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Reason to believe – what are the odds???

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

Section 48 provides:

“Interim orders and directions

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

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

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

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

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

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

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

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

A Local Authority v LD and Another 2023

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

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

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

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

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

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

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

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

Leave to oppose adoption test – the new test

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

So it was with some trepidation that I read this case

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

A few big things arising from it :-

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

Transcripts of judgment in placement order proceedings

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

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

Second is the refined test

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

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

More detail on the two limbs later

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

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

I also reject the suggestion that the change must be unexpected or unforeseen. This proposition was advanced in obiter dicta in the decisions in Prospective Adopters v SA [2015] EWHC 327 (Fam) at [16-19] and in Prospective Adopters v London Borough of Tower Hamlets [2020] EWFC 26 at [5]. In the earlier case, Mostyn J stated:
“Obviously the words “a change in circumstances” are not intended to be read literally. As soon as the placement order is made circumstances will change if only by the effluxion of time. What Parliament clearly contemplated was proof of an unexpected change in the basic facts and expectations on which the court relied when it made the placement order.”
While in the later case he added:

“Obviously, changes that were clearly either foreseen or which were foreseeable at the time of the original order cannot qualify. Otherwise, the provision would be just another variation power.”
This approach finds no support in Re P, something that Mostyn J addressed in Re SA at [28]:
“Re P did not however address the question which I have identified namely whether the change in circumstances should be unexpected. In my judgment, in the absence of a specific reference by Parliament to actually foreseen changes (in contrast to section 14(2)(a) of the Matrimonial Proceedings and Property Act 1970) the changes in question must be unexpected and must exclusively attach to the basic facts and expectations which underpinned the initial order.”
There are several reasons for rejecting this approach:
(1) The language of the sub-section is simple and there is no reason to gloss it.
(2) In Re SA at [14] Mostyn J said that he intended to look at the provisions from first principles, but there was no occasion for him to do that. The issue of whether change must be unexpected, unforeseen or unforeseeable (and the concepts are not the same) did not arise in Re SA or in Tower Hamlets. The law had been recently and authoritatively stated in this court’s decisions in Re P and in Re B-S.

(3) The proposition was inspired by an analysis of statutory provisions relating to the court’s power to vary maintenance agreements: Re SA at [17-19]. Those provisions are irrelevant to legislation about the adoption of children. They concern changes of circumstance that occur following bargains made between the parties. The Act concerns placement orders imposed by the court for reasons of child welfare. The proper approach to construction will in each case be conditioned by the very different statutory purposes of these unrelated pieces of legislation.
(4) In the absence of a relevant contrary indication, the only conclusion that can reliably be drawn from the fact that a statute does not say whether a change of circumstances is foreseen or unforeseen is that it can be either. There is also a false logic to the argument that, because Parliament has amended one statute to provide that a change of circumstances may include a foreseen change of circumstances, every statute that does not do the same must mean the opposite.
(5) In the context of the Act, there is no reason whatever to raise the bar by burdening parents with the additional obligation of showing that the changes they rely upon were unexpected or, put another way, to deprive them of the opportunity to rely on changes that were foreseen or foreseeable. As Lord Justice Holroyde observed during argument, that would be very unfair. Expectations are not binary, foresight cannot be calibrated, and there may be a number of future possibilities of varying degrees of
likelihood. For example, a parent may say at the placement order hearing that he will achieve sobriety or become drug-free, but the court may not be convinced. If, by the time of the adoption proceedings, he is sober, that cannot sensibly be regarded either as unexpected, unforeseen or unforeseeable simply because it was uncertain or because the alternative was more likely. Why should he be worse off for having achieved something the court foresaw as possible but did not consider probable?
(6) To introduce a requirement relating to expectations would be unworkable and add needless complication to what is no more than a threshold test. When it makes a placement order, the court reaches a conclusion about the need for adoption. It cannot state every expectation it may have for the future, and it cannot know when the adoption application will be made. Trying to decide what was or was not expected, foreseen or foreseeable could only distract from the simple question of whether there has been a change between the facts that existed then and the facts that exist now.
For these reasons, the proposition in Re SA is wrong and should not be followed

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

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

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

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

From this, it can be seen that the prospect of success in opposing adoption if leave is granted is an important element to which the court must have regard, but it is not a test in itself, still less an exclusive one. It is helpful as a reminder that the question to be answered is whether or not there should be an opposed adoption hearing. However, the expressions ‘more than just fanciful’ and ‘solid’ are not true opposites, in that something that is not fanciful may fall short of being solid. This may lead to the court being pressed with different formulations and can cause inconsistency if the court treats prospects of success as the only benchmark.
I also note that there will be cases, of which the present one is an example, where the distinction between opposition to an adoption order and rehabilitation to a parent collapses. That situation will arise, and not uncommonly, where adoption and rehabilitation are the only possible outcomes.
Drawing matters together, I suggest that the essential question for the court at the second stage is this: Taking account of all the circumstances and giving paramount consideration to this child’s lifelong welfare, should the court revisit the plan for adoption that it approved when making the placement order? By asking this question, the court ensures that it focuses firmly on the individual child’s welfare in the short, medium and long term with reference to every relevant factor, including the nature and degree of the change that it has found, the parent’s prospects of success, and the impact on the child of contested proceedings.
In framing the essential question in this way, I do not overlook the fact the parent is seeking leave to oppose the making of this specific adoption order. However, in the great majority of cases, the basis of the proposed opposition is that the child should not be adopted at all. Much less frequently, the opposition may involve an objection to the specific identified adopters, and in those cases, the factors to be taken into account when answering the question will need to be adapted accordingly.

Finally, the application for leave to oppose must be decided on proper evidence but experience confirms that oral evidence is not usually necessary. The court will want to take a broad view of the evidence before it, as befits a decision at the leave stage. There has been a very recent and welcome change to the availability of legal aid for parents making applications to oppose adoption: see Regulation 5 of The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023. This should enhance the fairness of the process and assist the parties and the court to focus on the issues, but at the same time the court must ensure that hearings and timetables are not unduly lengthened.

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

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

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

Reopening findings of fact

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

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

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

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

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

In this particular case

Re J (Children: Reopening Findings of Fact) 2023

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

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

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

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

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

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

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

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

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

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

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

L v Nottinghamshire County Council

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

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

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

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

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

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

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

Control of mobile phone

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

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

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

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

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

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

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

Here is what MacDonald J said about the submissions:-

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

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

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

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

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

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

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

The Court was taken to a decision of the ECHR

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

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

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

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

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

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

Unconditional consent

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

Re C (Surrogacy : Consent) 2023

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

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

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

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

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

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

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

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

The hearing took place between 10.08 am and 10.30 am. We have been provided with a transcript and have also listened to the recording. It is necessary to set out some parts of the transcript to fairly understand the course of the hearing, with editing to maintain anonymity.
The effective part of the hearing started with an introduction from the Respondents’ counsel. She explained that the parties had agreed the terms of a child arrangements order, and although the court could not make such an order on its own initiative in the parental order proceedings, it could grant permission for an application to be made under the Children Act, and then make an order. However, she noted the requirements of section 54(6) and informed the judge that Ms A would be saying that her consent to a parental order was conditional on the making of a child arrangements order. Counsel nonetheless invited the court to consider making a parental order on the basis of Ms A giving her consent, with a child arrangements order being made “as a separate matter”.
After some consideration of the Children Act provisions and the proposed contact arrangements, the judge then addressed the Appellant:
“THE JUDGE: Ms A, Ms Maxwell has outlined the position to me and, as I think you probably know, there are a number of matters in the statute, section 54, that I have to be satisfied about and one of those Ms Maxwell has rightly reminded me is that you, freely and with full understanding of what is involved, agree unconditionally to the making of the order. If you only agree to the making of the order if there is a child arrangements’ order, then that would obviously not be freely and unconditionally given consent.
The other matters in the statute are all dealt with amongst the papers in particular and also in Mrs Chapman’s report, so I do not think any of those cause me a difficulty in making the order. The only one that does is the consent because, although I understand there is an agreement that there will be contact, and I will be asked to make a child arrangements order, I cannot do that as a condition of making the parental order. I can only make the parental order if you freely consent and without conditions, so, first of all, does that make sense to you, what I have just said? I know sometimes for a non-lawyer it gets a bit convoluted. You are nodding so that is helpful, thank you.
Then, I suppose, first of all, is there anything you want to ask me and then is there anything you want to say in response, as it were?
The Appellant then replied in these terms:
MS A: Thank you, your Honour, there is nothing I want to ask you but in terms of the condition, the unconditional consent, I think I would be lying if I said that I unconditionally consent to it because it is a– I would like to see C and so I am making the parental– the consent on that I see C. If I– I don’t unconditionally give it because I am fearful that I won’t have time to spend time with C and so that’s why I can’t quite unconditionally consent.
However, I do believe it is in all of our interests to move on with our lives and to kind of start rebuilding our relationship again and I do feel that having a child arrangements order is best for all of us along with a parental order being made, but I couldn’t lie and say that I do give my consent unconditionally. If that helps, your Honour.”
The judge responded at some length, starting in this way:

“THE JUDGE: Well, it is very clear and I fully understand what you are saying. It does not help me– and this is not a criticism of you, it does not help me get over the legal obstacle. Let me look at it in a different way and, please, let me be very clear, I am not trying to put any pressure on you at all because that would be wrong, because the whole point is that I make an order only if everybody consents… I cannot make a child arrangements order in this particular proceedings probably for very good reason, because if it was part of the issues, then it probably would not be freely consented to…
She then explained that she would be content to hear an oral application for a child arrangements order, saying:
“So in terms of trying to reassure you, I am told that application would not be opposed. You could make it orally once I have concluded the making of a parental order but I cannot make the parental order unless you do consent to it… — and if you do not consent, and again I am not saying this in any way to put pressure on you– sometimes it may sound a bit like that but of course if you do not consent, you will all be in this limbo moving forward until somebody attempts to make a different application which obviously the applicants may do but I cannot adjudicate on that in advance.
So we are in a slightly difficult position… I think you consent to the concept that the applicants are, as it were, C’s parents and that is recognised in law. I think the issue is one of concern about the way forward for contact, so– but unless I have you unconditionally consenting I think we cannot move on from this limbo, so I am not– try to think about what I have just said for a minute and while you are thinking about that, I am going to go to Mrs Chapman to see if she would like to add or say anything because I think apart from this difficulty she feels that the criteria are met but I just want to check with her.
The judge then turned to Mrs Chapman, who confirmed that the Appellant was happy with the parenting C was receiving but that she did not want to consent because she wanted a legal right to spend time with C and was scared of having no contact.
The judge then returned to the Appellant for these important exchanges:
THE JUDGE: … so, Ms A, we are in the position that as a matter of law and also considering C’s welfare, I think all of us agree that a parental order is the right thing for him. Everybody agrees that it is right for him to see you and to know you but it is just coming back to the original question, so having heard what has been said, what is your thinking now?
MS A: Then the only way forward is for me to give my unconditional consent, your Honour.
THE JUDGE: I am sorry?
MS A: I will provide my unconditional consent.
THE JUDGE: And you are quite sure about that?
MS A: I don’t see that there is any other way for us to move forward without it.
THE JUDGE: Well, I think that was the right decision and I think that is extremely helpful for everybody, for all of you and perhaps most importantly of course for C. I am very grateful to you and I expect the applicants are as well. So what I will do is I will make the parental order… Then in terms of a child arrangements’ order, now that the parental order has been made, everybody agrees that it is… right for Ms A to have contact and under the Children Act you can make an application or I can treat an oral application as having been made and given the amount of information I have about all of you, I do not need you to go through the normal process of getting enquiries from Cafcass because obviously I already have that information from Mrs Chapman, so I would be content to make a child arrangements’ order and Ms Maxwell has said that the agreed way forward is the every six weeks– I appreciate there will be a little bit more detail to this but every six weeks for a day, holidays and Christmas and– so that is her position. So from your side, Ms A, is that agreed by you as the way forward?
MS A: It is, yes.
THE JUDGE: In that case, I had better go back to Mrs Chapman in case from a welfare point of view she has any concerns. Mrs Chapman, from a welfare point of view for C would you be happy to endorse that order?
MRS CHAPMAN: Yes, I am happy to endorse that order.
THE JUDGE: So in that case that order will then follow, so we have a parental order and there will then be a child arrangements’ order. I think then I hope very much that all of you can relax a little after what has been quite a difficult time and move forward. C is going to be one soon and I think it would be very nice to move forward knowing all the decisions have been made, so if I go back to Ms Maxwell; Ms Maxwell, is there anything else you want to add?
MS MAXWELL: Your Honour, no, thank you very much.
THE JUDGE: Okay. Ms A, is there anything else you want to add?
MS A: No, thank you.
THE JUDGE: Well, thank you very much, and, Mrs Chapman, is there anything else you want to add?
MRS CHAPMAN: No, I have got nothing more to add, thank you.
THE JUDGE: Well, thank you very much for your help and my thanks to everybody for their help because I know it can be quite stressful in a situation like this, so I am very grateful to everybody for having achieved the right way forward for C…
Okay, thank you all very much for attending. I know it has been difficult for everybody and I can see for Ms A in particular, so I will thank you all for attending and I will let you all go now. Thank you very much everybody.
MS A: Thank you, bye.

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

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

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

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

The Court of Appeal set out their decision:-

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

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

The final question is what order should be made in respect of the underlying parental order application. The choice is between dismissing it or remitting it. I would look favourably on remitting if a parental order could possibly result from the parties being given another opportunity to take stock. I have noted that the judge might have adjourned the hearing for that purpose, and Ms Bazley has accepted that this option was open to her. But that was in the middle of 2021 and we are now in early 2023. In the meantime, relationships between the parties have deteriorated further, as the ongoing Children Act proceedings show. Even with the benefit of their current representation, the parties have been unable to devise a solution of their own. The Appellant’s position is that she will not consent to a parental order.
In these circumstances, I am driven to conclude that to remit the parental order application would perpetuate the process that led to the making of the original order. I would therefore allow the appeal and dismiss the application for a parental order. That C should be brought up by the Respondents and have contact with the Appellant was intended by all. It remains agreed by all that C will continue to be brought up by the Respondents, but the appropriate legal mechanism for that, and the question of contact with the Appellant are matters that are beyond the scope of this appeal.

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

Stay with me ! Stay applications, some further guidance

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

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

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

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

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

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

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

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

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

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

The family Court learning from criminal Courts

Trigger warning – this post contains discussion of the law around rape – I will not be going into any detail about allegations and confine the post to legal principles, but I’m aware that both the subject and the whole issue of how rape has been dealt with by the Courts may be triggering for some.

Over the last two years, the family Court has been rather tying itself up in knots about the interelationship between the criminal law about rape and how such cases are dealt with and how allegations of rape are dealt with in the family Court.

I’d thought that Re HN had largely resolved this, with this guidance

In Re H-N, the Court of Appeal was addressed at length by a wider range of parties and interveners than were present in these appeals on whether the family court should analyse factual issues within the criminal law framework. At [71], the Court of Appeal reaffirmed the general principle that:
“The Family Court should be concerned to determine how the parties behaved and what they did with respect to each other and their children, rather than whether that behaviour does, or does not, come within the strict definition of “rape”, “murder”, “manslaughter” or other serious crimes.”
At [65] of Re H-N, the President emphasised that there was a clear distinction between (a) family judges needing to have a sound understanding of the potential psychological impact that serious sexual assault may have on a victim’s behaviour, both during and after the event, and in the way that they may give their evidence and present in court and (b) family judges avoiding being drawn into an analysis of factual evidence based on criminal law principles and concepts. However, issues concerned with process in the family court such as the conduct of the hearing and the scope of cross examination could potentially draw upon good practice in the criminal court [74]:
“The distinction between a court having an understanding of likely behaviour in certain highly abusive settings and the tightly structured requirements of the criminal law will not, of course, be clear-cut. That is particularly so when the judge in the Family Court must conduct their own analysis of issues such as consent, and must do so in the context of a fair hearing. In this regard, the procedural manner in which the hearing is conducted and, in particular, the scope of cross examination of an alleged victim as to their sexual history, past relationships or medical history, justify consideration separately from the general prohibition in determining the substantive allegation. Nothing that is said in Re R, or endorsed in this judgement, should inhibit further consideration of such procedural matters. They are beyond the scope of this judgement and are more properly to be considered elsewhere.”

But Knowles J was asked in this case to give some further guidance

Re A and Another v B and Others 2022

These were the issues the High Court was asked to give a view on :-

A) Whether the family court should apply a consistent definition of (i) rape, (ii) sexual assault or (iii) consent, making clear the difference between consent and submission;

B) Whether the failure to have a consistent approach to these issues was in breach of the Article 6, 8 and 14 rights of the Appellant mothers;

C) Whether the definitions of rape, sexual assault and consent used in the criminal justice system should be either a starting or finishing point for judges in the family court;

D) What the approach of the family court should be to a complainant’s sexual history when determining allegations of rape or sexual assault; and

E) Whether, when determining allegations of rape and/or sexual assault, judges in the family court should give themselves a warning about rape myths. Generally, such myths concern themselves with the behaviour or experiences of a complainant.

The Court addressed A) and C) together

23. In my view, the correct starting point is that the family court must not import criminal definitions as an aid to fact-finding. Its focus, as Re R and Re H-N made clear, is to determine how the parents of a child behaved towards each other so as to be able properly to assess risk and determine the welfare issues in each case. I note that Parliament recently passed the Domestic Abuse Act 2021 and, in so doing, expressly replicated in the family court some provisions applicable in the criminal courts, for example, in relation to cross-examination by litigants in person. However, Parliament declined to legislate for a framework in the family court within which to determine allegations of rape and sexual assault: it was not invited to do so during the passage of the Act. In those circumstances, it is difficult to conceive that this court might now attempt to do so.
At first instance, the family court determines allegations of rape and sexual assault without a legislative definition or framework. That is consistent with the purpose of a fact-finding exercise in family proceedings, which is to determine only such factual issues as are necessary to assess risk and to illuminate the welfare issues. That approach in private law proceedings is consistent with the approach in public law proceedings in which the family court conducts fact-finding in circumstances where, for example, a parent is alleged to have caused the death of a child, or where a parent is alleged to have inflicted injury on a child.
The Appellants placed reliance on examples of variable approaches taken by first instance judges sitting in the family court to the factual determination of allegations of rape or sexual assault. It is unnecessary for me to identify the judgments in issue since the relevance of those decisions was not the characterisation of behaviour by reference to concepts of consent or submission to sexual intercourse but rather that the court had accurately determined narrative findings which could inform the subsequent risk and welfare analysis. In that regard, I am very clear that the comments of the Court of Appeal at [71] in Re H-N are crucial in underscoring the clear distinction between the family and the criminal court, namely that:
“Behaviour which falls short of establishing “rape”, for example, may nevertheless be profoundly abusive and should certainly not be ignored or met with a finding akin to “not guilty” in the family context. For example, in the context of the Family Court considering whether there has been a pattern of abusive behaviour, the borderline as between “consent” and “submission” may be less significant than it would be in the criminal trial of an allegation of rape or sexual assault”.

It is my firm view that a focus on seeking to characterise or establish behaviour as meeting a particular definition runs the risk of the court becoming “unnecessarily bogged down in legal technicality” (see [29] of the decision of Cobb J in F v M (Appeal: Finding of Fact) [2019] EWHC 3177 (Fam) and [66] of Re R in the Court of Appeal). Applying criminal definitions narrows the court’s focus inappropriately away from the wider consideration of family relationships at play in a fact-finding hearing. In Re R, albeit in the context of findings of “murder” or “manslaughter”, McFarlane LJ identified at [62] the scope and purpose of a fact-finding hearing in the family court as follows:
“The focus and purpose of a fact-finding investigation in the context of a case concerning the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a Criminal Court. The latter is concerned with the culpability and, if guilty, punishment for a specific criminal offence, whereas the former involves the determination of facts, across a wide canvas, relating to past events in order to evaluate which of a range of options for the future care of a child best meets the requirements of his or her welfare…
… In family proceedings, the outcome of a fact-finding hearing will normally be a narrative account of what the court has determined on the balance of probabilities) has happened in the lives of a number of people and, often, over a significant period of time. The primary purpose of the family process is to determine, as best that may be done, what has gone on in the past, so that that knowledge the ultimate welfare evaluation where the court will choose which option is best for a child with the court’s eyes open to such risks as the factual determination may have established”.
Thus, a family judge must consider a “wide canvas” and scrutinise the family relationships – whether of adult to adult or adult to child – over a period of time in order to arrive at a factual determination relevant to both risk and welfare. Whilst I recognise the effort which Mr Metzer KC and Dr Proudman have invested in their framework for determining allegations of rape and sexual assault/abuse, that framework is too narrowly focused on the specifics of whether a sexual relationship is “willing” or not. In essence, it substitutes the word “willing” for “consent” and would be as prescriptive as applying the concepts used in the criminal courts. It is, in my view, too narrow a prism through which to view and investigate the true nature of an adult relationship.

The danger of adopting too narrow a focus on the sexual relationship between two adults was evident in the decision of the Court of Appeal in K v K [2022] EWCA Civ 468 where, amongst other matters, the Court of Appeal was critical of a family judge for failing to stand back and take account of the whole of the evidence before him. In [61], the Court of Appeal stated this:
“In this case, however, by failing to step back and take into account the whole of the evidence before him, the judge placed unjustifiable weight on the issue of whether the mother had had a conversation with the father about her unhappiness at his initiating sex when she was asleep. He elevated that issue into the determinative one, saying that if it were proved, the allegations would themselves be made out. The judge failed to bring the various points of challenge made by the father into his evaluation. Those failures meant that there cannot be said to have been a fair consideration of these important allegations from the father’s perspective. At no stage did the judge step back and consider the mother’s credibility in the round, bringing into account his findings that the mother had put forward false allegations of reporting to Dr C, of financial control, and (also) of isolation from her family when in fact the family had lived with her parents between 2004 and 2012.”
K v K is also of importance because it emphasised yet again what ought to be the focus of a fact-finding exercise in children cases where there are allegations of domestic abuse, namely whether the adult relationship was characterised by coercion and/or control. In [51] of Re H-N, the Court of Appeal was at pains to emphasise that “consideration of whether the evidence establishes an abusive pattern of coercive and/or controlling behaviour is likely to be the primary question in many cases where there is an allegation of domestic abuse, irrespective of whether there are other more specific factual allegations to be determined”. Barely a year after Re H-N was determined, K v K sought to clarify a perception that it was a requirement for a family judge to determine each and every allegation of domestic abuse during a fact-finding exercise. In robust terms, the Court of Appeal stated this was not the case and that a family court should determine “only those factual matters which are likely to be relevant to deciding whether to make a child arrangements order and, if so, on what terms” [67]. That steer from the Court of Appeal underscores my view that as wide a canvas should be brought to the determination of specific allegations of sexual abuse as is brought to any overarching allegations of coercive and controlling behaviour.
As to any criticism of PD12J for a failure to contain a framework to assist in determining specific allegations of sexual abuse, that is, in my view, misplaced. PD12J sets out a specific procedural framework for managing and determining allegations of domestic abuse within private law children proceedings. It includes definitions of the sorts of behaviour which constitute domestic abuse and general principles by which the court should be guided but, rightly, does not contain a detailed framework to assist the family court either in evaluating evidence or in determining what might constitute domestic abuse in an individual case. As I have already indicated, the inclusion of the type of framework advocated for by Mr Metzer KC would inappropriately narrow the court’s focus and run the risk of becoming a tick box exercise rather than a holistic evaluation of the evidence in a particular case.
I also acknowledge that there are examples of the family court analysing evidence by reference to principles established in the criminal court. Thus, the Lucas direction with respect to lies (R v Lucas (1981) QB 720) is firmly established as a principle in the family court and, when determining allegations as to whether an injury is inflicted, the family court not infrequently relies upon the guidance in R v Henderson and Others [2010] EWCA Crim 1219 and R v Cannings [2004] 2 Crim Ap Reports 63, namely that the court should resist the temptation to believe that it is always possible to identify the cause of injury to a child. Finally, in F v M [2021] EWFC 4, Hayden J had regard to s 76 of the Serious Crime Act 2015 when considering allegations of coercive and controlling behaviour. The first two examples do not concern definitions of criminal concepts or frameworks for establishing an offence. As Miss Fottrell KC submitted and I accept, these relate to the broader task of evaluating evidence more generally. Although in F v M, Hayden J considered the substantive framework for the offence of coercive and controlling behaviour, he analysed such behaviour by reference to the definitions contained in the FPR, specifically disapproving of an overly formulaic analysis which might tend “to obfuscate rather than illuminate” the nature of such behaviour within family proceedings (see [108]).
A recent example of the family court’s approach to allegations of sexual abuse within private law children proceedings is the case of Re B-B (Domestic Abuse: Fact Finding) [2022] EWHC 108 (Fam). This judgment followed a re-hearing of allegations of domestic abuse following the Court of Appeal’s decision to allow an appeal against the original first instance decision (see Re H-N at [78]-[115]).

Thus, for the reasons set out above, I reject the need for the family court to apply consistent definitions of rape, sexual assault, and consent. I also hold that the definitions of rape, sexual assault, and consent used in the criminal justice system should have no place in the family court.

The Court considered the Article 6, 8 and 14 rights point B) at paras 33 and 43 of the judgment and concluded that there was no basis for concluding that the approach of the family Courts in relation to allegations of rape or sexual assaults was a breach of those rights.

In relation to D) – guidance about introduction of evidence of sexual history, the Court was in agreement that some guidance would be beneficial – Practice Direction 12 J did not provide specific guidance on these matters.

Having reflected on the invitation to give some guidance on this issue, I do so mindful of the comments in [74] of Re H-N which did not inhibit further judicial consideration of procedural matters such as the scope of cross-examination of an alleged victim as to their sexual history and past relationships. The framework I offer for determining these issues is firmly grounded in the established approach to evidence in the family court.
My starting point is that the established approach to evidence in the family court can accommodate circumstances in which a parent, either making or facing allegations of sexual abuse, seeks to adduce evidence of the other person’s sexual history, or their own sexual history or their shared sexual history. To summarise, this involves the following process:
(a) An assessment of the relevance of the evidence for which permission is sought to be adduced, having regard to the need for the court to consider the “wide canvas” of evidence;

(b) Thereafter, where objection is made to such evidence being adduced, a balancing exercise as to the competing interests and Convention rights involved;

(c) At all times, consideration of the breadth of the court’s powers to control the manner in which evidence is to be placed before it.

Going into more detail as the process, the High Court said this:-

When considering these matters, the first step must be to consider the admissibility of the evidence in question. Admissibility is determined by relevance and the question of relevance is one of fact, degree, and proportionality (see [23] of Dunn v Durham County Council [2013] EWCA Civ 1654).
When considering the question of relevance and evaluating the weight to be afforded to evidence which crosses that threshold, the family court applies well established principles, many of which were developed in the context of public law proceedings, but which are equally applicable to private law proceedings:
(a) The court must consider the “wide canvas” of evidence.
(b) Evidence cannot be evaluated and assessed in separate compartments but must be considered in its totality. The court must consider each piece of evidence in the context of all the other evidence (see [33] of Re T [2004] EWCA Civ 558 per Butler-Sloss P).
(c) The decision on whether the facts in issue have been proved to the requisite standard must be based on all the available evidence and falls to be assessed against the wider context of social, emotional, ethical, and moral factors (see [44] of A County Council v A Mother, A Father, and X, Y and Z [2005] 2 FLR 129).
(d) The assessment of credibility generally involves more than mere demeanour, the latter being mostly concerned with whether the witness appears to be telling the truth as s/he believes it to be. Memory becomes fainter with every day that passes and the imagination becomes correspondingly more active. Thus, contemporary documents are always of the utmost importance (see [29]-[30] of A County Council v M and F [2012] 2 FLR 939).
The second step, where a party objects to the admission of otherwise relevant evidence, is to undertake a balancing exercise. Though determined in the context of an application for disclosure against the local authority, the approach articulated by Maurice Kay LJ at [23] in Dunn v Durham County Council is the correct one. It was followed by MacDonald J in R v Secretary of State for the Home Department (Disclosure of Asylum Documents) [2019] EWHC 3147 (Fam). I observe that the Court of Appeal in Secretary of State for the Home Department and G v RH [2020] EWCA Civ 1001 at [52]-[54] endorsed the approach to disclosure taken by MacDonald J and confirmed that it had application to a wide range of documents where disclosure was sought in family proceedings.
The approach in Dunn v Durham County Council is as follows [23]:
“What does that approach require? First, obligations in relation to disclosure and inspection arise only when the relevance test is satisfied. Relevance can include “train of inquiry” points which are not merely fishing expeditions. This is a matter of fact, degree and proportionality. Secondly, if the relevance test is satisfied it is for the party or person in possession of the document or who would be adversely affected by its disclosure or inspection to assert exemption from disclosure or inspection. Thirdly, any ensuing dispute falls to be determined. We determined ultimately by a balancing exercise, having regard to the fair trial rights of the party
seeking disclosure or inspection and the privacy or confidentiality rights of the other party and any person whose rights may require protection. It will generally involve a consideration of competing ECHR rights. Fourthly, the denial of disclosure or inspection is limited to circumstances where such denial is strictly necessary. Fifthly, in some cases the balance may need to be struck by a limited or restricted order which respects a protected interest by such things as redaction, confidentiality rings, anonymity in the proceedings or such other order. Again, the limitation or restriction must satisfy the test of strict necessity.”

53. Insofar as an application might be made by an alleged perpetrator of sexual abuse to adduce evidence of a complainant’s sexual history with another individual, I find it difficult to envisage circumstances in which this would satisfy the test of relevance. How might such evidence about behaviour with person A make a complainant’s allegation of rape or sexual assault against an alleged perpetrator, person B, more or less probable? In making that observation, I do not intend that this should operate as an absolute bar on adducing such evidence since it is ultimately a matter for assessment by a particular court dealing with a particular case
More complicated is the question of relevance in relation to evidence of a complainant’s sexual history with the alleged perpetrator. The fact that adult parents had previously or subsequently engaged in consensual sexual activity of any sort does not mean that they were not raped or sexually assaulted on another occasion. However, evidence as to the parents’ sexual relationship may be logically probative of an allegation of partnership rape or sexual assault. Thus, communications between the parties of a sexual nature may well be relevant as may communications between them either before or after the relevant incident or time period. That approach is in keeping with the court’s obligation to consider the wide canvas of evidence and its duty to have regard to patterns of behaviour – both of the complainant and the alleged perpetrator – as described in Re H-N. It does not give an alleged perpetrator permission to produce any material that they wish if it is irrelevant and, if relevant, where it fails to meet the approach articulated in [23] of Dunn v Durham County Council.
Mr Metzer KC invited me to state that there would be a strong presumption against the admission of evidence relating to a complainant’s sexual history with an alleged perpetrator and to declare that the circumstances should be exceptional. I decline to do so. First, that approach runs contrary to current practice in the family court which has been centred on relevance and is free from presumption or starting point. It also runs contrary to the basic principle that, by adopting an inquisitorial approach, the court requires the best relevant evidence before it to assess both the risk posed by a parent or the welfare best interests of the child. Second, and practically speaking, the Appellant’s approach runs the risk of depriving the court of evidence relevant to its factual determination. I observe that there may well be circumstances in which evidence of sexual history as between partners is relevant to the court’s assessment of the dynamic, their respective patterns of behaviour and the nature of their relationship.
Based on the analysis above, I do not regard it as necessary for a party wishing to rely on evidence of sexual history between partners to make a specific application to the court for permission to do so. Practically speaking, this would add complexity and cost to already contentious children proceedings where a high proportion of litigants are self-representing.
Though not addressed in either the written or oral argument because it is not a matter at large in these appeals, I note that a complainant may wish to adduce evidence of an alleged perpetrator’s sexual history with other individuals to demonstrate a pattern of allegedly abusive behaviour (such evidence being described as similar fact evidence). The Court of Appeal in R v P (Children: Similar Fact Evidence) [2020] EWCA Civ 1088 set out the approach to be taken to the admissibility of such evidence at the case management stage in [19], and [23]-[24], emphasising the test of relevance and the need for the court to have available the best evidence to illuminate the subtle and persistent patterns of behaviour involved in coercive control, harassment and stalking.
In conclusion and to assist family judges in their case management task, I offer the following procedural framework, loosely based on that I articulated in Re M (A Child) (Private Law Children Proceedings: Case Management: Intimate Images) [2022] EWHC 986 (Fam), namely:
(a) If a party wishes to adduce evidence about a complainant’s sexual history with a third party, a written application should be made in advance for permission to do so, supported by a witness statement;
(b) It is for the party making such an application to persuade the court of the relevance and necessity of such material to the specific factual issues which the court is required to determine.
(c) Any such application will require the court’s adjudication preferably at a case management hearing.
(d) The court should apply the approach set out above at [45]-[49].
(e) If a party wishes to rely on evidence about sexual history between partners, they do not need to make a specific application to do so unless reliance is also placed on intimate images. In those circumstances, the party must issue an application in accordance with the guidance at [77]-[78] in Re M (Intimate Images).
(f) If a party objects to evidence of sexual history between parents/parties being filed, it should make an application to the court in advance, supported by a witness statement explaining why this material is either irrelevant or should not be admitted.
(g) Any such application will require the court’s adjudication preferably at a case management hearing.
(h) The court should apply the approach set out above at [45]-[49].

Finally, and probably the most interesting, the “rape myths” point. Should the Family Court Judge give themselves a similar reminder about some of the common misconceptions surrounding rape and alleged rape that a criminal Judge would give to a jury to provide valuable context?

Proposition 5: Whether, when determining allegations of rape and/or sexual assault, judges in the family court should give themselves a warning about rape myths. Generally, such myths concern themselves with the behaviour or experiences of a complainant.

Mr Metzer KC submitted that family court judges needed to have a full understanding about the types of rape myths/stereotypes which had been pervasive in the judicial system for a long time. He noted that Crown Court judges were advised to give specific directions to juries about the types of stereotypes which were common in cases of sexual assault. He drew my attention to the relevant passages of the Equal Treatment Bench Book (July 2022), to the Crown Court Compendium and to the Crown Prosecution Service Guidance found at “Rape and Sexual Offences – Annex A: Tackling Rape Myths and Stereotypes”. The latter guidance contained a comprehensive list, outlining various rape myths by category and which contained subsections dealing with intoxication, victim behaviour, sexual history, inconsistent accounts and a victim’s response to sexual assault. The CPS Guidance is a dynamic document which is regularly updated in accordance with new case-law. Mr Metzer KC submitted that this Guidance would be a useful starting point for judges to remind themselves of rape myths and stereotypes before and during any fact-finding exercise.
In response, Miss Fottrell KC noted that family judges are now required to have Judicial College training in relation to sexual assault awareness as well as to attend extensive training programmes on domestic abuse. If this court considered that there were further training issues which may benefit family judges, the appropriate course was to bring this to the attention of the head of the Judicial College, Lady Justice King. However, if the court considered that the CPS guidance and the Equal Treatment Bench Book were useful, it was invited to say so for the benefit of judges in the family court.
None of the other advocates suggested anything markedly different from the submissions made by Mr Metzer KC and by Miss Fottrell KC. All the advocates accepted that, anecdotally, family judges not infrequently directed themselves as to rape myths and stereotypes.

I have reflected very carefully on what it is appropriate for me to say on this matter. Judicial training is a matter reserved to the Judicial College. In my view, the College is best able to assess what training is needed for family judges determining factual disputes between parents about the nature of their relationship, especially where those disputes concern allegations of sexual assault. In that regard, I note that the Court of Appeal highlighted the training available to family judges in [67]-[68] of Re H-N as follows:
(67) Following the judgment of Russell J and at the request of the President, the Judicial College devised a freestanding sexual assault awareness training programme for Family judges. The programme draws heavily on the successful “serious sexual assault” programme for criminal judges. Since July 2020, it has been a mandatory requirement for all judges who hear any category of Family cases to undertake this programme. The programme, which is under constant review, includes elements in respect of psychological reactions to sexual assault and trauma, and has the benefit of contributions having been made by a number of victims of sexual assault discussing the impact that an attack has had upon them. In addition to the more general training in relation to domestic abuse, which is already in place for Magistrates, bespoke training suitable for the work they undertake in respect of sexual assault and trauma is in the process of being developed.

(68) This bespoke Family training these in turn into, and is further developed within, the extensive training programmes that are run in relation to domestic abuse by the Judicial College for the fee paid and salaried judges. These courses have been in place for some years and play a key role in both induction courses for newly appointed Family judges and continuation courses run for Family judges who are already in post.

On the basis that I have found what follows of assistance in my own practice as the lead judge for domestic abuse, I draw the attention of family judges to Chapter 6 of the Equal Treatment Bench Book (July 2022) entitled “Gender”. Under a subheading entitled “Sexual Offences: Who is Affected?”, there is information about sexual offences which includes several paragraphs addressing rape myths which may feature in criminal proceedings (see [74]-[91]). Though written to assist those sitting in the criminal courts, there is much in that section which family judges may find useful. The Equal Treatment Bench Book is publicly available on the website at Equal Treatment Bench Book July 2022 revision (2) ( Likewise, the CPS Guidance on Rape and Sexual Offences at Annex A provides a comprehensive guide to the unhelpful stereotypes which may cloud judicial thinking in cases involving sexual assault. It too is publicly available on the website and was last revised in May 2021: Rape and Sexual Offences – Annex A: Tackling Rape Myths and Stereotypes | The Crown Prosecution Service (

I have also come to the view that I should not produce a list of common rape myths or stereotypes or attempt to craft a standard self-direction about sexual assault stereotypes which a family judge might give her/himself. No list would be comprehensive. Further, it would run the risk of creating a rigid framework to which adherence would be given. That would deprive a family judge of the flexibility to think about what is apposite in the particular case, having been appropriately trained to recognise unhelpful stereotypes, and should they consider it necessary to do so, for a family judge to draw attention in her/his judgment to the manner in which they have guarded against applying any relevant stereotypes. Secondly, any self-direction I might devise would be equally inflexible because it cannot encompass the great variety of stereotypical thinking outlined, for example, in the two sources to which I have referred.

Finally, Mrs Justice Knowles, did remark that in cases where findings of fact are made it is helpful to ensure that they are recorded in writing and ideally appended to the order made.

Finally, I have already commented on the failure by the judge to either produce his own schedule of findings or, if what I was told was correct, to endorse the schedule drafted by counsel. He was not alone in so doing, as the judge in the ABC appeal also failed to produce her own schedule of findings (though one was later produced by counsel at her invitation and attached to her order). Paragraph 29 of PD12J requires a schedule of findings to be attached to the court order following a fact-finding determination. In my view, it is desirable that, with the definitions of domestic abuse contained in PD12J firmly in mind when doing so, a judge produces her/his own schedule of findings, either incorporated into the body of a judgment or appended to its conclusion. That course avoids any lack of clarity about the detail of what the judge found, and any schedule can then be incorporated in or appended to the court’s order. I make this suggestion fully conscious of the pressures on the family judiciary engaged in what can often be a relentless train of successive fact-finding determinations, but it is not intended to make the task of judgment writing more difficult. On the contrary, I hope it represents good practice which may help to illuminate a judge’s evaluation of the evidence and to inform their ultimate findings.

Gender of ISW

This is a Court of Appeal decision arising out of a case management decision in private law proceedings. The father appealed a case management decision to instruct a female ISW, on the basis that it was a breach of his human rights – notably his article 9 rights to freedom of religious expression.

N (A Child), Re (Instruction of Expert) [2022] EWCA Civ 1588 (06 December 2022)

I do slightly wonder why permission to appeal was given here (it is EXTREMELY hard to successfully appeal a case management decision ) , particularly given that the appeal process meant that the final hearing listed in the case had to be adjourned but the case does throw up some interesting elements.

The parents were both raised as members of the Hassidic Haredi Orthodox Jewish community, the father in the United States of America, the mother in England. In 2013, they underwent an arranged marriage in Jerusalem and thereafter lived together in Israel. In November 2014, the mother gave birth to A.

Within the proceedings, the mother was making complaint that some of the father’s religious practices due to his strict religious observance was making her home life intolerable. Within her complaint she raised that the father showed discomfort in the presence of women, including sometimes herself.

The Court was asked to approve the instruction of an expert to undertake an assessment of the family. The father had originally put forward a female ISW with a background in undertaking assessments of people within the orthodox Jewish faith. The application only put forward one ISW. The mother opposed this because she said :-

In her position statement, the mother’s counsel objected to the appointment of Ms Leifer, stating:
“The mother is concerned that Ms Leifer is associated with Ezer lyoldos, a Charedi organisation which works strictly within the Charedi community. This raises concern that she may be a biased choice. The Part 25 application does not propose any other expert which is unusual. The mother would prefer Cafcass to carry out the report as they are more likely to offer a neutral standpoint.”

The Judge agreed that enquiries should be made of CAFCASS to see if they had any workers with experience of carrying out work within the Orthodox Jewish community.

That didn’t really come to anything and thus both parents put forward alternative ISW experts. The father was putting forward a man, and the mother two women.

The Court decided to instruct one of the female experts.

The father appealed on the basis that :-

the order permitting the instruction of a female social worker is an infringement of his human rights.

Within the appeal, the father asserted that the Court’s case management decision was an infringement of both his article 6 right to fair hearing and article 9 right to freedom of religion and right to manifest his religious beliefs.

The Court of Appeal considered the issues in the case and broadly determined that the process that the trial Judge had followed to reach the decision was appropriate. They took into account that no evidence in relation to article 9 had been placed before the Court at first instance and that it had been raised only in submissions – and that certain steps by the father (not least the initial identification of a female ISW) undermined an assertion that only a male ISW could undertake the work without infringing father’s article 9 rights.

There was nothing in any document filed in the proceedings before the hearing on 20 July to suggest that the father objected to the instruction of a female independent social worker on the grounds that such an appointment would compromise his ability to engage in the proceedings due to his beliefs or that it would therefore be a breach of his right to a fair hearing under Article 6 and his right to manifest his religious beliefs under Article 9. It was only in oral argument before the judge that the father’s counsel suggested that given the father’s beliefs the appointment of a woman would be a breach of his Article 6 rights. This assertion was unsupported by any evidence filed by the father and undermined by a number of steps taken on his behalf in the course of the proceedings. In those circumstances, the judge was entitled to reject it.
In these circumstances it is not necessary to say whether it could ever be right to specify an expert of a particular gender. I do not, however, rule out the possibility that such an order could be justifi
ed. As ever, all will depend on the circumstances. Justice requires the court to adopt a procedure which pays due respect to persons whose rights are significantly affected by its decisions. It is, however, imperative that any application that the expert instructed be of one specified gender must be clearly explained and fully supported by evidence demonstrating why such a stipulation should be included.

King LJ in her judgment set out the Court’s powers to take creative steps to assist vulnerable persons in ensuring that their evidence can be given as fairly as possible and drew the parallel that the same can apply to assessments to be carried out.

I agree that the appeal should be dismissed for the reasons given by Baker LJ and Dingemans LJ. I would only add a little about the extensive case management powers available to judges which allow them to conduct proceedings in such a way as to give proper respect to the views and/or beliefs of those who appear before them, whilst at the same time ensuring that justice is achieved.
The well-known and well established ‘overriding objective’, found at FPR 2010 r.1.(1) is the procedural code designed to enable the court to deal with cases justly, having regard to any welfare issues involved.
The balance of the rule amplifies the proper approach to be adopted in order to achieve the overriding objective. This includes at FPR r.1.4(1) the requirement that the court “must further the overriding objective by actively managing cases”. The rule goes on at FPR 1.4(2) to set out 13 matters of active management which include at FPR r.1.4(2)(5) “controlling the use of experts” and at FPR 1.4(3) a total of 16 examples of the court’s case management powers which are in addition to those given by virtue of any specific enactment.
It is against the backdrop of these extensive powers of case management that, as noted by Baker LJ at paragraph 37, the appeal courts have repeatedly emphasised their reluctance to interfere with case management decisions made by a judge at first instance.
Those who drafted the Children Act 1989, and the judges at all levels who have sought to interpret it, have been conscious that in order to achieve the best possible outcome for children, whether in private or public proceedings, their parents and carers must be placed in a position so as to enable them to give their best evidence.
Statutory examples include s98(2) Children Act 1989 which provides for a statement or admission made in care proceedings not to be admissible in evidence in proceedings for an offence other than perjury. In Re X (Disclosure of Evidence) [2001] 2 FLR 440, Munby J, in that context, emphasised that the interests of a child are served by encouraging frankness and the importance of encouraging people to tell the truth in cases concerning children.
A further, but very different, example is the use of intermediaries and of physical special measures (screens, separate entrances and the like) designed to enable those who are vulnerable or victims of domestic abuse to attend court and to give their best evidence. The FPR r.3A.4 and r 3A.5 specifically require a court to consider “whether the quality of evidence given by a party or witness is likely to be diminished by reason of vulnerability”.
In Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948 (para 36), Baroness Hale referred to the flexibility inherent in family proceedings and said that “The court’s only concern in family proceedings is to get at the truth. The object of the procedure is to enable witnesses to give their evidence in the way that best enables the court to assess its reliability”.
In Re S (Practice: Muslim Women Giving Evidence), [2006] EWHC 3743 (Fam), [2007] 2 FLR 461, Macur J made arrangements by way of screens and the ingenious use of a large umbrella, so that she could see the witness, but that the litigant’s male counsel would not be able to see his lay client. In this way the Muslim woman litigant, who was accustomed to wearing the veil, was able to remove her veil whilst giving oral evidence. Macur J stressed the importance of witnesses in family cases being able to present their evidence to the satisfaction of the court. Macur J however also sounded a note of caution, saying that “Each case must obviously be looked at in its own circumstances, and the court must be alert to any opportunistic attempt to derail proceedings”.
The need to obtain the best possible evidence applies equally to that part of proceedings which takes place before the hearing, whether in the form of assessments or the commissioning of expert’s reports. The court has at its disposal the raft of case management powers referred to above which will enable it to find creative solutions to any difficulties which may be thrown up as Macur J did in Re S and as did the appellant in the present case. The court was informed that the appellant had used an intermediary and a telephone, without a video link, in order to enable him to give instructions and to take advice from his female solicitor.
As highlighted by both Baker LJ and Dingemans LJ the court will not however be in a position to utilise these case management powers in order to identify a way around a potential problem unless and until the problem in question has been properly identified, put before the court and where necessary, evidence adduced in relation to the same.

Relaunch the PLO – 26 weeks back again?

The President of the Family Division has published the latest View

The link doesn’t seem to work so it is

Basically as all of us working in Family Justice know, due to the immense pressures on the Court service anyway and exacerbated by the Covid pandemic – which took Tier one out of the picture for two years and caused a huge backlog, in many cases now where the evidence is all gathered and ready for final hearing it is taking four-six months to get a final hearing.

That knowledge had a knock-on effect – what was the value in professionals busting a gut to get all of the evidence ready by a week 20 IRH when there was NO possibility whatsoever of getting a final hearing in the 6 weeks after that to hit 26 weeks?

And so drift came back in to the system.

The President is now saying, this is the time to restart thinking about 26 weeks and trying to achieve it. I don’t know where they are magically going to summon up Judges to clear the backlog of cases (frankly, it probably requires a year of getting every single Recorder with a care ticket to sit more or less full time, to get rid of those and allow a clean start)

But the President does have some suggestions – really centred around the issue that if you take directions hearings out, or at least greatly reduce them, you’ll have more space in the diary for final hearings.

So, the big ideas are :-

  1. Care proceedings should have 3 hearings only. The third one should be the final hearing. I.e, you have an ICO hearing/CMH, an IRH and a final hearing. If you reduce the number of hearings that have to be squeezed into a Court diary, then more of the space available in that diary can be used for final hearings, so you’ll wait less time for one.
  2. Parents are to identify alternative family members for assessment by the time of the CMH (or within a week of it). At the moment, I think that the delay in care proceedings is generally at the IRH-waiting for final hearing stage, rather than the being ready for IRH stage, but it would obviously be better to identify family members and do that assessment as early as possible. I’ve been talking about the “Auntie Beryl” problem for years – that it is at the point where parents realise that adoption is being recommended that they really dig deep into family and find someone who would offer to be assessed, and is a Court ever going to turn down a realistic proposal that comes in late – especially with the Re B-S and Re B guidance about adoption being “nothing else will do”. I think this is a good proposal, but we’ve heard it all before, and are Judges genuinely going to be backed by the Court of Appeal if they refuse assessments of family members put forward at week 18? (and even if they do, is that actually a good thing?)
  3. Cut down on experts – the statistics apparently are that expert instructions have gone up 33% since 2016. I wonder what proportion of that are having to do updating hair strand tests because the final hearing is months later than hoped for. It’s probably no bad thing to remind everyone of the strictures of Part 25 and it does seem over the last few years that we’ve drifted back to a feeling of experts being the norm rather than the exception.
  4. Limiting the issues to be considered by the Court at final hearing – is threshold satisifed, where should the child live, what are the contact arrangements, what final orders should be made? That’s what the Children and Families Act 2014 said the Court HAD to consider at final hearing, but in practice it has been difficult. What is a Court to do where the plan is, for example for a parent and child to move from a parent and baby placement into the community but the housing is simply not available?
  5. Robust case management and focus on compliance with orders, making every hearing count and so on.

Without the ability to pump more resources into the system – which isn’t within the President’s gift and if anything the direction of travel with public finances will be less resources rather than more, these are all sensible practical proposals to do more with what we have.

I suspect we’ll also see much stricter marshalling of Court resources when setting time estimates for final hearings – advocates may have to really be able to justify their time estimates for witnesses and I suspect there will be a downward pressure to make 5 day hearings fairly exceptional, and 3-4 days becoming the norm. That obviously makes it harder for the judiciary because reading time and thinking time to construct the judgment within working hours becomes harder to hang on to.

If I had a magic wand, these would be my two additions.

  1. When the case is issued by the Local Authority, the Court find a 3 day final hearing slot between weeks 20 and 26 at the time of issue, or as close to it as can be managed. If those days end up not being needed, so be it, they can always be used for something else (the cases that go 4 or 5 days instead for example), but everyone starts the case KNOWING when the case should conclude. Probably at the moment, those final hearing dates are 9-10 months away, but as we work through the new batch of cases the time lag between IRH and final hearing comes down. Until we can have honest and robust conversations about the lag between IRH and final hearing, we can’t really address this central problem in cases. (I’ll make it plain – it isn’t the Court’s fault that it takes so long to get a final hearing, it is a symptom of overwork and under-resourcing)
  2. I would honestly nuke the ADM as a gatekeeper for Local Authorities making Placement Order applications. If the Local Authority are wrong in seeking adoption as the plan, let that be thrashed out before the Court and the Court make the decision. What’s the benefit of building a 2-3 week hold-up in care proceedings to allow an internal Local Authority piece of gatekeeping when the Court is going to make the decision anyway? This is nothing against ADM’s who are good people and work hard but if the decision on ASKING for a Placement Order sat with the social work manager (or the next tier of management), would that genuinely make things any worse for the child? The unsatisfactory applications will be refused by the Court in any event.

Can a foreign conviction establish threshold in care proceedings?

I already know that regular reader David Burrows is going to love this case.

W-A (Children : Foreign Conviction) [2022] EWCA Civ 1118 (05 August 2022)

This is an appeal, by a man named MH (mother’s husband) against a decision by the High Court that his conviction for sexual offences against a child in Spain would stand as presumptive evidence of proof of the facts underlying the conviction in an English Court dealing with care proceedings. That is, that in order to rely on those facts the Local Authority didn’t have to go and prove those allegations again.

It seems at first instance a peculiar appeal, because the common sense answer would seem to be, yes, of course the foreign conviction can be relied upon.

But we go back to both a 1943 road traffic accident claim and some 1968 legislation to look at it, and the issue doesn’t ever seem to have come up before.

The 1943 road traffic accident claim is Hollington v Hewthorn [1943] 2 All ER 35; [1943] 1 KB 587 a Court of Appeal decision. The plaintiff was suing the defendant for a road traffic accident and wanted to rely on the defendant’s conviction for dangerous driving. The Court of Appeal ruled then that as they were two separate incidents, the conviction in the criminal court carried no evidential weight as to whether the defendant had been negligent in this case and that if the plaintiff wanted to rely on it, the civil Court would need to look at the facts of the conviction and reach its own decision. I.e that a conviction or finding in another Court did not prove the fact in the second Court.

This was then reviewed by the Law Commission, arising in the Civil Evidence Act 1968, which provides at s.11 that in any civil proceedings the fact that a person has been convicted of an offence by any court in the United Kingdom shall be admissible for the purpose of proving that he committed that offence,

Job done?

Well, no, because the Civil Evidence Act 1984 did not make the same provision for convictions overseas or findings by another Court short of conviction.

However, the Law Reform Committee in its Fifteenth Report (“The Rule in Hollington v Hewthorn”, Cmnd 3391, 1967), did not recommend the abolition of the rule in relation to findings made in civil proceedings, nor its abolition in relation to foreign convictions. At paragraph 17 they said:
“We have restricted our recommendation to convictions by courts of competent jurisdiction in the United Kingdom. We do not include convictions by foreign courts. This is for practical reasons. The substantive criminal law varies widely in different countries. So does criminal procedure and the law of evidence. The relevance of the foreign conviction to the issues in the English civil action could not be ascertained without expert evidence of the substantive criminal law of the foreign country. Its weight could not be judged without expert evidence of the procedural law of the foreign country and reliable information as to the standards of its courts. There are, of course, many countries whose standard of the administration of criminal justice is as high as our own, but there are others in which one cannot be assured of this. It would be invidious to leave the admissibility and weight of a foreign conviction to the discretion of an English judge unfamiliar with the legal system and standards of criminal justice of the foreign country concerned. Furthermore, the burden of showing that a foreign conviction was erroneous would be difficult, perhaps impossible, to sustain, since there would be no way of compelling the witnesses in the foreign criminal proceedings to attend to give evidence in the English courts. The practical effect of making foreign convictions admissible might well be to make them conclusive and the remoter the country in which the conviction took place the more difficult it would be to dispute its correctness”.

So the Court of Appeal had to decide the point – is Hollington v Hawthorne 1943 binding on the family Courts – which means findings from other civil courts or foreign convictions would not be of themselves proof that the matters underlying those decisions were proven

I’ll add that MH had received a 5 1/2 year prison sentence in Spain for his sexual offence against a child, and the Court of Appeal had this to say on the implications of simply ignoring that or demanding that the allegations be proved again in the English courts.

One checklist factor is any harm which the child has suffered or is at risk of suffering. This calls for a risk assessment in the light of findings of fact arrived at in the normal way, with the burden of proof being on the party seeking a finding to prove it on a balance of probability. The obligation to take account of all the circumstances means that the court is not confined by the way in which the parties put their cases. Provided procedural fairness is observed, it has complete control of the process, which is aptly described as quasi-inquisitorial.
The proviso concerning procedural fairness is of course important. Natural justice and Art. 6 ECHR sound as clearly in family proceedings as in any other context. At the same time, there will be circumstances in which perfect fairness to all parties cannot be achieved and the court must protect each competing interest to the greatest possible extent, having regard to the purpose of the proceedings themselves. The rights and interests of the child will generally predominate where they conflict with the interests of others, but there is always a balance to be struck.
The present case offers a clear illustration of this tension. The central issue is whether MH poses a sexual risk to children. The incident that led to the Spanish conviction is the lynchpin of the local authority’s case. MH accepts that he was convicted but says that he was not guilty. He also argues that his trial (at which he and the child gave evidence) was unfair in a number of ways. He has produced a certain amount of documentation surrounding his conviction and more may be available by the time of the final hearing. However, the question of admissibility cannot turn on the attitude of the parties or the availability of surrounding information and the matter must be approached as if this was a bare conviction.
Accordingly, when the case is finally heard there are two possibilities. The first is that the conviction is not admitted and the local authority is required to prove the allegation of sexual abuse as if there had been no conviction. That may be impossible, given the length of time that has passed, and in consequence the threshold may not be crossed with the result that the proceedings would founder. The second possibility
is that the conviction is admitted, with MH having the opportunity to persuade the court that it should not rely upon it; again, that may not be easy. It is therefore necessary to select the outcome that is more consistent with the purpose of the proceedings themselves.
Family proceedings involve a fact-finding element, on the basis of which assessments and decisions are made. In care proceedings, proof of the significant harm threshold is a precondition for the court to exercise its powers and it has been said that, while the proceedings overall are essentially inquisitorial, they are necessarily adversarial in that respect: Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5; [2013] 1 FLR 1250 at [70] (Sir James Munby P). However, the fact-finding element of the process cannot be isolated from the welfare decision it informs. In this respect the position differs from other kinds of civil proceedings, as reflected in the respective procedural rules. The overriding objective under the Civil Procedure Rules is to enable the court to deal with cases justly and at proportionate cost, while under the Family Procedure Rules it is to enable the court to deal with cases justly, having regard to any welfare issues involved.
The characteristics of family proceedings therefore speak strongly against the existence of artificial evidential constraints that may defeat the purpose of the jurisdiction.

Going on to the law


The rule in Hollington v Hewthorn does not apply in family proceedings as I have defined them because such a rule is incompatible with the welfare-based and protective character of the proceedings.
In family proceedings all relevant evidence is admissible. Where previous judicial findings or convictions, whether domestic or foreign, are relevant to a person’s suitability to care for children or some other issue in the case, the court may admit them in evidence.

The effect of the admission of a previous finding or conviction is that it will stand as presumptive proof of the underlying facts, but it will not be conclusive and it will be open to a party to establish on a balance of probability that it should not be relied upon. The court will have regard to all the evidence when reaching its conclusion on the issues before it.
In this case the judge was right to find that the conviction of MH is plainly relevant evidence in these proceedings and that there is no rule of evidence that makes it inadmissible. As Leggatt J said in the civil context of Rogers v Hoyle at [27], the modern approach is that judges can be trusted to evaluate evidence in a rational manner, and that the ability of tribunals to find the true facts will be hindered and not helped if they are prevented from taking relevant evidence into account by exclusionary rules. This is all the more so in family proceedings, where exclusionary rules such as estoppel, res inter alios acta and Hollington v Hewthorn do not apply because they would not serve the interests of children and their families or the interests of justice.

As I have said, while it might be possible to distinguish the present case from Hollington v Hewthorn on the basis of identity of issues and lack of unfairness to third parties, it is unnecessary to found the analysis on these narrower and more contestable matters that depend on identifying the true ratio of the decision. Nor do I attach special significance to the inquisitorial nature of the proceedings. The important consideration is not that family proceedings are inquisitorial in form but that they are welfare-based in substance.
The outcome is not unfair to the mother. As the judge said, she is not in a position to give evidence that is relevant to the conviction. It is not conclusive and she will have an opportunity to examine any surrounding evidence.

On the basis that the conviction was admissible, the judge was right to admit it. Indeed there could have been no good reason to refuse. She asked whether it was appropriate to depart from Hollington v Hewthorn, but as she had held it to be both inapplicable and distinguishable, the real question was whether there was some other reason to exclude the evidence, and there was none. Accordingly the question of comity is not relevant, while the circumstances of the original finding or conviction and the difficulties of proof in an individual case are matters for the court to keep in mind when it comes to weigh the evidence as a whole.
Once a conviction is admitted it inevitably becomes evidence with presumptive weight, otherwise there would be no purpose in admitting it. It would be meaningless to treat it as “just another piece of evidence”. Further, the court’s power to reopen its own findings has no application to the question of how the findings of other tribunals should be treated.
For these reasons, which are similar to those given by the judge, I would reject each of the grounds of appeal and dismiss the appeal.

and Lord Justice Bean said:-

Peter Jackson LJ has given in his judgment a compelling analysis of why a foreign conviction should, as a matter of principle, be admissible and given presumptive weight in proceedings under the Children Act 1989; and why there is nothing in Hollington v Hewthorn which requires us to hold otherwise. I agree with him entirely, and I too would dismiss the appeal.
As to the point of principle, no one in this case has argued that MH’s conviction in Spain should be conclusive. But the suggestion that it should not even be admissible is alarming. It is not difficult to imagine a care case in which a relevant party has been convicted of a serious sexual or violent offence in a foreign court, but the English court has no independent evidence of the facts on which the conviction was based. It cannot be right that in such a case the family court in England and Wales deciding issues relating to the welfare of children should have to ignore the conviction and somehow pretend that the relevant party is of entirely good character and that the offences of which he was convicted never happened.
As to the rule in Hollington v Hewthorn, in their 1967 report the Law Reform Committee observed that “rationalise it how one will, the decision in this case offends one’s sense of justice”; and that “it is not easy to escape the implication in the rule in Hollington v Hewthorn that, in the estimation of lawyers, a conviction by a criminal court is as likely to be wrong as right”. They made recommendations in respect of convictions by UK courts which Parliament promptly enacted in the Civil Evidence Act 1968. However, in paragraph 17 of their report, cited above by Peter Jackson LJ, the Committee recommended no change to make foreign convictions admissible.
It is unnecessary for us in this case to decide anything about the admissibility of foreign convictions in English civil courts. In civil proceedings the doctrine of precedent may require this court to follow Hollington v Hewthorn without question, even though in Hunter v Chief Constable of West Midlands [1982] AC 529 at 543 Lord Diplock (with whom the other members of the House of Lords agreed) said that it “is generally considered to have been wrongly decided”. But for my part I suggest that, half a century on, the reasoning in paragraph 17 of the Law Reform Committee’s 1967 report requires re-examination. Either the surviving effect of Hollington v Hewthorn as a whole, or (more narrowly) the question of the admissibility of foreign convictions in English court proceedings, would be a very suitable topic for consideration by the Committee’s successors, the Law Commission of England and Wales, either on a reference by the Lord Chancellor or as part of the Commission’s next Programme of law reform.