police Protection really works after Re N  – those cases making it plain that it should be the Court decision not a police decision only work if there is time to place the matter before the Court.  BUT until one of them is challenged and the law on Police Protection changes, almost any removal under Police Protection can be scrutinised and perhap[s condemned.  And of course the alternative to THAT, is that more and more cases will instead find their way into care proceedings.  I think that the decisions on Police Protection and section 20 are right, but if we have learned nothing else since the Family Justice Review it should be that fixing one problem often has substantial unintended consequences and causes another problem elsewhere]


So, LA lawyers up and down the country, get hold of the current section 20 agreement, and rewrite it to comply with this judgment.

Ever decreasing circles – Court of Appeal take Mostyn J to task for taking them to task for taking him to task…


Readers of the blog may be familiar with Mostyn J’s continuing battle to have the Supreme Court change their mind about the deprivation of liberty test set down in Cheshire West, and failing that to simply disagree with their decision at every opportunity.

In this particular case, Rochdale had asked Mostyn J to authorise a care plan for a person lacking capacity that clearly amounted, on the Cheshire West test to a deprivation of liberty.

At the first hearing, Mostyn J told everyone that Cheshire West was nonsense (politely and judicially and intellectually, but that was the gist) and that the person was not being deprived of their liberty and thus there was no need to authorise it.

The case was appealed, and rather unusually, by the time that it got to the Court of Appeal EVERYONE agreed that the Mostyn J judgment should be overturned and that the person was being deprived of their liberty. The Court of Appeal approved a consent order to that effect but did not give a judgment explaining why Mostyn J had been wrong  (perhaps wrongly thinking that where everyone agreed the Judge was wrong and that he had gone against a clear Supreme Court decision with which he did not agree but was not able to distinguish the instant case from, that it was somewhat plain)



It went back to Mostyn J to authorise or not, the deprivation of liberty. However, he declined and took everyone, including the Court of Appeal to task and said that a consent order without a judgment was not binding on him. And thus did not reach the point of authorising the deprivation, but instead set down a hearing to be conducted by himself as to whether there was a deprivation of liberty at all.

Incredibly bravely (but rightly), the parties appealed THAT, and the Court of Appeal determined it.

[Previous blog on Round 3 of this peculiar litigation is here  ]


So, by way of catch-up here, in this one case, Mostyn J disagreed with the Supreme Court, then when the Court of Appeal disagreed with him, he disagreed with them. And now the Court of Appeal disagree with him again.

In the midst of all of this, are some real people with real problems to resolve, and a lot of taxpayers money being spent.

KW and Others v Rochdale MBC 2015


The Court of Appeal pull no punches whatsoever. In fact I understand that this was very much what it looked like when the Master of the Rolls removed his gloves after the judgment



The Master of the Rolls does not have to go through the metal detectors en route to the Court room

The Master of the Rolls does not have to go through the metal detectors en route to the Court room


But first, the technical part of the appeal – if the Court of Appeal approve a consent order overturning the decision of the original Judge but don’t give a judgment, is the case actually overturned? (I understand that this is actually one of the lesser known and unpopular Zen koans)


The grounds of appeal from the second judgment


  • The principal ground of appeal is that the judge misinterpreted the consent order when he said that the Court of Appeal had not decided that KW was being deprived of her liberty.
  • We accept that (i) nowhere does the order explicitly state that there was a deprivation of liberty; and (ii) the use in para 2 of the order of the words “to the extent that the restrictions in place pursuant to the Care Plan are a deprivation of KW’s liberty, such liberty is hereby authorised” might suggest that the court was not deciding that the restrictions were in fact a deprivation of liberty. But read in their context, that is clearly not the correct interpretation for at least two reasons. First, para 2 must be read in the light of para 1, which governs the whole order. Para 1 states that the appeal is allowed. The remaining paragraphs set out the court’s directions consequential upon the allowing of the appeal. When read together with section 6 of the notice of appeal, the order that the appeal was allowed necessarily involved the court deciding that KW’s care package does involve a deprivation of liberty. The words “to the extent that” etc are perhaps unfortunate, but they cannot detract from what allowing the appeal necessarily entailed. These words were derived from para 11 of the Model Re X Order which had been published on the Court of Protection website and which practitioners had been encouraged to use. We were told by counsel that this form of words is not universally used. We understand that the form of words more often used is along the lines of: “P is deprived of his or her liberty as a result of arrangements in the Care Plan and these are lawful”. This is undoubtedly preferable to the earlier version.
  • Secondly, para 2 must also be read in the light of the consequential orders set out at paras 3 to 5 of the consent order. The reviews there provided for are clearly reviews of the kind contemplated where there is a deprivation of liberty.
  • It follows that the judge was wrong to hold that it had not been decided by this court that KW was being detained by the state within the terms of article 5. The appeal must, therefore, be allowed.


Was the consent order made ultra vires?


  • Was the judge right to say that the Court of Appeal took “a procedurally impermissible route” so that its decision was “ultra vires”? It is important that we comment on this statement in view of the general importance of the point and the fact that the judge’s comments have apparently given rise to considerable degree of public interest. We acknowledge that, despite these comments, the judge did say that the rule of law depends on first instance judges “complying scrupulously with decisions and orders from appellate courts”. And, as we have said, that is what he purported to do.
  • An order of any court is binding until it is set aside or varied. This is consistent with principles of finality and certainty which are necessary for the administration of justice: R (on the application of Lunn) v Governor of Moorland Prison [2006] EWCA Civ 700, [2006] 1 WLR 2870, at [22]; Serious Organised Crime Agency v O’Docherty (also known as Mark Eric Gibbons) and another [2013] EWCA Civ 518 at [69]. Such an order would still be binding even if there were doubt as to the court’s jurisdiction to make the order: M v Home Office [1993] UKHL 5; [1994] 1 AC 377 at 423; Isaacs v Robertson [1985] AC 97 at 101-103. It is futile and, in our view, inappropriate for a judge, who is called upon to give effect to an order of a higher court which is binding on him, to seek to undermine that order by complaining that it was ultra vires or wrong for any other reason.
  • In any event, the judge was wrong to say that the consent order was ultra vires because it was made by a procedurally impermissible route.
  • The issue turns on the true construction of para 6.4 of PD 52A. Rule 52.11 provides that the appeal court will allow an appeal where the decision of the lower court (a) was wrong or (b) was unjust because of a serious procedural or other irregularity in the proceedings of the lower court. It is concerned with the “hearing of appeals” which is done by way of a review or, in certain circumstances, a re-hearing. What is envisaged by rule 52.11 is a hearing which leads to a decision on the merits. To use the language of the first sentence of para 6.4 of the practice direction, this is what an appellate court normally does when allowing an appeal.
  • The use of the word “normally” in this sentence presages a departure from rule 52.11 in specified circumstances. The word “normally” followed by the use of the word “however” in the following sentence makes it clear that what follows specifies the circumstances in which the court may depart from the norm. The second sentence states that the court may set aside or vary the order of the lower court without determining the merits of the appeal, but only if (i) the parties consent and (ii) the court is satisfied that there are good and sufficient reasons for taking this course. That such a decision will be made on paper is clear from the heading to para 6.4 and the words of the third sentence. It is true that the second sentence speaks of setting aside or varying the order under appeal, whereas the first sentence (faithful to rule 52.11) speaks of allowing an appeal. But we do not consider that there is any significance in this difference of language. Rule 52.10 provides inter alia that the appeal court has power to “(2)(a) affirm, set aside or vary any order or judgment made or given by the lower court”. These words are picked up precisely in para 6.4 which sets out the powers that the appeal court has when allowing an appeal.
  • The appeal court, therefore, has a discretion to allow an appeal by consent on the papers without determining the merits at a hearing if it is satisfied that there are good and sufficient reasons for doing so. What are good and sufficient reasons? The answer will depend on the circumstances of the case, but we think that it would be helpful to provide some guidance. If the appeal court is satisfied that (i) the parties’ consent to the allowing of the appeal is based on apparently competent legal advice, and (ii) the parties advance plausible reasons to show that the decision of the lower court was wrong, it is likely to make an order allowing the appeal on the papers and without determining the merits. In such circumstances, it would involve unnecessary cost and delay to require the parties to attend a hearing to persuade the appeal court definitively on the point.
  • At para 14 of his judgment, the judge said that, where a merits based decision has been reached at first instance which all parties agree should be set aside on appeal, para 6.4 requires there to be a hearing and a judgment. He added: “The judge whose decision is being impugned is surely entitled to no less, and there is a plain need to expose error so that later legal confusion does not arise”. We disagree. Para 6.4 does not require a decision on the merits in every case where there has been a decision on the merits in the lower court. There is no reason to restrict in this way the wide discretion conferred by para 6.4 to allow an appeal by consent without a hearing followed by a decision on the merits. The words “good and sufficient reasons” are very wide. Further, we reject the notion that the judge whose decision is under appeal has any entitlement to a decision on the merits. In deciding whether to make a consent order without a decision on the merits, the appeal court is only concerned with the interests of the parties and the public interest. The interests of the judge are irrelevant.
  • We accept, however, that there will be cases where it may be in the interest of the parties or the public interest for the court to make a decision on the merits after a hearing even where the parties agree that the appeal should be allowed. Mostyn J referred to cases in the field of family law. For example, in Bokor-Ingram v Bokor-Ingram [2009] EWCA Civ 27, [2009] 2 FLR 922, the parties by consent asked the court to allow an appeal, set aside the order below and make a revised order. Thorpe LJ said:


“5. A short disposal might have followed but for our concerns that the judgment below had already been reported …..and was causing, or was likely to cause, difficulty for specialist practitioners and judges in this field of ancillary relief.

6. Accordingly, we decided to state shortly why we had reached a preliminary conclusion that the appeal, had it not been compromised, would in any event have been allowed.”


  • The fact that the decision of the lower court in that case was causing difficulty led the appellate court to conclude that there were not “good and sufficient reasons” for departing from the normal procedure of conducting a hearing and giving a decision on the merits.
  • An example from a different area of law is Halliburton Energy Services Inc v Smith International (North Sea) Ltd [2006] [EWCA] Civ 185. The lower court had held that a certain patent was invalid. Following the issue of appeal proceedings, the case was settled. The Court of Appeal was asked to make a consent order for the restoration of the patent to the register without deciding the merits of the appeal. The court decided that it had to hear the merits on the grounds that, for a patent to be restored to the register, what was needed was a decision reversing the order for revocation and showing that the previous decision was wrong. Here too (but for a very different reason), the appellate court considered that a decision on the merits was needed.




But you aren’t here for the technicalities. You want to see what happened with that boxing glove and the horseshoes.



  • Mostyn J’s first judgment did not raise any issue of law. It is true that his criticism of Cheshire West (what he describes in para 20 of the second judgment as his “jurisprudential analysis”) raised a question of law. But this question has been settled by the Supreme Court relatively recently. The judge’s analysis was, and could be, of no legal effect. It was irrelevant. Indeed, he purported to apply Cheshire West to the facts of the case. The basis of the appeal was that he had failed to apply Cheshire West to the facts properly. The public interest in the first judgment has focused on his criticisms of Cheshire West. Unlike Bokor-Ingram, the decision of the lower court in the present case should have caused no difficulty for practitioners or judges in the field. It was a decision on the facts which, with benefit of the advice of counsel and solicitors, the parties agreed was wrong. The Court of Appeal must have taken the view that the parties had advanced plausible reasons for contending that the judge’s decision was wrong, so that there were good and sufficient reasons for allowing the appeal without deciding the merits. In our view, it was clearly right to do so.
  • This litigation has an unfortunate history. The judge has twice made decisions which have been the subject of an appeal to this court. On both occasions, the parties have agreed that the appeal must be allowed. This has led to considerable unnecessary costs to the public purse and unnecessary use of court time. We regret to say that it is the judge’s tenacious adherence to his jurisprudential analysis leading to his conclusion that Cheshire West was wrongly decided that has been at the root of this. He says at para 26 of the second judgment that “the law is now in a state of serious confusion”. Even if Cheshire West is wrong, there is nothing confusing about it.
  • In our view, the judge’s passionate view that the legal analysis of the majority in Cheshire West is wrong is in danger of distorting his approach to these cases. In the light of the unfortunate history, we are of the opinion that the review should be conducted by a different judge, who need not be a high court judge,
  • For the reasons that we have given, this appeal is allowed.



Court proceedings were a shambles


I would agree with the Court of Appeal’s summing up here.

In the case of Re K-L (Children) 2015, the Court of Appeal had to unpick an appeal centred around a judgment of Her Honour Judge Lyon after a finding of fact hearing in care proceedings. There were a raft of allegations to determine, and centrally, some of them involved findings that the father had sexually abused a child.

However a Judge determines those findings, it is vital that everyone knows exactly what was and wasn’t decided.

At the end of the finding of fact proceedings on 23rd April 2015, which had overrun somewhat, the Judge was more than a little exasperated

  1. At 4.40 pm, the judge returned to court and delivered a short judgment. Paragraph 1 of the judge’s judgment was as follows:

    “I am not to be held to anything I now say which is why I have deliberately not given it to you and I am saying it has yet to be perfected because I have not had enough time. Unfortunately your colleagues massively underestimated how much time they needed on their case, which I ended up taking in, and of course we have the police as well so I have not had a full run at this at all today so my apologies. However, as I say what I am going to do is just give a rough indication of what I am doing and how I have set things out in the judgment.”

  2. The judge then recounted what had happened in the course of the trial. In the last four paragraphs of the judgment, the judge set out her conclusions as follows:

    “10. The court heard the next day from the mother, TL, who became very upset as she recalled her discussion with both T and P as to what had happened to them. Then finally the court heard from Mr LE. The court is finding in accordance with the submissions made on behalf of the Local Authority and counsel for the mother, who united in their submissions, with the Local Authority adopting those of the mother. Therefore I am basically going with the submissions made on behalf of the Local Authority and the mother and supported to a considerable degree by the submissions made on behalf of the guardian so I have reproduced all of those. I have also reproduced the submissions made on behalf of Mr E by Mr Heaney but I am finding against him essentially with regard to the abuse of the children.

    11. The issues are set out very clearly in the various submissions and as I say the court is accepting those of the Local Authority supporting the mother and that is the purport of your submissions, was it not, Miss Mallon?

    [Miss Mallon: Yes]

    12. Miss Mallon, in relation to the mother, however, you did raise issues about whether the mother had acted appropriately and so in accordance with the findings sought, and I am just having to leaf back to those, I am finding points 3, 4 and 5 of your findings sought which will be between pages 1 and 2 of the document, I am finding those to be made out again on the basis of the evidence that we heard. Again I am going to have to craft this appropriately to indicate what I am finding there but the First Respondent, TL, failed to protect the children from sustaining physical harm at the hands of LE; that she failed to seek medical attention for P and for T after they had sustained physical harm at the hands of LE and finally that she repeatedly failed to protect the children from witnessing, whether through hearing or seeing, domestic violence. Are you with me, Miss Mallon?

    [Miss Mallon: Yes]

    13. Therefore to indicate again very clearly as far as the schedule of findings sought I am finding that the third respondent, LE, sexually abused T as exemplified by his doing rudies, namely inappropriately touching T’s penis, masturbating the child T, putting curry up his bottom. Also finding that the third respondent, LE, physically abused the children, PL and TK, as exemplified by kicking T on the leg, attempting to strangle T — and so the court does not accept the “play” explanation offered by the father — and punching P on the back which, as was submitted, was a very serious injury to inflict on a child of P’s age with all the attendant concerns that would have arisen.”


Whether or not those findings were right, it is absolutely and totally clear that the Judge had made findings that father had sexually abused the child as alleged, and had physically abused the child including strangling him on one occasion.

It was therefore something of a shock to everyone when the judgment itself was circulated on 8th May 2015 and set out that those findings were NOT proved in relation to sexual abuse, but were proved in relation to the physical abuse allegations.


Understandably, the parties sought clarification from the Judge


What the judge said in judgment 3 was this:

“I did go into court without any papers in front of me and stated that I agreed with the case put forward by the local authority with which, in very large part, I did except, one being “except in relation to the allegation of sexual abuse”. I did not make this clear, as essentially this was an ‘off the cuff indication’ and I did not make things clear at all, so it did appear as though I was making findings agreeing with each of the allegations made in the Schedule, whereas whilst I was agreeing with all the other findings sought as to physical and emotional abuse I did not agree with the finding of sexual abuse and I have now set the reasons for this out which given the difficulties we had over the ABE Interviews of T, is perhaps more to have been expected and I can only apologise fully for the rushed way in which I handled things on the final day of the hearing and thus stated my finding as to these sexual abuse allegations wrong.”

The legal issues for the case are :- can a Judge change his or her mind about a judgment, and when does that power end?  And was the Judge wrong in changing her mind in this particular case?

As long-term readers may recall, this issue has come up before. And the Supreme Court resolved it.

A Judge CAN change their mind about a judgment even after delivering it even after the order arising frtom the judgment is sealed, but they must provide reasons for doing so.

  1. The Supreme Court held that justice might require the revisiting of a decision for no more reason that the judge had had a carefully considered change of mind, since every case could depend upon the particular circumstances. The Supreme Court held that the power of the judge to change his or her mind had to be exercised judicially and not capriciously.
  2. The leading judgment was given by Lady Hale. At paragraph 30, Lady Hale said this:

    “As the court pointed out in Re Harrison’s Share Under a Settlement [1955] Ch 260, 284, the discretion must be exercised “judicially and not capriciously”. This may entail offering the parties the opportunity of addressing the judge on whether she should or should not change her decision. The longer the interval between the two decisions the more likely it is that it would not be fair to do otherwise. In this particular case, however, there had been the usual mass of documentary material, the long drawn-out process of hearing the oral evidence, and very full written submissions after the evidence was completed. It is difficult to see what any further submissions could have done, other than to re-iterate what had already been said.”

  3. Lady Hale went on to discuss what would be the position if the order made by the judge after the preliminary judgment had been sealed. Lady Hale held that that would have made no difference. The judge would still have been entitled to have a change of mind if there was good reason to do so.
  4. At paragraph 46, Lady Hale said this:

    As Peter Gibson LJ pointed out in Robinson v Fernsby [2004] WTLR 257, para 120, judicial tergiversation is not to be encouraged. On the other hand, it takes courage and intellectual honesty to admit one’s mistakes. The best safeguard against having to do so is a fully and properly reasoned judgment in the first place. A properly reasoned judgment in this case would have addressed the matters raised in counsel’s email of the 16 December 2011. It would have identified the opportunities of each parent to inflict each of the injuries by reference to the medical evidence about the nature, manner of infliction and timing of those injuries and to the parents’ and other evidence about their movements during the relevant periods. It would have addressed the credibility of the evidence given by each parent, having regard in this case to the problems presented by the mother’s mental illness. Had she done this, the judge might well have been able to explain why it was that she concluded that it was the father who had more than once snapped under the tension. But she did not do so, and it is a fair inference that it was the task of properly responding to the questions raised by counsel for the father which caused her to reconsider her decision.”

In passing, I’ll remark that “tergiversation” is not a word that I’ve ever enountered in polite conversation, and I’d even be slightly surprised if it cropped up in an email from long-time reader Martin Downs who does occasionally seek to expand my vocabulary.

It has two meanings :-

1. Evasion of straightforward action or clear cut statement

2. Desertion of a cause, position, party or faith


As luck would have it, both apply here. Keen-eyed readers will have spotted that Her Honour Judge Lyon was not claiming here that having thought further about her judgment, she had reconsidered her position and changed her views, she was just flatly denying that she’d ever found that father HAD perpetrated the sexual abuse.

So it was a bit different to the Supreme Court case, in which the Judge freely admitted that having decided X she later came to the conclusion that Y was the only proper decision to make. This was more an Orwellian “we have always been at war with Eurasia”


So, was Judge Lyon right in the assertion made in the third judgment?

  1. What the judge said in judgment 3 was this:

    “I did go into court without any papers in front of me and stated that I agreed with the case put forward by the local authority with which, in very large part, I did except, one being “except in relation to the allegation of sexual abuse”. I did not make this clear, as essentially this was an ‘off the cuff indication’ and I did not make things clear at all, so it did appear as though I was making findings agreeing with each of the allegations made in the Schedule, whereas whilst I was agreeing with all the other findings sought as to physical and emotional abuse I did not agree with the finding of sexual abuse and I have now set the reasons for this out which given the difficulties we had over the ABE Interviews of T, is perhaps more to have been expected and I can only apologise fully for the rushed way in which I handled things on the final day of the hearing and thus stated my finding as to these sexual abuse allegations wrong.”

  2. That explanation simply does not stand up to examination. Paragraphs 10 and 13 of judgment 1 cannot possibly be explained away as a mere slip of the tongue or misstatement on the part of the judge. It was simply not the case that the judge was saying one thing and meaning another.
  3. At paragraph 13 of judgment 1, the judge said:

    “Therefore to indicate again very clearly as far as the schedule of findings sought I am finding that the third respondent, [the father], sexually abused T as exemplified by his doing rudies, namely inappropriately touching T’s penis, masturbating the child T, putting curry up his bottom.”

  4. The judge was clearly saying what she meant and clearly stating what her findings then were. Therefore, as I say, the explanation for the changed decision given in judgment 3 does not stand up to scrutiny.


Given that the Judge HAD changed her position, the failure to provide a compelling explanation of what led to that was obviously going to fall short of the high test of the Supreme Court to change a judgment in a safe way.


  1. In my view, the history of this case is such that no one can have any confidence in the judge’s findings contained in judgment 3.
  2. In my view, the three judgments and the April order must be set aside. The case must be remitted to be reheard on all issues at the Liverpool Family Court.
  3. Finally, I must say this. The proceedings in the court below were a shambles. That is not the fault of any counsel in the case, nor is it the fault of the deputy judge. It is the four children at the centre of this case who suffer as a result of what has happened. Also, both the mother and the father have suffered much needless stress as a result of the course that this case has taken.
  4. On top of that, huge expense has been incurred, which no doubt will be borne by the public purse, as a result of matters which have gone wrong in this case.
  5. If my Lords agree, the judgments of this court will be referred to the President of the Family Division, so that he can consider whether any steps need to be taken to prevent such a situation arising again.



The case therefore will have to be re-heard.

Ryder LJ agreed, whilst defending that this was clearly out of character for Liverpool  Family Court.  [hmmm. There have been some decidedly peculiar appeals coming out of Liverpool in 2015 though]. And of course adds that there should never have been a finding of fact hearing in this case anyway…


  1. My Lord Jackson LJ describes a profoundly worrying sequence of events from the perspective of parties to children proceedings, including the children themselves.
  2. I am persuaded that the judge did not make a mistake on 23 April 2015. She clearly intended to make findings of sexual abuse against the father. Thereafter, she changed her mind, but did not accept that she had done so and has, as a consequence, not reasoned that change of mind.
  3. She misremembered what she had said on 23 April 2015 and subsequently recollected only an accidental use of language. That is sadly not an accurate memory, with the consequences described by my Lord, Jackson LJ.
  4. This is not, in my judgment, a circumstance described by the Supreme Court in Re: L. That is where the change of mind can stand. In this case the change of mind was not made judicially.
  5. I say in parentheses that this was a public law children’s application and I can see no basis for a split hearing upon the facts.
  6. Be that as it may, I am very concerned about the other aspects of the judge’s conduct of the determination described by my Lord, not least because it should be understood that this is not the way family proceedings are normally conducted before the Family Court in Liverpool, a matter impressed upon us by all counsel.

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.


Get every new post delivered to your Inbox.

Join 3,989 other followers