Author Archives: suesspiciousminds

Joe and the Juice…

Posted on May 29, 2025 by suesspiciousminds

Oh boy. Buckle up, buckaroos.

Not sure there’s all that much valuable law in this one – unless you happen to have a case with the man in question, but there’s a LOT to unpack.

https://www.bailii.org/ew/cases/EWFC/HCJ/2025/130.html

CA & Ors, Re (Children of Unregulated Sperm Donor) [2025] EWFC 130 (16 April 2025)

Now, you were already saying to yourself – why has Suess opened this blog post with a photo of tomato passata? And now you’re saying – well, I’ve read the title of the case and it makes EVEN LESS sense now.

Stick with me.

High Court case, the LA seeking Care and Placement Orders in relation to two children, CB and CX, and there were linked private law proceedings in relation to CA. What all three had in common was that their biological father is a Mr Robert Albon. (weird to name him, you’re thinking…).

Mr Albon is for want of a better term, a professional donator of sperm. He has fathered on his account 180 children. He opposed the making of the Care and Placement orders for CB and CX – the mother did not oppose but did not consent.

In analysing the right outcome for the children, the Court had to look at Mr Albon’s history and thus his parenting capacity. Mr Albon uses the pseudonym, Joe Donor. If you’ve just had a shudder down your back as you realise exactly why this blog post has the title it does, I’m sorry.


  1. Robert Albon is 54. He was born in the United States of America and was adopted with his twin brother at the age of three. His adoptive parents later conceived and gave birth to a boy themselves whom Mr Albon feels was favoured by them. The family lived around the world because of his adoptive father’s work. Mr Albon’s twin died in a motorcycle accident as a teenager. His adoptive father died a few years ago. Mr Albon has no contact with his surviving brother or his mother. He is fluent in Japanese and Chinese, speaks other languages, and has worked as a translator. He married a Japanese woman and they had two children who are now in their 20’s. During the marriage Mr Albon had an affair with a Chinese woman with whom he had two children. In or about 2013, he started acting as an unregulated sperm donor. He told the Court that he wanted to have more children whereas his wife did not. He enjoyed having brought further children into the world with the Chinese woman but not the complications that arose from having done that. Sperm donation allowed him to produce more children without complications.

Without complications…

Mr Albon seems to be quite the international jetsetter.

  1. In 2017, Mr Albon was living in the US with his wife. The children of his marriage were their daughter, then aged 21, who he says had become estranged from the rest of the family by 2017, and their son, then aged 17. One day, when his wife was out of the house, Mr Albon drove to the airport and caught a flight to Argentina. He contacted his wife a few days later to tell her that he had left. He lived in Argentina for about three years. He told the Court that there were a number of reasons why he left, including that he and his then wife wanted different things in life. He said that he had chosen Argentina because he spoke Spanish, and there was a low cost of living there. He says that he sent about US$1000 per month to his wife but also revealed that the family home was repossessed and that an order for alimony payments to his wife was made against him. He complained that the order was manifestly too high due to an error made by his ex-wife when she completed the application. However, the order remains in force. They divorced in 2019 but he says that he speaks to her a few times each year. He says that he is on good terms with his ex-wife but produced no evidence to corroborate that assertion. They both remain estranged from their daughter. He met his son when he returned to the US to deal with the car he had left at the airport but now has no contact with him. He has no contact with the Chinese woman or their two children which he puts down to having lost their contact details and difficulties finding and communicating with people in China.
  2. Mr Albon had carried on sperm donor services in the US before he left in 2017. One mother, from Wisconsin, pursued him for child maintenance and secured a court order. He complains that she harassed his daughter and that he applied for a restraining order against the woman to protect his daughter. He accepts that the maintenance order remains in force and that a warrant was issued for his arrest for breach of the order. The warrant remains in force. He is confident that he would be able to set aside the order if he returned to the US but he accepted that, between that order and the alimony owing to his wife, he is in debt for tens of thousands of dollars.
  3. Mr Albon continued to act as an unregulated sperm donor in Argentina. Whilst there he made a trip to Australia visiting fifteen or so women for the purpose of donating sperm to them. His visit was reported upon in a news documentary programme called “60 Minutes Australia” which I have viewed as well as reading a Media Watch report, critical of aspects of the programme. He also made trips to other South American countries. He claims to have fathered multiple children in the US, South America, and Australia. At some point Mr Albon also started a sperm donor Facebook page in Africa. It is wholly unclear how many children he may have fathered there. The co-administrator of the page has reportedly used the expression “bleach Africa” which Mr Albon told this Court was a joke.
  4. Mr Albon says that he left Argentina because of a change in government there, the effects of the pandemic, and because he wanted to travel to The Netherlands and Germany. He came first to the UK but was prevented from leaving for Germany or The Netherlands as planned due to the second wave of restrictions due to the Covid 19 pandemic. He arrived in September 2020 and has remained here since then. On 5 October 2020, he appeared on television on This Morning, claiming to have fathered 150 children “by personal insemination” and was interviewed by Phillip Schofield and Holly Willoughby. He was granted a visitor visa to the UK from 29 September 2020 to 30 March 2021 and initially lived in a hotel in Essex. His visa was extended to 3 November 2021 due to the pandemic. He then applied for permanent leave to remain.

This is not the first set of English family law proceedings Mr Albon has become involved with.

  1. On or before 6 November 2020, Mr Albon was contacted by a woman, B, about his becoming a sperm donor to assist her to conceive. The circumstances of the conception and birth of their child are set out in the published judgment of HHJ Furness KC sitting in the Family Court at Cardiff, A v B and C (above), in which the child is referred to as D. I have seen other papers from that case. HHJ Furness KC found that D was conceived by artificial insemination performed on 8 November 2020. At the time, B was in a same-sex relationship with C whom she later married. D was born in July 2021.
  2. HHJ Furness KC found that Mr Albon promoted his sperm donor service, both online and during his interview on This Morning, as being provided with no expectation of any paternal involvement with the child. Specifically, he had said, “Moms I help can choose no contact and I respect that.” The Judge found that B and C did not want Mr Albon to be involved in D’s life and that when Mr Albon contacted B about a fortnight after the birth asking to see D, she replied that she and C had already said to him that they did not want any contact. On 11 August 2021, there was what B and C thought would be a one-off meeting at which Mr Albon met D and photographs were taken. On 16 August 2021, Mr Albon applied for a declaration of parentage, an order granting him parental responsibility, and a CAO giving him contact with D. Later he applied to the court to change D’s name. On the day that B and C received the court papers there was a telephone conversation between them and Mr Albon which he recorded. Two years of litigation ensued before the Court dismissed Mr Albon’s applications. The Judge found that “the motivation for [Mr Albon] commencing the proceedings was principally to support his immigration position.” The Judge recorded that the mother, B, had a history of mental health problems made worse by the litigation. The Judge found that Mr Albon was dismissive of C’s role in D’s life, suggesting at one point that she could be called “aunty” by D. The Judge found that a CAO giving Mr Albon direct contact with D would lead to conflict and instability and be detrimental to D’s welfare. As agreed by B and C, the Judge ordered that indirect contact should take place by way of an annual updating letter from B and C to Mr Albon and an annual card or letter from Mr Albon which would be retained for D “for when he was of an age to understand from whom the document derived”.
  3. HHJ Furness KC handed down a finding of fact judgment in July 2023 and a final welfare judgment in November 2023. He found that Mr Albon:
  4. “… is a man who seeks to control, women and children appear to be almost a commodity to him as he sets about increasing the number of his children around the globe.”
  5. Mr Albon sought to appeal all the decisions of HHJ Furness KC. He was a litigant in person. He put forward 47 grounds of appeal. Peter Jackson LJ refused permission on all grounds on 30 January 2024. Mr Albon then sought to apply to the European Court of Human Rights but that application seems to have got nowhere.

The High Court looked at material involving some of the women in the UK who have had Joe Donor’s service- remember that what he says he wants is to produce more children ‘without complications’

  1. I have access to social services and police records concerning Mr Albon’s involvement with a woman, MC, from Norfolk. They met in January 2021 and agreed to undertake what Mr Albon likes to call “partial insemination” or PI. This is sexual intercourse without kissing, foreplay or affectionate touching. MC fell pregnant by February 2021 and Mr Albon and MC then started living together in Norfolk in March 2021. The following month they moved house within the county. Each of MC and Mr Albon alleges that the other was physically violent over the months from April to August 2021. Mr Albon made several complaints to the police about MC being violent towards him, stalking, causing criminal damage, and having assaulted her child. Nevertheless, on 1 July 2021 Mr Albon and MC appeared together on This Morning, announcing that they were now engaged to be married, under the story headline, “I slept with a Man for his Sperm.” On 4 August 2021, whilst pregnant with their child, MC moved out of their home but Mr Albon remained living there. The police imposed bail conditions on MC. Later that month, MC complained to the police that Mr Albon had been domestically abusive toward her including using physical violence, isolating her from her support network, and perpetrating emotional, sexual and financial abuse. Social Services asked Mr Albon to move out of the family home and he did so on or about 24 August 2021.
  2. In November 2021, Mr Albon told Norfolk police that MC “suffers a personality disorder that causes her to act this way. He was aware of this at an early stage in the relationship…” . MC gave birth to her and Mr Albon’s child, a boy, in October 2021. Although MC wanted the police to pursue a prosecution against Mr Albon for domestic abuse, she did not attend an appointment to make a statement and in December 2021 the Norfolk Police closed the file on her complaint for want of co-operation. In January 2022, Norfolk Police also closed the file on Mr Albon’s complaints against MC for lack of further evidence from him.
  3. In October 2022, MC reported to Norfolk police that Mr Albon was seeking access to their child and asking for a photograph and had threatened court action.

I think there may have been some complications here.


  1. There are common themes in relation to these six families who have had involvement with Mr Albon in the UK since his arrival here in September 2020. Five of the six women are known to have mental health issues or histories that make them vulnerable. Most of them are known to have believed that it was understood that Mr Albon would not play any parental role in the lives of the children he and they hoped to produce. All six relationships with these women ended in police involvement and/or litigation. All but one of the mothers do not want him to have anything to do with their children and the one that does, has agreed contact limited to one meeting a year, an arrangement not yet approved by the court as being in that child’s best interests. This is Mr Albon’s track record in relation to the six donor-conceived children in the UK of which the Court has evidence.

What do the Court say about Mr Albon?


  1. Mr Albon advertises his services as an unregulated sperm donor under the pseudonym Joe Donor. He has written self-published books about sperm donation. His account of his donor service can be summarised as follows:
  1. a. He promotes himself as a sperm donor online using Facebook and Instagram including Facebook groups which he administers.
  2. b. He makes no claims to a woman who contacts him about his health or the absence of hereditary conditions. In fact he has tests for HIV about once a year but not for sexually transmitted infections (“STI’s”). He has not been screened for any genetic conditions.
  3. c. He does not enter into any oral or written agreements with the woman.
  4. d. He offers natural insemination (NI), artificial insemination (AI), and what he calls partial insemination (PI) which is sexual intercourse without any intimacy (no kissing, foreplay or prolongation of intercourse for pleasure).
  1. I have seen a number of examples of Mr Albon’s online postings and self-promotions. He has recently posted images and audio recordings of his offer to send out samples of his sperm by post for the purpose of artificial insemination. The images include him wearing latex gloves, holding syringes beside a centrifuge machine.
  2. Mr Albon is frank about his sperm donor activities. He regards himself as performing a job which benefits women. He says that just over 50% of the women who use his service are inseminated through intercourse and the rest inject his sperm using a syringe. He says that he leaves it entirely up to the women who become pregnant whether they want him to have any contact with the child. He says that he maintains contact with upwards of 60 of the children he has fathered and that he is named on about ten birth certificates. When asked to name any of his donor-conceived children with whom he maintains contact he was unable to name more than ten and the Court is aware of six of those in England and Wales as set out above. It was difficult to believe that he maintains contact with 60 or so of his children and he produced no evidence to corroborate that claim. He told the Court that currently there are some six or seven women in the UK who are pregnant after having used his sperm.
  3. The women who use Mr Albon as a sperm donor mostly fall into two camps: women in a lesbian relationship and women who are not in any relationship. The risks they take in using a prolific, unregulated sperm donor who operates as Mr Albon does, are obvious. They do not know anything about the health of his sperm, his genes, his physical or mental health, or his history. Like MA, many will not even know his real name. There is no record of his other children, their mothers, or where they live. There is nothing to prevent Mr Albon seeking declarations of parentage, parental responsibility, or child arrangements orders in respect of the children he fathers.
  4. The three advantages of Mr Albon’s service for women who use it are (i) it is cheap, (ii) it is available almost immediately, and (iii) no conditions are attached and no questions are asked: the evidence before the Court shows that Mr Albon will have sex with, or provide his sperm for artificial insemination, to just about anyone who asks. I received no evidence of any occasion when he has declined to offer his donor service to a woman who has asked. He is indiscriminate in that respect.
  5. Mr Albon’s motivations for acting as a prolific sperm donor have been questioned at this hearing. Is he motivated by the desire to have sex with many different women? Is he compelled to reproduce? Does he enjoy gratification from knowing that there are scores of his children on the earth? Is he simply attention-seeking? Does he want to secure his immigration status? It is difficult to look into the mind of Mr Albon because he is not self-reflective. He has a matter of fact attitude toward what he does. In the documentaries or interviews I have viewed, he appears to regard his “work” as a both a humanitarian service and a bit of fun. He uses cartoon type imagery to promote his service. He refers to his semen as “Joe’s juice” and “baby batter”, and joked with a reporter who had accompanied him at a hotel where he was due to provide a sample of his sperm for AI, that a mug he was holding was a “cup of Joe”. He even put down his co-donor’s sinister comment about “bleaching Africa” as a joke.
  6. Mr Albon was given a warning about self-incrimination under CA 1989 s98 before he was asked well-targeted questions prepared by Ms Howe KC and Mr Simpson about the storage, processing and distribution of his sperm. In his statement of 15 March 2024 in the Durham proceedings, Mr Albon said,
  1. “I survive month to month on the money left over from the reimbursement of the costs associated with private sperm donations that are provided to cover my expenses. This can vary, but I generally have £800 a month left over from the expenses.
  2. I also get some payments from media for pictures and stories. This can vary but it generally works out at around £100 a month.”
  3. Mr Albon was asked about this statement. He confirmed that he charges £100 for the delivery of his sperm by post. He explained that he puts his sperm into a syringe, packages the product and packs frozen passata (tomato puree) around it which, he says, defrosts slowly and keeps the product at a suitable temperature. He then posts or couriers the package to the recipient. Although he has described his charge as being for expenses only, he told me that the costs associated with this service are about £50 (including the passata). He has not produced any evidence to verify this claim but, even on his own account, he still has £50 left over after the payment of expenses. He said that he has to pay his utilities and rent but these are living expenses and even if he was treated as running a business and could claim some of his rent and other outgoings as business expenses, the total costs to him of producing, treating, packaging and posting his sperm would not amount to £50 for each delivery he sends out. He said that the balance of £50 after expenses was “opportunity cost”. That is an economist’s term for the profit foregone from alternative activities when a chosen activity is undertaken. It is not an expense or overhead of a business. If, in March 2024, he had £800 a month left over after the payment of expenses and was clearing £50 per package, he must have been sending out about 16 packages a month.

(Ah, that’s why the passata….)

  1. I conclude that Mr Albon produces sperm and distributes it as a sole trader for profit. He uses terms such as “expenses” and “opportunity cost” to obscure the fact that sperm donation is, for him, a business. He has not produced any business records or accounts but on his own account the costs to him of shipping his sperm are no higher than 50% of the £100 he charges for that service. He advertises his services online using cartoon-like imagery and light-hearted terms, whilst at the same time creating the impression that his sperm is tested and packaged in laboratory conditions. He has used images of plastic syringes, a microscope, and a centrifuge machine in promotional material. He refers in such material to “quality controlled sperm”. He told the court that he uses a substance known as an “extender” added to his semen. He is in business and he makes money out of the business. As such, having regard to the provisions of the Human Fertilisation and Embryology Act 1990 set out below, there must be a concern that he ought to have had a licence at least for distributing his sperm in the course of business to aid reproduction.

And here is one of the sentences of masterful understatement that only a High Court Judge can deliver…


  1. Mr Albon is not a man troubled by self-doubt. He invariably describes his own conduct positively and seems not to recognise the personal turmoil he has left in his wake. None of it seems to have made an impression on Mr Albon. He has moved from country to country and at times from family to family. More recently he has found that shipping his sperm is more profitable than travelling to have intercourse with women, but otherwise the disputes and difficulties in which he has been embroiled have not caused him to change the way in which he operates. The turmoil created has not had an impact on his behaviour.

Findings about Mr Albon


  1. I have given careful consideration to all the evidence before making any findings of specific motives for Mr Albon’s applications in relation to CA and CB. I have been greatly assisted by the expert evidence of Dr Young and by having the opportunity to see and hear Mr Albon give evidence over many hours at the hearing. There is no evidence before me of any diagnoses of a personality disorder or a mental health condition but there are traits to his personality which emerge clearly from all the evidence. First, he has very strong personal defences such that he appears to have rock solid confidence in his own judgment and decision-making. Second, he lacks empathy and only has superficial relationships with others. Third, he is dismissive of those who do not agree with him or who question his behaviour and beliefs. Fourth, he has a strong will and a determination to get his own way. Fifth, he needs to feel validated and recognised. Sixth, he seeks to control others to prove that he is right, to secure recognition, to get his own way, and to serve his own ends.
  2. This sixth trait – controlling behaviour – is demonstrated in many different ways. He uses language to control narratives: he sought to do so in cross-examination and in his description of his business. He uses ambiguity to manipulate. Thus, he is ambiguous about his future involvement in the lives of his future children when he first has contact with their mothers. This allows him later to decide whether and, if so when, to seek to become involved. In many cases he chooses not to do so, but in others he does, as it suits him. When he needs a roof over his head he has crept into the lives of women to his advantage: he moved in to live with MB, with MC in Norfolk, and with MD in the North East of England. He uses others’ vulnerability and naivety to suit his own ends – for example persuading MB to send him messages she had received from MC, and seeking to exploit MA’s fear of losing her children to try to persuade her to register him as CA’s father. The evidence suggests that his practice as a sperm donor attracts a high number of vulnerable women. MA and MB have mental health issues, and MA has a borderline IQ. MC apparently had borderline personality disorder, MD and B had histories of mental health issues, and a referral was made to the police in Yorkshire after concerns that Mr Albon had had sexual intercourse with a woman not capable of giving consent (albeit that was not pursued further by the police). These are women whom he can seek to control. He has covertly recorded conversations, guided those conversations, and then sought to rely on the recordings for his own advantage. That is a means of exercising control over others.
  3. I find that Mr Albon has sought to control five of the six women in England and Wales who have carried his children whose identities are known to the Court and whom I have identified earlier in this judgment. I exclude MC in the Chelmsford case because I am yet to conduct a final hearing in that case and I do not have evidence before me in these proceedings on which I could find that Mr Albon has been controlling of ME. Nor do I have any evidence that she is vulnerable to manipulation by him. It might well be the case that ME has made a fully autonomous decision to enter into a written agreement with Mr Albon, uninfluenced by him or anyone else. The arrangements they have reached may be in the child’s best interests. However, in the five other cases, including the two before me, there is evidence of Mr Albon exercising controlling behaviour. He has also used litigation as a means of control, as he tried to do in the Welsh proceedings and, I find, in both of the present proceedings. Pertinently, he told the Court that he is now making money by writing pre-action letters for others, in particular people who claim to have been defamed.

The Court did grant him the declaration of parentage that he sought, declined to give him parental responsibility, and gave him some contact with CA

For CB and CX the Court made Care and Placement Orders and directed that a copy of the judgment be provided to the Home Office and the Human Fertilisation and Embryology Authority, both of whom I suspect will be in touch with Mr Albon.

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Caesar’s wife and care proceedings

Posted on May 23, 2025 by suesspiciousminds

This is a post about a case that has recently been before Theis J, and has been reported on by the Guardian and the Observer.

https://observer.co.uk/news/national/article/child-abuse-is-never-above-the-law-not-even-if-youre-a-family-court-judge

As you can see from the headline – it involves a set of care proceedings in which the parents (I have to remind myself not to use mother and father, as both parents have asked that their pronouns be they/their) had jobs which raise additional sensitivity. X is a primary school teacher. Y is a family law barrister who also sits as a Deputy District Judge – including making decisions in care proceedings.

A LA v X & Y and Ors (No 4: Welfare and Reporting of Judgments) [2025] EWFC 126 (09 May 2025)
https://www.bailii.org/ew/cases/EWFC/HCJ/2025/126.html

This is a summary of the findings made against them :-

At the heart of this case are children who the court has determined have been the subject of significant harm caused by their parents over an extended period of time which included a punishing regime of care for the children conducted by X that included refusing food to the children, leaving the children at home overnight, controlling behaviour, abusive (including racist) language, shouting and swearing, throwing objects, inappropriate punishment (such as standing against a wall, being isolated in bedrooms or outside for long periods, confiscation of spectacles, pushing soap into a child’s mouth, throwing a child into a water trough) and physical assaults (including hitting with objects, smacking, restriction of the neck, dragging and hitting heads together).  Y was aware of X’s behaviour and failed to protect the children.

I think most people would agree that if they knew that X was teaching their children they wouldn’t be happy about that, and that if they found themselves in care proceedings they wouldn’t want Y to be a barrister in the case and even less would they want Y to be the Judge.

Theis J made orders that the respective professional bodies for X and Y should be provided with the judgment and both X and Y are saying that they will leave those professions.

The Press, very understandably here, consider there to be a public interest in identifying X and Y, given those findings and the nature of the work both undertake.

The two children involved are 10 and 15, and their views about identification were sought. The obvious problem is that in identifying the parents, one also identifies to anyone who knows the children who those children are. And if the Press report the case, that information about the children, easily linked to them, stays around on the internet (or whatever ghastliness replaces it in 25-50 years) forever.

That’s the reason why generally, Courts do not name parents who are involved in care proceedings – there are some very rare exceptions. The former President of the Family Division took the unusual step of naming a mother in family law proceedings whom he found to have made and continued to circulate false and very serious allegations against the father so that the father could be publicly exonerated. Sometimes it happens where there are well-publicised criminal proceedings. Sometimes it emerges when the parent has been committed to prison for contempt of court, where the rules are that the person being committed HAS to be named. There was a case in the last few years where the Court identified a sitting MP as having been the subject of very serious findings of domestic abuse as being in the public interest (I can’t recall if there were children in that case though)

(To pick a lane really quickly – I do think that just as Caesar’s wife has to be beyond reproach, a Judge who sat or sits in family court cases who is the subject of these findings crosses a different Rubicon to most of the parents who come before the family court. It is, in my mind, a different scenario, and there’s a public interest in naming Y for that reason. It is hard to work out a way to do it without adversely affecting the children who have already suffered so much)

Following her discussions with B and C in early January 2025, the Guardian reports they said they knew that their parents were upset with them telling people about their experiences. In her January 2025 report the Guardian stated ‘All the children want is for their parents to say ‘sorry’. Unless there is an admission of fault from the parents to the children, I do not feel that there will ever be repairs to their relationships’. She reports the children want to be able to say what happened to them. In that report the Guardian stated ‘I have taken into account the fact that the children’s right to family life has already been restricted as a result of these proceedings both due to the parents’ insistence that [B] and [C] did not see their [sibling A] for nearly five months and the fact that both parents and other family members (including all four grandparents) have chosen not to have any contact with them…This has caused the children distress, and they are still in the process of recovery from the separation and the impact of the proceedings’. In her analysis she sets out her concern that the parents will continue to try and manipulate the narrative that the children have not told the truth, that the only account in the public domain is an inaccurate and misleading one and a published judgment with the parents being named would give them concrete information about what happened to them. Having balanced the relevant considerations she came down in favour of the parents being identified in the judgment as she considered ‘by ongoing secrecy and silence [B] and [C] will not be able to defend themselves against the parents’ clear plans to revile and malign them publicly and privately. The parents’ view is clear in this sentence [in the December e-mail], ‘the family court has a skewed view of the evidence and values children’s accounts above anything else’. The report notes the parents had purchased gift tokens for the children at Christmas and sent a card that had been given to them.

In a very long and considered judgment, Theis J came to the decision that the parents should not be named (not without hesitation)

Balancing each of these competing rights and considerations in this very unusual and complex set of circumstances I have, not without some considerable hesitation, reached the conclusion that the parents should not be identified by name in these proceedings for the following reasons.

(1) I recognise the Article 10 consideration are compelling due to the nature of the roles held by both parents and the serious nature of the findings of abuse and failure to protect made by this court in relation to both parents. I reject any suggestion of this being a slippery slope as each case has to be considered on its own particular facts. The significance of the roles held by each parent in this case and the way they previously portrayed their family life in the public domain adds weight to this consideration. This is compounded by the fact that not all information relating to the parents has been removed from the public domain and in relation to Y there has been a recent public statement by their regulatory body.

(2) I have carefully considered whether the public interest could be met by the reporting of their respective roles without their names. I am clear that X should be referred to as a primary school teacher and Y should be referred to as a barrister specialising in children cases who sat as a Deputy District Judge authorised to hear private law cases. That meets the public interest in the public knowing that the parents hold positions of professional responsibility in respect of children and were adoptive parents of a number of children. I acknowledge it risks leading to speculation in their respective professional fields of work and to them being identified by those who know them, which would itself give rise to a legitimate public interest argument in knowing who they are and the submission on behalf of the press regarding a name, relying on Re Guardian News and Media Ltd [2010] AC 697 [63], but that needs to be factored into the wider balancing exercise.

(3) Whilst the parents have not sought to rely on their Article 10 rights they have threatened to speak out about what they regard as the injustice in this case and the failings of the family court against which they make very serious allegations. Whilst the court acknowledges that they have recently said they don’t intend to speak about that they have not withdrawn the very serious allegations they make in the December 2024 email and there is the thinly veiled undercurrent to their position that it is contingent on them remaining anonymised. There is a public interest in the workings of the family court being transparent in the widest sense and the publication of these judgments will assist in that as will the details of the way the parents have conducted these difficult proceedings to the detriment of the children.

(4) Unlike in cases such as Griffiths the parents do rely on their Article 8 rights. Their evidence about their mental ill health and the impact on that and them more generally if they are identified is, if course, taken very seriously and has been factored in by the Guardian in the balancing exercise she undertook. However, whilst according it careful consideration it needs to be viewed in the context of a lack of any independent evidence, the evidence the court has is entirely self-reporting. No Part 25 FPR 2010 application has been made by the parents or on their behalf to secure such independent evidence, even though it has been known for some time this is an issue raised by the other parties. The court cannot ignore that whilst the parents have been distressed, as Y was during this hearing, and have had to manage wider family ill health, they have continued to actively and effectively engage in these proceedings, sell their home, move area and are now making proposals about contact. So, whilst the risks to the parents’ mental health can’t be discounted it has to be seen in this context and, in my judgment, should not be given significant weight in the balancing exercise.

(5) The parents’ conduct in these proceedings has cast a long shadow over this case and has been very harmful to the children. When it suits them the parents present themselves as victims, yet have then displayed behaviour that demonstrates their position and way of operating has barely changed and shows they can behave in an aggressive and threatening way, similar to the behaviour described by the children. From the children’s perspective the December 2024 email was a harmful document. It made serious allegations against the professionals who have provided the children with consistent and vital support at a time when the children had been wholly let down by their parents, not only through the abuse when they were in the care of their parents but through the effective abandonment of them by their parents from January 2024 when they described their experience of being cared for by the parents. The parents operate a divide and rule approach to parenting in which there is no middle ground. The tone and content of the statement from E, the way they referred to A as a ‘disease’ and the way they have ostracised D following him recently contacting the police to corroborate the abuse from their parents the children have described are examples. It is a deeply damaging way of parenting their own children. This is especially so bearing in mind the child focussed professional roles held by each parent and the way they have presented their family life.

(6) The parents’ repeated complaints about how they have been treated in these proceedings lack any balance or foundation. They have had every opportunity to participate effectively in these proceedings through, for example, extensions of time being granted, remote attendance by them at hearings and applications being determined without delay. They each had the benefit of separate experienced legal teams consisting of specialist solicitors and leading and junior counsel until they dispensed with their services hours before the December judgment was going to be handed down. By not attending the December hearing they caused further delay and the content of the December 2024 email resulted in very difficult discussions having to take place with the children about the impact of that email, the contents of which have still not been withdrawn by the parents but is asked to be seen in the context of the distress the parents were suffering at the time. In their January 2025 position statement they blame the professionals for not asking them about the email, once again avoiding responsibility for their actions. Following the withdrawal of their previous legal team the court has taken every opportunity to encourage the parents to seek further legal representations which they did in March.

(7) The children’s Article 10 rights are engaged to the extent the evidence demonstrates that having some wider validation of the court’s conclusion about their accounts of the parent’s behaviour will enable them to have a voice and not feel silenced as the local authority consider they feel they have been. This can be achieved for the children by the disclosure of the judgment to identified individuals who are important to them, are not limited to those chosen or selected by the parents but are those who the Guardian and local authority also consider are important.

(8) One of the most troubling aspects of this case is the children’s Article 8 rights and how they should be factored in. As the cases have made clear their welfare is important, but not paramount. The children are currently placed with their fourth foster carer, B has recently had to leave the placement for a short period but is back there with C and the stability of that placement is under active assessment. A and D are not living with them. The two recent reports by the Guardian capture the difficult analysis of their welfare needs and demonstrate why she is better placed than the parents to provide that analysis, as the parents can only view it through the lens of their own interests. The Guardian recognises that in most cases the interest of the children who have been the subject of abuse are best protected by them and that information remaining confidential. However, in this case there are welfare arguments in favour of the parents being identified. The Guardian considers that it could help provide them with some validation and balance to the repeated claims by the parents that the children have not told the truth. That benefit needs to be balanced with the consequences for the children of the parents being identified and detailed information about their lives being in the public domain at the time when they are still coming to terms with their current circumstances, their varying wishes to have contact with the parents and the wider family, the stability of their placement, navigating their relationships with their siblings and their own longer term futures. These important welfare needs are likely to be better met if this was done with their circumstances, and their parents not being identified. It would enable any steps to be taken to re-connect with their parents and/or the wider family in more private circumstances, but, importantly, with those key people being made fully aware of the findings made by the court. This is more likely to meet the children’s welfare needs without having to deal, in addition, with the added complication and pressures of their parents being identified. I fully recognise the risks that the recent steps taken by the parents to initiate contact with the children may be strategic. That would not be inconsistent with their litigation conduct to date. However, from the children’s welfare perspective they should have the opportunity for that to take place and have their wider more immediate welfare needs met and prioritised.

(9) In weighing this in the balance, I have to recognise that there is a real risk that the parents may be identified following the conclusion of any regulatory process which may result in the delicate balance in these proceedings falling in favour of the parents being identified. The local authority have undertaken to take any steps needed in relation to that issue. I recognise that this may not bring the finality that the children sought but it is a reality of their position that needs to be weighed in the balance. If such circumstances arose it would, in my judgment, be at a time when the children would be older, have had the opportunity to receive the specialist support they need away from the glare of any inevitable publicity and the intensity and pressure of these proceedings. In addition, it would be in the context of any conclusions reached regarding the regulatory process. The children’s primary welfare need now is to secure the stability of their placements, relationships with each other, their siblings, parents and wider family with those individuals being informed of the outcome of these proceedings and furnished with a copy of the judgments. These important welfare considerations would be supported by the experience and consistency of the current social work team who are known to and know each of the children. In my judgment each of those important welfare needs could be put at risk if the parents were identified, as the resulting publicity would detract from that specialist support in those critical areas of their welfare being available. Such publicity also avoids the risks for the children of others who they don’t know knowing about them before they have the chance to develop relationships in education, employment or with friends. As the Guardian put it that would be yet another extra hurdle their peers don’t have.

(10) The balancing exercise in this case is exquisitely poised and there are compelling and powerful factors on each side of the scales. There is no right answer but whilst the public interest considerations are strong in this case they are not at any welfare cost to these particular children whose interests, bearing in mind their particular vulnerability, are important.

(11) Therefore, having undertaken that careful balancing exercise between the competing rights that are engaged I am satisfied that the interference in the Article 10 rights is justified and proportionate in the particular and unusual circumstances of this case by the Article 8 rights of these children through the prism of their welfare needs.

(12) This carefully calibrated analysis is about the very difficult balance that needs to be struck, which fully engages with the very important public interest considerations outlined above and also the welfare needs of these particular children and their particular circumstances, which this court needs to carefully weigh in the balance. This case demonstrates the very difficult decisions the family court has to make and how it undertakes them.

There is no simple solution. It should be made clear to the children this is the court’s decision. The children bear no responsibility for it. The court has listened very carefully to what they have each said and taken that into account in considering their wider welfare needs. Each of the children, including A and D, have shown remarkable courage in managing the situation they have found themselves in. Having made the decision I have the focus now must be on each child’s welfare needs, away from the spotlight of the court.

The parents then made applications to amend the Transparency Order that had been made, seeking to add to it that the Press should not be allowed to say that X had stood as a candidate for the Reform party and had stood three times for local and national elections. Theis J ruled against them on that.

A Local Authority v X & Ors (No. 5: Transparency Order) [2025] EWFC 140 (20 May 2025)
https://www.bailii.org/ew/cases/EWFC/HCJ/2025/140.html

I suspect that the Press may want to appeal the decision not to name the parents – but it is to my mind a more difficult LEGAL appeal than the appeal from Williams J in the Sara Shariff case. Firstly, the Judge here had a very clear counter argument that identifying the parents would also identify the children and the impact on them, secondly it is a decision that goes along with the grain of current thinking rather than against it, and finally it is a judgment that more obviously grapples with both sides of the argument and does not to my mind open the door to an appeal based on perception of bias.

I would on a human and visceral level want X and Y to be named. I obviously don’t know the details of their childhood and their lives and struggles but on the face of it they have much more advantages than the majority of the parents who find themselves before the Family Court and as far as Y is concerned would have been extremely aware of the nature and issues of child abuse and exactly how corrosive this behaviour towards the children would have been and how to go about seeking help and their responsibility to act protectively no matter what their affinity and feelings for X.

But legally, more tricky.

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Deprivation of liberty and secure accommodation – the intersection of these

Posted on May 23, 2025 by suesspiciousminds

I think this case is a helpful reminder that using the inherent jurisdiction to place a child in a setting where their liberty is going to be restricted is not intended to be a different option on a menu, but a response to a situation in which a search for a secure unit has been made and is unsuccessful.

A Local Authority v LB & Ors [2025] EWHC 1264 (Fam) (25 May 2025)
https://www.bailii.org/ew/cases/EWHC/Fam/2025/1264.html

If a Local Authority wishes to place a child in secure accommodation, it can make an application to the court under s25(2) for an order permitting such a placement and the court can authorise the placement for a period of up to 3 months: see Regulation 11 of the Children (Secure Accommodation) Regulations 1991, and thereafter periods of up to 6 months. In this case it does not appear that any consideration was given by the Local Authority as to whether (a) they could make a case that LB met the criteria under s25 or (b) if they did so, whether there was secure accommodation that might be available for LB. Instead, it appears that the Local Authority made an application under the inherent jurisdiction of the High Court to permit the placement provider to impose restrictions on LB which had the effect of depriving her of her liberty. Thus, instead of exploring the statutory framework applied to children who abscond from care and provides protections for the child, this Local Authority appears to have bypassed that statutory framework by applying for an order under the inherent jurisdiction.

The question as to whether and if so, in what circumstances children in the care of a local authority can lawfully be deprived of their liberty in placements which are not classified as “secure accommodation” under s25 was considered by the Supreme Court in Re T (A Child) [2021] UKSC 35. In that case Lady Black, who gave the leading judgment said at para 1:

“The background to the litigation is the shortage of provision for children and young people (hereafter generally referred to simply as “children”) whose needs are such that they require special limitations on their liberty. Some of these children need to be placed in a secure children’s home but no place can be found for them in one of the small number of approved secure children’s homes that there are in England and Wales. Some would be likely to meet the criteria for placement in a secure children’s home, but would be better served by highly specialised therapeutic care of a different kind, albeit still with their liberty strictly limited”
I fully accept that there is a desperate shortage of appropriate placements for children who need highly specialised therapeutic care and that there is also, separately, a shortage of placements for children who need secure accommodation for other reasons, notably because they repeatedly abscond from local authority care. Hence, in many DOLS cases, there local authority provide evidence that it believes that a child would meet the criteria for s25 accommodation but, despite conducting a search, the local authority has not been able to locate any appropriate placement for such a child. Equally, in other cases I have dealt with in recent years the local authority case is that it needs a DOLS order to bridge a gap in time until s25 accommodation becomes available or even that a child has such specialist therapeutic needs that s25 accommodation is unsuitable because such specialist therapeutic interventions cannot be provided within s25 secure accommodation. However, none of those factors apply to this case because, as far as I can determine, no steps have been taken by the Local Authority to consider whether LB meets the criteria for s25 accommodation and, if it is thought that she does meet the criteria, whether any appropriate s25 accommodation is available for her. Thus, as a starting point, it does not appear to me that the factual circumstances set out by Lady Black apply in this case.

I consider that, consistent with the approach taken by the Supreme Court in Re T, s25 accommodation and DOLS orders should not be seen as alternatives to be used by local authorities at their option. Where a child could be accommodated in secure accommodation under the s25 route, that option should be used where available. Use of the inherent jurisdiction should thus be limited to cases where a local authority provides clear evidence to explain why the s25 statutory framework, with its protections for the child, has not been used.

The Court identified the various problems with the LA application – that they had not explored secure, they had not shown why the child would be likely to suffer significant harm if the inherent jurisdiction were not used, and they had not demonstrated what the educational supervision portion required for Article 5 was going to be, and adjourned the application to allow the Local Authority the opportunity to remedy these deficiencies.

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Court of Appeal decision on whether deprivation of liberty of children is similar to vaccinations

Posted on May 1, 2025 by suesspiciousminds

We’ve been waiting for this judgment for a while – we knew the decision, but I’ve already seen a reported decision that stuck with the Lieven J line because this judgment wasn’t available, so it is very welcome.

J v Bath and North East Somerset Council & Ors [2025] EWCA Civ 478 (29 April 2025)
https://www.bailii.org/ew/cases/EWCA/Civ/2025/478.html

Basically, as people may know, the High Court was having a debate for ages and ages as to whether in a case where a child was subject to a Care Order or Interim Care Order the LA needed to apply to Court for the Court to authorise vaccinations if the parent objected, or whether they should just their powers under s33 of the Children Act to announce that they would go ahead with the vaccinations and it would be for the parents to apply to Court to prevent it. That finally got settled as being the latter course.

I was a little surprised to see the High Court deciding that the issue of depriving a child in care of their liberty should be considered analogous to vaccinations and that the LA should not trouble the Court with them in the most obvious cases (in essence, if it is apparent that the child’s safety and needs requires the deprivation then the LA should just authorise it themselves and only come to Court for the finely balanced ones. Cough cough Cheshire West says hello cough cough)

The Court of Appeal say here that the answer to the question, can the LA provide their own consent to depriving a child of liberty (i.e marking their own homework) is an emphatic no.

  1. Before turning to the substance of the appeal, it is helpful to be clear as to the language that applies to cases such as the present. The conventional word used to describe the circumstances in limb (i) of Storck is ‘confinement’, whereas ‘deprivation of liberty’ is the term used to describe a situation in which all three limbs are met and Art 5 is engaged [see Sir James Munby in Re A [2018] at paragraph 9]. It follows (as Ms Roper helpfully submitted) that what is being consented to in limb (ii) is confinement under limb (i) and not the overall deprivation of liberty. At a number of points in her judgment, the judge described the situation where limbs (i) and (iii) of Storck were satisfied as establishing that there is a deprivation of liberty [paragraphs 12, 15, 17, 26 and 33] and that the question is whether there is valid consent to that deprivation of liberty. In doing so the judge seems to have approached the question of consent under limb (ii) as a separate, and subsequent, step rather than as part of the overall, three-limb, evaluation, before which it can be said that there is an Art 5 deprivation of liberty, as required by Storck.
  2. Taking that point to the next stage, the exercise for the court in a DOLs application is to determine, if the circumstances do establish that there has been (or is to be) a deprivation of liberty that engages Art 5, whether the court should authorise it ‘in accordance with a procedure prescribed by law’ [Art 5(1)] and where the subject individual has been ‘entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court’ [Art 5(4)].
  3. Turning to the substance of the appeal itself, I am clear that the question of whether it is necessary for the court to authorise the deprivation of liberty of a child who is the subject of a care order, where the local authority consents to the child’s confinement, must be determined in accordance with the Human Rights Act 1998 in a manner that is compatible with the ECHR. Rather than analysing matters through the lens of the domestic law relating to the exercise of parental responsibility, or possible defences to potential civil litigation, it is the structure imposed by ECHR, Art 5 that must be applied. In this regard, the lodestar is the decision in 2004 of the ECtHR in HL v United Kingdom (Application: 45508/99) 40 EHRR 761.
  4. HL v UK concerned an adult who had, for many years, been resident at Bournewood Hospital as a consequence of autism and profound mental handicap. Following a deterioration in his behaviour during a period of home leave, he was admitted to hospital informally and, because of his apparent compliance, no proceedings were taken to detain him under the Mental Health Act 1983. Despite the benevolent motive underlying the care of the hospital, and the clear need for him to be cared for in a restricted regime, the ECtHR held that the circumstances amounted to a breach of Art 5 and that there had been a denial of access to any formal procedure for review or challenge of the care regime on his behalf. Having noted the striking lack of any procedures for his admission and continued retention in the hospital [paragraph 120], the court observed:
  5. Although HL v UK relates to an adult, the underlying emphasis on the ‘essential purpose’ of Art 5 and the importance of the ‘distinctive and cumulative protections’ offered by Art 5(1)+(4), must apply in equal measure to a child. The importance of HL v UK, and the court’s finding against the UK, is that it was following that decision that the DOLs provisions within the Mental Capacity Act 2005 were enacted in order to fill the lacunae (‘the Bournewood Gap’) in domestic law that had been identified by the court in Strasbourg. Baroness Hale described the position at paragraph 19 of Cheshire West:
  6. I have already set out Lady Hale’s conclusion at paragraph 56 of Cheshire West [paragraph 40 above], holding that, no matter how benign the intentions of the care-providing local authority may be, ‘the purpose of Art 5 is to ensure that people are not deprived of their liberty without proper safeguards, safeguards that will secure that the legal justifications for the constraints which they are under are made out’. The decision in Cheshire West is binding on this court, as it was on the learned judge. It is a decision that naturally flows from the ECtHR’s judgment in HL v UK, and it is determinative of the issue in this appeal. A child in the position of J in the present case, must be afforded the benefit of the checks and safeguards under Art 5(1), or separately (as HL v UK from paragraph 125 onwards makes plain) of access to a process in court under Art 5(4).
  7. The effect of the judge’s decision, where a local authority consents to the confinement by the State of a child in their care, would be to remove the case from Art 5, thereby avoiding the important protection, safeguards and independent authorisation by a court that would otherwise be required. Irrespective of whether it may be said that, as a matter of domestic law, a local authority may give valid consent if they hold parental responsibility under a care order, HL v UK and Cheshire West make it plain that it is simply not open to the State, through the local authority, to avoid the constraints of Art 5. As Lady Hale stated: ‘In the end, it is the constraints that matter’.
  8. The judgment below does not refer to HL v UK or to the relevant passages in this context in Lady Hale’s judgment in Cheshire West. The absence of connection with those core sources of authority may explain the judge’s difficulty in seeing ‘what the point of a DOLs order is on the facts of a case like J’s’.
  9. It follows that Keehan J was entirely correct to hold, as he did, in Re D (No 2) that the answer to this central question is ‘an emphatic “no”‘, and that Lieven J’s analysis in the present case, was in error. That error, in short, was to focus on whether, as a matter of domestic law, a local authority may provide ‘valid consent’ in order to avoid engaging limb (ii) of Storck. If, instead, the focus had been, as it should have been, upon the overarching purpose of Art 5, as determined by HL v UK and Cheshire West, the inevitable conclusion would have been that, irrespective of the domestic law relating to parental responsibility, the State can never give valid consent in these circumstances.

A really helpful reset, much welcomed by many of us in the legal community.

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Intermediaries Court of Appeal clarification

Posted on April 24, 2025 by suesspiciousminds

M (A Child: Intermediaries) [2025] EWCA Civ 440 (10 April 2025)
https://www.bailii.org/ew/cases/EWCA/Civ/2025/440.html

Court of Appeal dealing with a case in which the trial Judge had refused an intermediary, following a line from the High Court authority on intermediaries, suggesting that it would be ‘exceptionally rare’ for an intermediary to attend throughout and there should be ‘compelling reasons’ if so.

The Court of Appeal say that Judges considering applications for intermediaries should apply the Practice Direction and amended FPR and not import legal principles from other jurisdictions such as crime (as had been done in the High Court authority – which is now no longer an authority…)

As the present case illustrates, the Family Court is under pressure. In care proceedings, the statutory framework provides that proceedings must be timetabled for disposal within 26 weeks, with time only being extended where that is necessary to enable the court to resolve the proceedings justly: Children Act 1989 sections 32(1) and (5). The President of the Family Division, as Head of Family Justice, has approved a number of necessary initiatives to support the court in carrying out its obligations. At the same time, there is a risk that pressure in any system is disproportionately felt by those least able to bear it. Whatever may have been the situation in the past, it is now understood that the court must, so far as practicable, adapt its procedures to achieve fairness for vulnerable individuals, in particular by ensuring that all participants are on an equal footing in the light of the importance and complexity of the issues.

It was this appreciation that led Parliament to introduce new provisions to the FPR on 27 November 2017. They appear as Part 3A and Practice Direction 3AA. They were further expanded in 2022 to reflect the Domestic Abuse Act 2021 in the case of victims of domestic abuse. These provisions are a comprehensive code, designed to strike a fair balance between the rights of vulnerable individuals and the demands of the system. They are of fundamental importance to the administration of family justice: Re S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8; [2022] 2 FLR 466; [2022] All ER (D) 55 (Jan), per Baker LJ at [38]; see also the foreword to the Family Justice Council Guidance on Neurodiversity in the Family Justice System for Practitioners of 30 January 2025, where Sir Andrew McFarlane P wrote that equal access to justice is fundamental to a functioning and fair system, and that the failure to recognise and accommodate neurodivergence leads to parties, witnesses and children not being able to participate fully within the family justice system.

Part 3A and Practice Direction 3AA provide the court with a framework. That is an aid to, and not a substitute for, the court’s own judgement about whether a person is to be regarded as vulnerable and, if so, what measures may be needed to achieve procedural fairness. Some aspects of the provisions concern children, victims of abuse, or protected parties who lack mental capacity. On this appeal, we are not directly concerned with these classes of individual, but the underlying principles are the same.

The court’s duty to identify any party or witness who is a vulnerable person begins at the earliest possible stage of the proceedings and continues until their resolution – FPR rule 3A.9(1) and PD3AA paragraph 1.3. All parties and their representatives must work with the court and each other to ensure that each vulnerable party and witness can participate in the proceedings and give evidence without being put in fear or distress: PD3AA paragraphs 1.4 and 3.1.

In a case where it is relevant, the court will ask itself these questions:

(1) Is a party or a witness a vulnerable person, having regard to the matters set out in FPR rule 3A.7 and the practice direction? – FPR rule 3A.3.

(2) If so, is the party’s participation in the proceedings (other than by way of giving evidence) likely to be diminished by reason of vulnerability and, if so, is it necessary in order to achieve a fair hearing to make one or more participation directions? – FPR rules 3A.4 and 3A.7 and PD3AA paragraph 1.2.

(3) Is it likely that the quality of evidence given by a party or witness will be diminished by reason of vulnerability and, if so, is it necessary in order to achieve a fair hearing to make one or more participation directions, as determined at a ground rules hearing? – FPR rules 3A.5 and 3A.7 and PD3AA paragraphs 1.2 and 5.2.

A decision about whether a person is vulnerable calls for a broad evaluative assessment that takes account of the characteristics of the individual and of the proceedings. If vulnerability exists, it is a gateway to the making of a participation direction, but there is a wide spectrum of vulnerability, and the court will carry forward its assessment of the nature and extent of vulnerability in the individual case into its assessment of whether participation in proceedings or the quality of evidence is likely to be diminished as a result. At that stage, it considers the range of participation directions available to it and determines which ones may be necessary in the circumstances of the individual case.

In proceedings involving a vulnerable person, the court order must set out the reasons why participation directions have been made or not made – FPR rule 3A.9.

These are case management directions that are firmly in the province of the judge. A considered decision within the framework of FPR Part 3A is most unlikely to be disturbed on appeal.

I turn to the provisions relating to intermediaries.

Intermediaries

Intermediaries are communication specialists. In family proceedings, their function is to communicate and explain questions asked of vulnerable people or answers given by them – FPR rule 3A.1.

Where the court has found that a person is vulnerable and that their participation and/or quality of evidence is likely to be diminished as a result, it comes to what is likely to be the critical question, namely whether it is necessary to approve the appointment of an intermediary in order to achieve a fair hearing, as opposed to making some other form of participation direction.

Intermediaries are not expert witnesses, and are not appointed under Part 25 of the FPR. However, the decision about whether an individual should have an intermediary is an important matter, and the court should approach it with formality. FPR rule 3A.10 supposes that an application will be made in the document that originates the proceedings or by a later Part 18 application. The application must explain what measures are sought and why each of them would be likely to improve participation or the quality of evidence – FPR rule 3A.10 and PD3AA paragraph 6. If the court exercises its power to dispense with the filing of a formal application, it should ensure that it has this information by other means.

If an intermediary assessment is granted, and the recommendation is for intermediary assistance, it should again be made clear what actual order is being sought. In particular, there should be clarity about what hearings or parts of hearings an intermediary would attend, and whether it is suggested that an intermediary is required for other legal meetings inside or outside the court building. The provision of a draft order will assist. Breaking matters down in this way reduces the risk of unsound ‘all or nothing’ orders being made. The court will no doubt seek to avoid making repetitive orders, but may give directions that last for certain hearings only, and revisit and revise directions in the light of experience.

The rules and practice direction show that (as with other participation directions) the primary focus of an intermediary appointment is to assist with communication within the courtroom, and in particular to enable the vulnerable person to give their best evidence. However, as seen from FPR rules 3A.1 and 3A.4, PD3AA paragraph 3.1, participation directions are not limited to these functions. The last of these provisions requires that, when considering whether the participation of any party or witness in the case is likely to be diminished by reason of vulnerability, the court should consider the ability of the party or witness to

“a) understand the proceedings, and their role in them, when in court;
b) put their views to the court;
c) instruct their representative/s before, during and after the hearing; and
d) attend the hearing without significant distress.”
Moreover, a party’s ‘participation in proceedings’ includes giving instructions and making written statements, a process that requires questions and answers. The witness statement of a witness called to give oral evidence will stand as their evidence in chief unless the court directs otherwise – FPR rule 22.6(2). Under FPR rule 3A.5, the court must consider whether the ‘quality of evidence’ given by a party or witness is likely to be diminished by reason of vulnerability: this cannot sensibly be limited to oral evidence. There may therefore be circumstances in which an order for intermediary assistance will be sought for a legal conference away from court, but this will call for a separate exercise of judgement. The fact that participation in proceedings extends beyond the courtroom does not absolve the court from considering whether an intermediary is in fact necessary for that purpose in the individual case. As noted above, the experience of a vulnerable person in a solicitor’s office, where matters can proceed at their own pace, is likely to be different from their experience of a more formal courtroom setting, and what is necessary in one setting may be unnecessary in the other.

In making its judgement about vulnerability and participation directions, the court must have regard in particular to the matters listed in FPR rule 3A.7 when deciding what is necessary in the case before it. There will often be a cognitive assessment. If it recommends the use of an intermediary, it must evidence why that is necessary and explain why alternative means are inadequate. It would be helpful for the report to consider the party’s participation at case management hearings, legal conferences, and when giving evidence. If the court then approves an intermediary assessment, the cognitive report should be supplied to the assessor. The intermediary assessment itself will then form part of the evidential picture in relation to vulnerability and measures.

The court is also entitled to take account of the parties’ submissions, to whatever extent it considers appropriate. Advocates are expected to have the skill to identify and adapt to vulnerability, and their submissions on the measures needed to ensure a fair trial form part of the information on which the court can act. The advocate representing a vulnerable person or seeking to call them as a witness may be well placed to assist the court from their own interactions with the vulnerable person, but it would be inappropriate to require evidence from them in the form of a witness statement. As the process is a collaborative one – PD3AA paragraphs 1.4 and 3.1 – the court may also benefit from submissions made by other parties, who may also have their own interest in the decision. The local authority and Children’s Guardian will wish to ensure that the proceedings rest on firm foundations and, depending on the case, individual parties may have their own perspectives.

Decision-making about intermediaries should not be protracted, and the court’s conclusions should be capable of being expressed quite shortly.

The Court of Appeal specifically say that the references to criminal authorities in the Lieven J case were ones that they did not find helpful

I do not consider the decision in Thomas to be an aid to the interpretation of Part 3A of the FPR. Part 3A was the product of the Vulnerable Witness and Children Working Group, whose final report in February 2015 heralded a greater awareness of the needs of vulnerable persons in family proceedings. The guidance in Thomas drew on the 2015 Criminal Practice Direction, which provided at 3F.13 that directions to appoint an intermediary for a defendant’s evidence will be rare and, for the entire trial, extremely rare. These references did not appear in the Criminal Procedure Rules 2020, nor in the current 2023 Criminal Practice Direction, which addresses intermediaries at 6.2.

and that:-

  1. There is in any event no warrant for overlaying the test of necessity with concepts of rarity or exceptionality. Frequency is not a test, and nor is exceptionality. Similarly, the introduction of tests of “compelling reasons”, or of adjournments for lack of an intermediary being “unusual” or “very unusual”, beckon the court to short-circuit its consideration of the evidence in the individual case.

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Section 37 only applies to children subject to the proceedings

Posted on April 24, 2025 by suesspiciousminds

I always love when an issue comes up that in the course of the Children Act’s thirty-six year history just hasn’t happened before.

E (Section 37 Direction) [2025] EWCA Civ 470 (16 April 2025)
https://www.bailii.org/ew/cases/EWCA/Civ/2025/470.html

In this case, the Local Authority were involved in care proceedings in relation to a child E, who was less than a year old. The mother had been staying at her sister’s home (A) and A had children of her own. In the course of a hearing about E, allegations came to light about the state of A’s home.

Put down anything that you’re eating. I’ll wait.

At the end of the case management hearing, the guardian’s solicitor informed the judge that she had been instructed to raise a further issue concerning A and her children, and to seek a s.37 investigation. At the judge’s request, M and her counsel then withdrew from the court room. The guardian’s solicitor informed the judge that she had been told that the conditions in A’s house had not improved but, if anything, had got worse. She told him that there was an allegation of A accidentally hitting one of her children with a fishing rod, and a health visitor’s report of faeces in the kitchen sink, fleabites on the children and concerns about domestic violence. She then added: “I am told that there is a gun in the house”. 

Understandably, the Guardian was very concerned about A’s three children, aged 4, 2 and 12 weeks. The Court asked counsel for the LA to go out and take instructions – the social work team for A were a different team to the one looking after A’s children.

After a break, counsel informed the judge that her solicitors had confirmed that there was a record on the files of a health visitor seeing a gun at the property, that the police had undertaken a joint visit with social workers and had not seen a gun. The following exchange then took placed between local authority counsel and the judge:

“Counsel: So the local authority say that they are responding to the concerns in a proportionate way. There was a strategy meeting last Thursday and there was a multi-agency discussion. They are going back to the police to check if there was a proper sweep of the home, but, on the joint visit, there was no evidence of firearms. They would accept the section 37. If it is directed, of course, they have to, but they are not issuing at this stage because they are working with the family, with A, to try and ensure her children’s safety and there is a real concern that, if this report is directed within these proceedings — issues about confidentiality because M is not aware of the extent of or I think may not be aware at all of domestic abuse in her sister’s relationship, and certainly that is a concern that I would advocate on behalf of the local authority, that these are children really that are outside the ambit of these proceedings. I appreciate that their welfare has come to the fore of what we know about M and —-
Judge: The local authority know what section 37 says, don’t they?
Counsel: Yes.
Judge: They understand the basic principle of section 37.
Counsel: They are looking to see whether a supervision or care order should be made in relation to these children, but they say that effectively, in this pre-proceedings stage in relation to A, they are not at the threshold to issue proceedings. They are working with her, with the safety plan, with the friend, multi-agencies involved. The police have been involved and are going to be asked to be involved again to double-check the status of the firearm that was seen by the health visitor, and they are looking to encourage and support A to make decisions whereby this violent relationship that she is beginning to disclose is ended. But we are in the hands of the court, so I accept that the court has the powers obviously to direct the report and to make the order that you have indicated you may well do.”
The guardian’s solicitor responded that the guardian was extremely concerned about A’s three children and had instructed her to ask that an interim supervision order be made.

The judge then delivered a short judgment, which has also been transcribed. He recorded that, at the earlier hearing on 27 January, he had indicated to the local authority that he was anxious about the welfare of the three children, and had made it very clear that he would be enquiring about them because it seemed to him that “there was scope for public law proceedings to be considered”. He summarised the latest concerns which had been reported to him that morning. He recorded the local authority’s position that they could not stand in the way of a section 37 direction but that they opposed an interim supervision order because they were still working with the family.

The judge then said that “the law in respect of this sort of issue is straightforward and settled”. He recited section 37(1) and added: “that is settled”. He summarised the provisions of section 38(1)(b) and observed:

“The information that I have received from the guardian clearly meets that threshold. A firearm, faeces, fleabites and accidental injury against the background of a mother who has engaged in a relationship that might be domestically abusive is, in my judgment, interim threshold open-and-shut.”
The judgment then concluded as follows:

“8. I have got to consider whether I should make an interim care order or an interim supervision order. This case, in my view, falls squarely within the interim supervision order bracket on the strict proviso that, within the next 24 hours, an urgent search of this property is undertaken to make sure that there is no firearm present. If a firearm were found to be present and not removed, that would be threshold, in my judgment, for an interim care order to be made to make sure that the local authority took on responsibility for making this property safe, but I am optimistic that the professionals will do their job and that will not be necessary.

  1. I am going to give the local authority eight weeks to complete their section 37 report. The interim supervision order is made for the same period of time. The section 37 report is not to be disclosed to the mother in the main proceedings to maintain confidentiality. The guardian, of course, is automatically appointed in respect of the three children for the duration of my order, if my understanding of the rules concerned is correct and she can produce a position statement in advance of the hearing in eight weeks’ time, which I will now try and set.
  2. I should say that nothing that I am saying in this short ex tempore judgment should be perceived as being critical of the local authority. This social work team are very well respected in this court, but I am concerned about what I have heard and, at the end of the day, decision-making is a matter for me when it comes to Children Act matters and I am just doing what I think is correct to keep these children appropriately safe.”

Given that this case came before the Court of Appeal and how I opened this piece, do we think that the Judge was right in his summary that the law in relation to this is “straightforward and settled”?

The appeal turned on this legal question :-

In the wording of s37(1) – when the Act says “Any child” does it literally mean “any child” or does it mean “any child about whom there is a live application before the Court?”

“Where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made with respect to him, the court may direct the appropriate authority to undertake an investigation of the child’s circumstances.”

And can a Guardian representing Child A properly invite the Court to make a s37 order and ISOs about three children who are not part of the proceedings?

And subsequently, was the Court wrong to make an interim supervision order under s37 when the parents of those three children had no idea whatsoever that this was even under consideration?

The Court of Appeal were understanding that the Court was very worried about these three children, but on those three questions they basically say – a s37 ‘any child’ has to mean ‘any child about whom the Court is being asked to make decisions about their welfare’ , that the Guardian did not have locus to make such an application, and that it was procedurally unfair to make ISOs when the parents were completely unaware.

Discussion and conclusion

I fully share the judge’s concerns about these three young children. The reports in the social worker’s initial statement about conditions at A’s house were very alarming and it was entirely understandable that he asked to be updated at the hearing on 10 February. As I observed during the hearing, Ms Goss and guardian also acted out of concern about what had been divulged about the circumstances of the three children. As noted above, the guardian’s duties under FPR rule 16.20 and PD16A paragraph 6.6 extend to advising the court on such matters as the court may direct and about which the guardian considers that the court should be informed. To that extent, the guardian here was acting in accordance with that duty.

But I conclude that in taking steps he thought necessary to protect the three children, the judge misunderstood the scope of s.37. Furthermore, in his anxiety about the three children, and placing them under interim supervision orders, he overlooked the need to ensure that the procedure he adopted was fair.

At first glance the interpretation of section 37 proposed by the guardian and adopted by the judge is tenable. But on closer scrutiny, I conclude that it is wrong, for the following reasons.

First, there is the language in the subsection. If one focuses only on the words “any child”, one might conclude that the power extends to any child who comes to the court’s attention during the proceedings. But it is necessary to look at the whole phrase – “any family proceedings in which a question arises with respect to the welfare of any child”. In my view, that plainly means “proceedings in which a question arises for determination about the welfare of a child”. It does not mean “proceedings in which the court becomes aware of a concern about the welfare of a child”.

(Italics mine for emphasis)

Whilst it is significant that since the implementation of the 1989 Act there has been no reported case in which a court has made an order under section 37 in respect of a child who was not the subject of the proceedings, that is not by itself decisive. Conceivably, there may be unreported cases in which this has happened. The fact that the judge in this case thought that the power extended to other children – and did not feel it necessary to address the possibility that it did not – suggests that it is at least possible that other judges and lawyers may have adopted the same interpretation in circumstances which did not lead to any reported judgment. But that is not how the provision has generally been understood.

The passages cited above from the judgments of Wall J in Re CE (Section 37 Direction)¸ Wilson LJ in Lambeth LBC v TK and KK, and McFarlane LJ in Re K (Children) all indicate that the purpose of a section 37 direction is to enable the court to obtain a report about the child who is the subject of the proceedings. It is, as Wall J said in Re CE, “a means of assisting the court in its assessment of the options available for dealing with the child”.

The paradigm situation in which a section 37 report is ordered is in the course of proceedings about a child under Part II of the Act. In most proceedings, where the court concludes it needs information about the welfare of the subject child in order to decide whether to make orders under section 8(1), it orders a report under section 7. But when a judge becomes concerned that the child’s circumstances are such that it may be appropriate for the child to be made subject to a public law order under section 31, he has the additional power to make the direction under section 37. Section 37 thereby provides, in the words of McFarlane LJ in Re K (Children), “a jurisdictional bridge between private law proceedings under Part 2 of the Act, in which a local authority normally plays no part, and the public law provisions in Part 4”. Where after completing the section 37 assessment the local authority decides to start proceedings under Part IV, the bridge will have been “traversed” and the range of options available for dealing with the child will be expanded to include care or supervision orders. Where the local authority has decided not to start proceedings under section 31, those orders will not be available. But the report may still be of assistance to the judge considering the options for dealing with the child. It is for that reason that the information in the report must include not only the local authority’s reasons for so deciding but also details of any service or assistance which they have provided, or intend to provide, for the child and his family and any other action which they have taken, or propose to take, with respect to the child: section 37(3).

And then, on the later two points:-

Further or alternatively, whether or not the court was entitled to make the section 37 order in respect of the three children, and place them under a supervision order, I accept the local authority’s arguments under ground 2 that the procedure adopted in this case was unfair.

No notice was given to A or her partner that the court was considering making a section 37 direction and a consequential order under section 38(1). The cases in which an application in children’s proceedings can be made without notice are defined in FPR rule 12.16. They do not include applications for orders under Part IV. In Re L, supra, McFarlane LJ rejected an argument that a judge had acted outside her powers by making a section 37 order coupled with an interim care order without notice to the child’s mother. It is unclear to me whether the Court in that case was referred to the provisions of rule 12.16. But assuming that the decision in Re L is binding authority for the proposition that an interim order under section 38 can be made without notice, such a course should only be followed in exceptional circumstances.

So much is clear from a comparison with the procedure for making an EPO. The court has the power to make an EPO without notice. But that power must be exercised sparingly. As Munby J said in X County Council v B at paragraph 57(vii)

“Save in wholly exceptional cases, parents must be given adequate prior notice of the date, time and place of any application by a local authority for an EPO. They must also be given proper notice of the evidence the local authority is relying upon.”
The same approach is applicable when the court is considering whether to make an interim order under section 38 consequential to a direction under section 37. For the reasons set out above, I have concluded that there is no power to make such an order in respect of a child who was not the subject of the proceedings. But if there were such a power, save perhaps in wholly exceptional cases, the parents of that child would have to be given notice. In the present case, no circumstances have been identified to justify making the interim supervision order without notice to the parents. As a result, A or B had no opportunity to respond to the allegations raised by the guardian or make representations on the proposed orders.

Secondly, having decided to make an order without notice to A and B, the judge erred in failing to list the matter for an early hearing once notice had been given. In any circumstances in which a court feels it necessary to make an order without notice, there are strict requirements about making the order for a limited time and allowing the party against whom the order is made to make representations and seek to have the order varied or set aside. Contrary to the usual practice when an order is made without notice, the court here did not make the order for a limited period or fix the case for a further hearing when A and B could be present. The order would continue until the hearing 8 weeks later unless A and B applied under section 39 for it to be discharged.

Furthermore, as set out above, section 38(10) expressly required the judge, when determining the period for which an interim order under the section is to be in force, to consider whether any party who was, or might have been, opposed to the making of the order was in a position to argue his case against the order in full. Here A and B had no opportunity to argue the case at all. It seems from the transcript that there was no reference to this requirement at the hearing either by the advocates or by the judge.

Again, a comparison with the EPO procedure is instructive. As Munby J said in X County Council v B at paragraph 57(v);

“Where the EPO is made on an ex parte (without notice) application very careful consideration should be given to the need to ensure that the initial order is made for the shortest possible period commensurate with the preservation of the child’s immediate safety.”
Having concluded that the circumstances warranted making an interim supervision order without notice to A and B, it was incumbent on the judge to direct a further hearing be listed promptly to give them an opportunity to make representations.

Thirdly, the judge made the orders largely on the basis of what he was told in court. As set out above, the general rule in FPR rule 22.2(1) that any fact which needs to be proved by the evidence of witnesses is to be proved by their oral or written evidence does not apply to proceedings for an interim care or supervision order, or where otherwise provided by an enactment, rule, practice direction or court order: rule 22.2(2). In this case, a statement had been filed before the first hearing on 27 January in which evidence was given about conditions at A’s property. But there was no proper evidence about the matters raised orally by the guardian at the hearing on 10 February. The local authority counsel responded to those matters by telling the judge what her instructing solicitor had read from the computerised social services records. That was an insufficient evidential basis on which to make an interim order under section 38(1).

Furthermore, the judgment contained no consideration of the legal principles to be applied when considering whether to make an interim care or supervision order. A court considering whether to make such an order must consider the factors in the welfare checklist in section 1(3) of the Act, and evaluate the proportionality of the proposed interference with Article 8 rights, having regard to the principle that the court must always adopt the least interventionist course consistent with the child’s welfare. In this case, there was no analysis of these matters in the judgment.

Finally, the appointment of the guardian to represent the three children was ultra vires. It was not correct to say that the guardian was automatically appointed in respect of these children for the duration of the supervision order. The power to appoint a guardian is confined to (a) specified proceedings and (b) under FPR rule 16.4. Under s.41(6)(b), proceedings in which a court has given a direction under section 37(1) are only specified proceedings where the court “has made, or is considering whether to make, an interim care order”. Once the judge decided to make an interim supervision order, the proceedings were not “specified”. The purported appointment of the guardian was plainly not made under rule 16.4 because (1) the judge clearly thought he was making it following the section 37 direction and the interim supervision order, (2) the children had not been joined as parties to the proceedings, and (3) in my view could not conceivably have been joined as parties to these proceedings which concerned E.

These deficiencies in the procedure adopted in this case are not mitigated by the fact that the court only made an interim supervision order and not an interim care order. It is true that a supervision order is less interventionist than an interim care order, but that does not mean, as Mr Calway asserted, that the court was not making orders which led to any direct interference in parental responsibility. The making of any order under Part IV of the 1989 Act is an interference with parental responsibility. Furthermore, if the broader interpretation of section 37 contended for on behalf of the guardian were correct, it would have been open to the judge to make interim care orders or, if making interim supervision orders, to have imposed a direction under section 38(6) or under Schedule 3.

It is, of course, right that effective child protection requires untrammelled cooperation between all agencies. For that reason, where a judge in the course of proceedings becomes aware of circumstances which suggest that a child may be at risk of significant harm, he or she will consider taking appropriate steps to notify the relevant local authority. The judge here was rightly concerned about the three other children in the house. He was understandably anxious to know what steps the local authority was taking about them. Having considered representations from the parties to the proceedings, he would have been justified in allowing the disclosure of information from these proceedings to the social work team involved with the three children. But he was not, in my view, entitled in these proceedings to direct the local authority to carry out an investigation of the circumstances of the three children or to make them subject to interim orders under section 38.

It was for those reasons that I concluded that the appeal should be allowed and the section 37 direction and the interim supervision orders under section 38(1)(b) set aside.

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Shortfall in expert fees

Posted on April 24, 2025 by suesspiciousminds

Well, most Local Authority lawyers have been eagerly awaiting this decision and it is finally here.

There’s been a view for a while that when an expert report is commissioned and it is above the Legal Aid Agency benchmarking rates, then the Local Authority with their bottomless pockets should make up the difference. And of course the LAA benchmarking rates don’t always co-exist with market reality on what you need to pay an expert where the pool of relevant expertise is small.

Re K and Re S 2025 says nope.

And there’s also a new form of wording to be used in orders for expert reports.

I’m very grateful for all of the hard work done on this by the Experts Group, led by Barnet collating evidence from LA’s up and down the country.

K, Re & Re S (Legal Aid: Experts’ Fees) [2025] EWFC 100 (16 April 2025)
https://www.bailii.org/ew/cases/EWFC/HCJ/2025/100.html

And to be fair to the LAA who changed their guidance BEFORE the Court hearing

Amended Legal Aid Agency Guidance

The LAA has now amended its ‘Guidance on the Remuneration of Expert Witnesses in Family Cases’ so that it makes clear that it is not the intention of the LAA that local authorities should make up a shortfall in expert fees (other than in unusual circumstances) [para 2.4]:

‘2.4. The intention of the LAA is that once a prior authority is granted it should, other than in unusual circumstances, cover the full cost of the expert and the Local Authority should not make up shortfalls in the amounts requested by experts. The possibility of local authorities’ topping up fees is not a relevant consideration for the LAA prior authority decision.’
The revised guidance, which was issued in April 2025, also makes clear what criteria (exceptional circumstances) are to be met for the LAA to grant prior authority to instruct an expert where the fees or hours exceed those set out in the Remuneration Regulations or Guidance [para 2.2 and 2.3]:

‘2.2. In order to be granted prior authority for fees or rates higher than those listed in the Remuneration Regulations, you will need to demonstrate that the instruction of the expert involves exceptional circumstances. Exceptional circumstances are defined in paragraph 2(2) of Schedule 5 of the Regulations and are where the expert’s evidence is key to the client’s case and either:
a) the complexity of the material is such that an expert with a high level of seniority is required; or
b) the material is of such a specialised and unusual nature that only very few experts are available to provide the necessary evidence.
2.3. Scarcity can be demonstrated by providing alternative quotes or evidence of attempts to secure alternative quotes. Complexity can be demonstrated by providing a background to the case, either within the Letter of Instruction, or as a separate document. The detail may also be set out in the court order or provided by the expert in the breakdown of their estimate. When making a decision on whether exceptional circumstances are met and higher rates should be approved, the LAA will consider, in addition to the criteria above, the total costs of the work sought, the speed at which the work has to be completed, any identified shortage of experts available at all or within the timeframes required and any other exceptional reason.’
A checklist is included to ensure all relevant information is submitted to the LAA [para 3.26 and Annex 6]. Finally, the guidance explains that, whilst there is no formal appeal following a decision on prior authority, the LAA operates a system whereby they can be asked informally to review the decision [paras 3.22 and 3.27].

So that principle is extremely helpful

Some general principles

Having considered the issues involved, the experts’ group has endorsed the list of general principles proposed by Barnet and they are in the following terms:

‘i. Those seeking to instruct an expert should make all efforts to identify an expert with the requisite experience and expertise who works within the prescribed rates and the prescribed number of hours and can report within an acceptable timeframe.
ii. If such an expert can be identified then that expert should be preferred by the court absent any exceptional reason.
iii. A local authority should not routinely be considered as a source of funds to make good any shortfall in the instruction of an expert.
iv. A local authority should only be ordered to pay for the shortfall of an expert where the court is satisfied:
a. That there has been proper exploration of other experts who may be able to complete the work within the prescribed rates and for the prescribed number of hours.
b. That the application for prior authority that has been considered by the Legal Aid Agency has been argued fully and included all material relevant to the decision making of the Legal Aid Agency.
c. That the parties (including the Local Authority) have given proper consideration to the possibility of a claim for judicial review against the Legal Aid Agency.
d. That the reason given by the Legal Aid Agency for refusing to approve the application for prior authority was full and enabled the court and the parties to understand the reason for refusal.’
Template standard order

The experts group suggested a template for court orders made when approving the instruction of an expert where the hours or rates will exceed the LAA rates/hours. The terms of the template order have now been agreed by the LAA. Courts should henceforth use this template in order to record the decision in such cases in a uniform manner which is compatible with the need to give the LAA relevant information when considering any application for prior authority. The template agreed by the LAA is:

‘The following directions shall apply to the instruction of [name of expert]:
a. The lead for the instruction of the expert shall be [name].
b. The letter of instruction to the expert [as approved by the court today] / [to be agreed by the parties by 4.00pm on [date] and filed at court] must be sent the expert by 4.00pm on [date].
c. The issues in the proceedings to which the expert evidence relates are:
(i) [insert]
(ii) …..
d. The Court is of the view that the facts of the case are exceptional, as defined in paragraph 2(2) of Schedule 5 of the Regulations, and the experts instructed are essential to enable a fair and just conclusion of the proceedings because:
(i) [insert Judge’s reasons].
(ii) Complexity of material justifies appointment of a senior expert.
(iii) Material of specialised and unusual nature.
(iv) Confirmation of number of experts approached and reasons why that expert should be appointed.
e. The questions to be dealt with by the expert are [as set out in the draft letter of instruction] / [as follows: [insert]].
f. Permission is [not] given for the expert to see and assess the child[ren].
g. Permission is [not] given to call [name] to give oral evidence at the [final]/ [finding of fact] hearing].’
Concluding observations

I am most grateful to the LAA and to the experts’ group for considering this increasingly pressing question. It is apparent that some real progress has been made in clarifying the approach that the LAA intends to take to these cases in the future. In particular, the LAA has been clear that it is not its intention that a local authority should be expected to make up any shortfall, save in unusual circumstances. The template order should ensure that all relevant information is supplied to the LAA before it considers whether prior authority should be granted. Where there is a likely shortfall, then the general principles identified by the experts’ group are aimed at ensuring that the LAA has been provided with full information, that the internal LAA procedures (including any review) have been followed and the possibility of challenge by judicial review has been given reasonable consideration. Only then, when the court is satisfied that these other reasonable steps have been properly taken, should it turn towards the local authority as a possible source of additional funding.

The steps within the general principles should ensure that an expert is only to be instructed at a rate outside the prescribed rate or in excess of the prescribed hours where to do so is justified by some ‘exceptional reason’, and that, when applying for prior authority, the LAA has been supplied with full information justifying that decision. Whilst I endorse this statement of general principles, and I would urge courts and parties to apply them whenever the issue of funding of experts outside the statutory rates arises, I would suggest that an additional subparagraph (iv)(bb) should be inserted to ensure that full use is made of the option for informal review by the LAA:

(iv)(bb) That an application has been made to the Legal Aid Agency to review its decision under paragraphs 3.22 and 3.25 of the Remuneration Guidance.
Where any process of review may take time, and postpone the chosen expert starting work, a court should consider arranging (either by agreement or court order) for the local authority to cover any shortfall on an interim basis pending further consideration by the court once the LAA process, and any challenge, has run its course. In line with the express wording of paragraph 2.4 of the revised Guidance, the fact that the local authority may be covering the shortfall in the interim is not a relevant factor for the LAA when considering an application for prior authority.

It is to be hoped that these developments will lead to a very substantial reduction in the number of cases in which there is any question of a local authority covering a short-fall in expert fees in public law children cases.

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Finding of fact, child allegedly harmed in residential assessment unit

Posted on March 17, 2025 by suesspiciousminds

This is an interesting judgment about a finding of fact where the child was in a residential assessment centre with his parents when he was admitted to hospital as a result of a torn frenulum and other injuries including fractures were later identified.

That’s a really unusual situation, and it is not a surprise that the residential assessment centre not only gave substantial evidence but also were intervenors to the proceedings.

https://www.bailii.org/ew/cases/EWFC/HCJ/2025/54.html

 A, Re (Care Proceedings: Non-Accidental Injuries: Identifying the Perpetrator) [2025] EWFC 54 (14 March 2025)

It is an excellent judgment in terms of summarising and analysing all of the relevant authorities on non-accidental injuries and identifying a perpetrator as well, and would be an excellent starting point for anyone wanting to distill those authorities.

There were 4,000 pages of evidence, and the hearing lasted between 1st July 2024 and 24th July 2024. There was CCTV at the assessment centre, but viewing the tapes was inconclusive and it was established that there were blind spots in the CCTV coverage.

It appears that the baby was unwell when born (16 weeks premature) and had assisted ventilation for around 36 hours. There were concerns about his parents not visiting sufficiently in hospital. On discharge from hospital around three months later he was placed with his parents in a residential assessment centre.

Shortly afterwards, a mark was noticed on his leg and he undertook a medical examination:-

At 17.20pm on 25 November 2022 A’s parents were spoken to by staff at the Assessment Centre about the marks on A’s right leg and foot. A was taken to Hospital B where he was examined by a Paediatric Registrar. The Paediatric Registrar observed several marks on A which could be explained but also the following for which there was no explanation, namely: –

i) 1cm x 1cm x 1cm triangular red area, posterior and superior to the lateral malleolus of the right foot (the outer aspect of the right ankle).
ii) 1cm x 0.5cm red mark located on lateral surface of lower leg, superior to the lateral malleolus (above the right ankle).
iii) 1.2cm linear red mark on lateral aspect of right foot/5th toe.
iv) 0.3cm x 0.3cm red mark on left lower leg, medial aspect of the anterior tibia.
v) 1.5cm x 0.4cm red mark on left lower leg, lateral aspect of the anterior tibia.
vi) 0.3cmx0.2cm red mark on left lower leg, medial aspect of the anterior tibia.
vii) 1.6cm vertical linear red mark overlying Achilles tendon of left leg.
Each of the above marks were considered to be consistent with bruising. Father suggested that each of them could be due to tight clothing.
As a consequence of the above, A was admitted to Hospital B for observation and investigation. Those investigations did not include a skeletal survey.

A Strategy Discussion on 28 November 2022 concluded that there was no evidence of a non-accidental injury given the CCTV footage from the Assessment Centre and given a skeletal survey had not been deemed necessary. A was therefore discharged back to the Assessment Centre where he continued to be placed with his parents for residential assessment.

Then on Christmas Day :-

25 December 2022, at or about 21.36hrs M ran out of their family room with A in her arms shouting that A is bleeding from his mouth. F observed bleeding coming out from under A’s tongue. Despite this episode possibly indicating damage to the lingual frenulum, which Professor Fleming states is a marker for potential significant abuse by forceful feeding, it appears that after repeated failed attempts by staff to get through to 111, staff at the Assessment Centre gave up and no medical attention was sought for A

And then a further issue in January 2023

  1. 59. At approximately 16.00 pm on 12 January 2023, F was changing A when he noticed a large bruise on A’s right thigh which he drew to the attention of staff. The mark was placed on a body map and photographs were taken. At 18.30 hrs A was seen by a GP who advised attendance at Hospital B. There, A was assessed at 21.30hrs in the Paediatric Emergency department where the following was noted:-
  2. A had an ophthalmic review the next day which revealed no evidence of retinal haemorrhages. A had a skeletal survey whilst in hospital (see below).
  3. On 20 January 2023, M and F were arrested for GBH with intent. On the same day the placement at the Assessment Centre was terminated.

…However, the skeletal survey which the clinicians had ordered showed multiple rib fractures including multiple posterior rib fractures and a fracture of the left distal radius (bone in forearm). The fractures, particularly the posterior rib fractures, were considered by the clinicians to be suspicious of an inflicted injury.

That’s a lot to digest, but basically this child had either been in hospital or with his parents at a residential assessment centre, so how had these injuries occurred (and how had they not been seen at the residential assessment centre if they occurred there?)

On behalf of the Assessment Centre, their advocate in closing chose to answer a number of specific questions. They are as follows: –

i) Did the Assessment Centre fail to adequately supervise A’s bath time? It was submitted that when the family arrived at the Assessment Centre, they signed a “Working Agreement.” Paragraph 3 of the agreement included the parents agreeing to be observed by a staff member whilst undertaking all care tasks in relation to A. Paragraph 4 of the agreement says the parents should “report all basic care tasks with A to staff so this can be observed in person or via camera/or be recorded.” It is averred that the evidence demonstrates that the parents failed on several occasions to follow these important rules and principles. It is said that they failed on several occasions to verbally inform staff before starting to bathe A. The father told the court that the reason why he sometimes failed to wait for staff was because he just wanted to get things done quickly, because other residents might want to use the bathroom. It is submitted that he also told the court that he was always expecting someone to come up. Mr X (junior) gave evidence that when parents took A to the bathroom without informing Assessment Centre staff first, they usually went to the bathroom without adequate preparation for A’s bath. That meant that when staff arrived at the bathroom, they would have to go back to the family’s room to bring adequate items of clothing or whatever else was needed for A. This would usually result in A being left on his own with his parent or parents. One of the rooms, apart from the staff toilet, where there is no CCTV at the Assessment Centre is the bathroom.
(ii). Did the Assessment Centre fail to protect A adequately? It is submitted that it is wrong to assume that the Assessment Centre staff failed to protect A adequately. Evidence revealed there were occasions when the father was seen to be heavy handed or rough handed when handling A. Staff intervened on such occasions, advising the father to be gentler with A. It is submitted that the Assessment Centre was diligent in its observations of A and ensured any bruising, marks or injuries were evidenced by body maps and photographs, brought to the attention of the local authority, and that A was taken for medical attention at the GP, Hospital B or that medical attention was sought from 111 in relation to the mouth injury.
(iii) Did Ms H cause injuries to A on 4.1.2023? It is submitted that it is clear from the CCTV evidence of 4.1.2023 and the expert medical evidence in the proceedings that A’s injuries could not have been caused by Ms H.
(iv) Did the Assessment Centre staff cause A’s injury when they had sole care of him in the absence of his parents? It is submitted that the evidence has shown that A was looked after by the Assessment Centre staff on five occasions without his parents. On behalf of the Assessment Centre, the evidence of Ms N, Ms X (senior), Mr X (junior), Ms D, Ms S and others is relied upon. In evidence, the Assessment Centre staff have confirmed that there were always other staff members in the staff room whenever A was taken to the staff room. Hence, A was never truly alone when taken there. It is averred that evidence from Ms N revealed that the only time that A was truly alone with staff members was when he was taken to the GP for his immunisation; and this was because his parents were unable to wake up to take him to the GP for his appointment.

In terms of the evidence of the managers and senior assessors at the assessment centre, Henke J said this:-

i. Ms X (senior). Ms X (senior) is the Registered manager and company director of the Assessment Centre. She has been running the Assessment Centre for 8 years. When she gave her evidence, it was obvious that she had pride in the centre, was defensive of it and its practices. After all, the whole purpose of the centre is to safeguard, and A had been injured whilst staying there with his parents and she and the centre had much to lose. That said, I formed the view that she was ultimately a truthful witness who gave evidence upon which I could rely.
Ms X (senior) told me that she does not have any social work experience; Mr K was to provide a parenting assessment. The PAMS element of the assessment was to be conducted by Ms N. The PAMs assessment was not included in the Midway assessment. She had no direct contact with the parents.
In terms of observation in the placement, she told the court that the CCTV covered all areas except the bathroom. She accepted that there were blind spots in the parents’ room, namely behind the door and from the chest up by the room’s window. The CCTV did not have audio but there was a baby monitor. A member of staff should be present when all care tasks are carried out and parents are expected to notify staff if they intend to carry out such tasks. She had not reviewed the CCTV footage relevant to A’s stay at the placement because the police had taken it. At the time staff had seen the father rough handle A and had intervened. That was recorded in the logs which they had reviewed after A was found to have been injured. She had not asked any member of staff if they had caused injuries as staff had reported their safeguarding concerns. Staff had taken A into the office but there was always at least one other member of staff there. She could not countenance any member of staff having caused the injury. They had a safe recruitment policy
ii. Mr X (junior). Mr X (junior) gave evidence before me twice. He is Ms X’s (senior) son. He was the key worker who worked with the family. He had concerns about the tit-for-tat between the parents; about them not getting up early enough etc. The mother was overall gentle and caring but had to be encouraged to do tasks. The father could be gentle with A but he was also heavy handed when patting his back and touching him. You could hear the father on the monitor patting A’s back. He was mortified that A was injured on the Unit. Mr X (junior) actually broke down in tears when giving evidence and was clearly devastated at what had happened but also, I considered during his first time in the witness box, defensive of the Unit and worried about reputational damage. When he gave evidence for the first time he had not seen the CCTV footage of the time A was at the Unit because it had been in the possession of the police. When he returned to the witness box for the second time, he had had the opportunity to view selected parts of the CCTV. Having done so he had to accept that there were two occasions when A had been in the bathroom with his father without supervision in January 2023. Mr X (junior) accepted in cross-examination on behalf of the mother, that the father had a habit of not reporting that he was going to carry out a care task before he did it. However, in cross-examination by the father, he had to accept that on 4 January 2023 the father had said over the monitor that he was taking A for a bath. I got the impression from listening to what the witness said and the way he said it, he had informally relaxed supervision of the father with A because he did not consider A would come to harm in his care and that he could leave him to bath his son. I have asked myself why then did his log entries not reflect that conclusion or the lack of supervision on two occasions. I have decided that there is only one answer to that question – that is that he knew the tasks should be supervised and that was what the local authority expected of the Unit. What had happened was not consistent with the 24/7 monitoring and supervision the local authority had requested of the placement. I consider that Mr X (junior) was a defensive witness. When he gave evidence on the second occasion, he did not appear to me to understand the import of two occasions when there was no supervision or of his log not being accurate on those occasions.

[I pause here to say that residential assessment centres are a scarce resource – demand for them is greater than supply, and that they are a very expensive resource – that’s not to contend that they are not value for money, but just that in cost terms they are many tens of thousands of pounds. If there are such failings about lack of supervision and inaccurate record-keeping, there’s at least a question as to whether they should have been identified here so that Courts, parents and Local Authorities considering their future use do so on an informed basis… There is some later information about an Ofsted report which could be used as a sifting mechanism, and it may be that there’s a judgment to follow about the decision to anonymise]

The findings :-

I find that there was an agreement between the local authority (who were paying for and who required the assessment) that the Assessment Centre would monitor A 24/7 within the placement. However, in February 2023 Ofsted issued a compliance notice because serious shortfalls were found in the monitoring of two families at the centre that undermined safeguarding practice. Since those incidents a revised CCTV policy has been introduced at the centre and arrangements for monitoring the parents at the centre were strengthened.

At the time A and his parents were at the Assessment Centre, there was no CCTV rota in place. The staff were responsible for monitoring the CCTV at all times, but I find, as Ms X (senior) set out in her written evidence, there may have been times when the office was left empty briefly. In the bedroom A shared with his parents there was a blind spot behind the bedroom door when it was opened and another in the right-hand corner of the window in the bedroom. There is no CCTV in the bathroom. It is accepted on behalf of the mother and the father that in early January 2023 two bath times were wholly unsupervised. The father having heard Mr X (junior) give evidence on the first occasion brought them to the attention of the court. That is to F’s credit. Mr X (junior) had to be recalled to give evidence to explain why the logs did not accurately record what had or had not taken place. In particular, the log of 4 January 2023 gave a misleading picture. It is written as if Mr X (junior) had directly observed the bath time when it is now known he did not. On the CCTV the father can be heard clearly calling that he is about to bath A and no one comes to supervise. On 7 January 2023 the father alerted the staff that he has just bathed A who he then took to the office. These are two clear breaches of the Assessment Centre’s agreement with the local authority. I find that the Assessment Centre did fail to monitor A at all times. I find that towards the end of the family’s placement at the Assessment Centre, it is likely that, as M told me in evidence, towards the end there was less supervision. I find that Mr X (junior) was aware of this. I find that his logs for the two known occasions do not reflect what actually happened because he knew that A was meant to be supervised constantly and he knew that he was not.

I find on the basis of all the evidence before me that whilst at the Assessment Centre, A suffered multiple fractures. He sustained 23 fractures to his ribs which fall into four groups:

i) 6 fractures to the posterior right side
ii) 5 rib fractures to the anterior right side
iii) 8 rib fractures to the anterior left side
iv) 4 rib fractures post laterally on the left side.
In addition, I find that whilst at the Assessment Centre, A sustained a fracture to his left wrist. He also suffered a tear to his lingual frenulum.
I find that the tear to A’s lingual frenulum is likely to have occurred close to the moment when blood was noticed coming from his mouth on 25 December 2022. I accept the radiological evidence which provides a broad timeframe in which the factures are likely to have occurred. The rib fractures are likely to have occurred between 3-8 weeks prior to the skeletal survey on 19 January 2023. The wrist fracture is likely to have occurred 2-5 weeks before the skeletal survey.

…I have read and heard the evidence of many of the staff who worked at the Assessment Centre. They were day and night time family support workers. Whilst the parents did not directly accuse any one of them in the hearing before me of harming A, some were on the list of people who had the opportunity to cause harm. They were understandably anxious when giving evidence and sometimes fearful. However they each gave their evidence calmly and with compassion. I have already made my assessment of the relevant independent witnesses. I find that they did not cause A’s injuries. Specifically I find that Ms H did not cause any injury. She was an impressive witness. She was clearly truthful. The occasion when she nearly dropped A was caught on CCTV and viewed by Professor Fleming. I accept his evidence that nothing he witnessed on the relevant clip is evidence of Ms H causing A to sustain fractures.

…I find that it is likely that F was stressed when feeding A on 25 December 2022. I find that it is likely that he became frustrated when feeding him as he had previously on 3 December 2022. I find that on 25 December 2022 and shortly before 21.45hrs, F had given A his bottle without taking the care that a reasonable parent should have given to him. He did not ensure that the teat was not under A’s tongue, and he placed the bottle in A’s mouth with inappropriate force, sufficient to cause the lingual frenulum to tear. I find that M’s reaction was almost immediate at the sight of the blood. She might not have seen F cause the injury but she saw the aftermath. M did not tell the court the truth when she said she didn’t know what caused A’s mouth to bleed. I find that she knew that A had been fed by his father shortly before blood came from A’s mouth and that she knows in her heart of hearts that F caused that injury. However, I find that she simply could not bring herself in evidence to say he did it.


  1. …On behalf of M, it is submitted in closing that as F caused the lingual frenulum injury, it is inherently improbable that there are two perpetrators and that I should factor that in when considering the fractures and who caused them. However, I balance against that that the mechanism to cause the fractures would have been different.
  2. However, standing back and considering all the evidence as a whole, I find that it is likely that F caused the rib fractures and the wrist fracture. He did so within the radiological time frame which I have already accepted above. I cannot on the evidence pinpoint an event or events and say that is exactly when the fractures occurred. However, F has accepted that on occasion he was too rough when handling A, he was too rushed when carrying out care tasks for his son and he took risks with A. F would not take advice about how to handle his son and thought he knew better. Given the number of fractures and their sites, I find that there is likely to have been more than one occasion when F used more force than a reasonable care giver would give to A and caused his rib fractures and his wrist fractures. I have already accepted Professor Fleming’s evidence that the person causing the injury will have known that they have done something inappropriate even if they do not know that they have caused fractures. I find that F does know that he has harmed A by being too rough with him and using too much force when playing with him and carrying out care tasks. I find that he has chosen not to tell the court what has happened for fear of being thought to have deliberately harmed his son. I find that F did not set out to harm his son but he was over confident in his own ability; too rough when handling A and took risks. He used inappropriate force when handling his son and caused the fractures.
  3. In relation to M’s alleged failure to protect, I take into account that the Assessment Centre themselves did not consider that F would have caused A injury. Thus, whilst they recorded risk taking behaviours and rough handling, they did not intervene to remove A or to stop F carrying out caring tasks. Indeed they bought into his self-confidence and, as I have already found, towards the end of the placement did not supervise him as thoroughly when caring for A as they ought. Having heard the evidence I find that M bought into that confidence, just as the Assessment Centre did. I find that, as she told me in evidence, she did not perceive his handling to be too rough and, although he did things she would not have contemplated doing, she did not perceive him to be a risk (see paragraph 106 above).

A very sad and difficult case.

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Overseas assessment and delay

Posted on March 12, 2025 by suesspiciousminds

There’s been a tension for quite a long time between children’s timescales (and the 26 week timetable and principle of no delay) versus exploring all realistic alternatives to adoption.

This Court of Appeal case is a decision on this point, and in my view a helpful reminder to the parties and Courts that the welfare of the child is paramount and that the impact of delay in decision-making for the child needs to be bourne in mind.

Christopher Marlowe said of Helen of Troy that she had the face that launched a thousand ships, and Isaac Asimov postulated later that therefore a milli-Helen is the quantity of beauty sufficient to launch a single ship. This post will launch if not a thousand bookmarks, then at least a hundred for every LA lawyer in the country will want to have this one to hand from time to time.

M (A Child) (Placement Order) [2025] EWCA Civ 214 (06 March 2025)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2025/214.html

At the start of the Appeal hearing, the proceedings had been going on for 62 weeks. I won’t go into the background of why the parents weren’t considered suitable, but for a long time, the issue of placing the child with an aunt and uncle in Pakistan was being considered. By the time of the final hearing, the Local Authority took the view that they no longer supported a placement of the child in Pakistan.

That was broadly for these reasons – 14 months after proceedings had been issued, the aunt and uncle still had no visa to come to the UK – that would take at least a further 6 weeks – after that, they could come to the UK and participate in a detailed assessment of their parenting with the child, then obtaining a Court order in Pakistan which might take 6 months. There were also considerable issues with the financial support that the aunt and uncle would need to be able to care for the child.

38.The judge having reached her conclusions in relation to placement with the mother, proceeded, against the background of the welfare checklist, to consider whether it was in M’s best interest to adjourn the proceedings in order to “explore whether it is in fact in [M]’s best interests to be placed in Pakistan, and whether such a placement is actually achievable in [M]’s timescales”.

  1. The judge recorded that the aunt and uncle accepted that:
  2. The judge said at paragraph [76] that the plan to place M with his aunt and uncle was “fraught with uncertainties”. She then particularised issues such as the need to obtain visas, that the local authority were no longer willing to fund a UK assessment, the further delay occasioned by the assessment itself followed by further court proceedings and the need for a mirror order.
  3. The judge emphasised the importance of timescale because of the impact on M. The judge went on at [78-79]:
  4. The judge held at [81] that the adjournment would have to be at least three to four months to complete the assessment and return to court, and probably “more akin to six to twelve months before successful placement could be achieved if the assessment were positive”. There would, she said, be a real possibility that the assessment would not be positive and/or that M could not be placed with the aunt and uncle, which would lead to further delay. The timescales for adoption were, she held, “both shorter and more certain”. She accepted the evidence that a match could be found within a reasonable timescale with placement within months.
  5. Against the backdrop of her findings, the judge reached the conclusion at [82] that it was not in M’s best interests “even when judged by the yardstick of considering his lifelong best interest” to continue the process of assessment with the aunt and uncle “despite all the detrimental consequences that flow from such a decision”.
  6. The judge concluded by saying that whilst it had been a difficult case, it was not a finely balanced one. She expressed her empathy with the aunt and uncle “who have done all in their power to offer their nephew a home”. However, “further delay for an unknown length of time and for an uncertain outcome is quite contrary to M’s needs”.

The Court of Appeal looked at the question of whether the trial Judge was unreasonable and unduly pessimistic about the plan.

53. That there was a real possibility that the assessment might fail was in my judgment an inevitable consequence of the uncertainty inherent in the whole complicated plan; for example, it may simply not have been viable because the funding was no longer available from the cash-poor local authority or the applications for visas may be refused. M may himself have found the introduction to his aunt and uncle with the language barrier just too difficult and, as had been identified by Ms Rafiq, there were issues with schools and the home conditions. These were all potential stumbling blocks. For my part I can see that there was also a significant risk that the demands on the aunt and uncle might be simply too great. Should the matter have been adjourned then, providing they managed to obtain visas, the family would have relocated to a strange country for an unspecified period of time for assessment and, if successful, the uncle would then return to Pakistan with the two older (but by no means grown up) children. Once home they would have to manage without their primary carer while their father worked punishingly long hours, potentially for many months, whilst court proceedings took their course in both the UK and Pakistan, proceedings which would be necessary in order to provide essential protection for M’s position in Pakistan.

The Court of Appeal re-emphasised the point made in Re W 2016 that there is no ‘right’ or ‘presumption’ for a child to be brought up within their natural family {author note – I don’t particularly like this aspect of the Re W decision, but it is the law}

  1. The judge did not ignore the positive aspects of the CFAB assessment or the cultural advantages to a family placement, and in conducting her finely tuned balancing exercise specifically said, as recorded at [41] above, that there were grounds for optimism based on the CFAB assessment. However, as Ms Styles rightly submitted, optimism is all well and good but when considering the future of M, a hard-edged evidential approach is necessary.
  2. Notwithstanding the commitment shown by the aunt and uncle to offering M a home and the undoubted advantages if it can be achieved, and that it is in a child’s best interests to have a family placement, in my judgment there were a myriad of reasons why the plan to place M in Pakistan might fail. Given the long delay which had already taken place in getting the proceedings to trial, that the assessment might not be successful was a feature which the judge was bound to have at the forefront of her mind. As in any case where it is hoped that a family placement can be achieved it is important, as was perhaps not recognised until too late in this case, that there is no presumption or right for a child to be brought up by a member of his or her natural family. In Re W (A Child) (Adoption: Grandparents Competing Claims) [2016] EWCA Civ 793, McFarlane LJ said:
  3. The judge was alive to the challenges and spoke of “two contrary principles having pulled the court in different directions, the importance of children’s welfare of being brought up by natural family where it is safe and achievable, and the harmful effects of delay”. Ultimately the judge concluded that M’s welfare demanded that he be placed for adoption and that when she performed a proportionality cross check she said she was “satisfied that, despite its draconian nature and lifelong consequences, adoption is a necessary and proportionate interference – in short, nothing else will do”.

In looking at whether the Court should have granted a further extension to the proceedings to allow for further assessment of the aunt and uncle, the Court of Appeal said this:-

The court was also taken to Peter Jackson LJ’s judgment in Re S-L (Children) [2019] EWCA Civ 1571; [2020] 4 WLR 102, in which he considered the use of s32(5) CA 1989. In relation to a case where improper use had been made of the provision, he made an observation which applies equally to all cases:

“12. In cases involving children, there can sometimes be good reasons for adjourning a final decision in order to obtain necessary information. The overriding obligation is to deal with the case justly, but there is a trade-off between the need for information and the presumptive prejudice to the child of delay, enshrined in section 1(2) Children Act 1989. Judges in the family court are well used to finding where the balance lies in the particular case before them and are acutely aware that for babies and young children the passage of weeks and months is a matter of real significance. Sharpening this general calculation, public law proceedings are subject to a statutory timetabling imperative. Section 32(1)(a) provides that the court must draw up a timetable for disposing of the application without delay and in any event within 26 weeks; subsection 32(5) allows an extension only where the court considers it necessary to enable the proceedings to be resolved justly.
13[…] the recorder’s decision to adjourn therefore squarely engaged the above provisions in relation to both children and she was obliged to explain why an extension of the timetable was necessary. In any event, she was under a general obligation to ensure that an adjournment was justified. Adjourning a decision should never be seen as ‘pressing the pause button’: it is a positive purposeful choice that requires a proper weighing-up of the advantages and disadvantages and a lively awareness that the passage of time has consequences”.
It was agreed by all parties that at 18 months old M is in a critical phase for making long term healthy attachments and that the older he is the more likely he is to encounter attachment difficulties and the harder it would be to find a match if he were to be adopted. Ms Darkens, again in reflective mode, when asked in oral evidence about M’s timescales said that “the timeframe for the optimum outcome for him was months ago”.

Mr Styles highlighted that many matters critical to the outcome are simply outside the judge’s control. Three areas spring to mind:

(i) Obtaining funding from the Resource Panel: the Panel would have to approve the essential funding notwithstanding that the local authority’s care plan is no longer to place M with the aunt and uncle;
(ii) Obtaining a visa from the Home Office: Mr Gupta accepts that visas have to be obtained and that the courts cannot put pressure on the Home Office. He says, however, that it is routine for the Home Office to be asked to expedite an application for a visa. I agree that the local authority could do that, but they certainly could not do so by reference to a court-prescribed timetable;
(iii) Obtaining a Guardianship Order in Pakistan: the uncontradicted evidence of Mr Khan is that it is preferable for an order to be obtained in Pakistan prior to placement there. The evidence is that this can take up to six months. It goes without saying that even the most rigorous timetabling by a UK judge can have no influence on the processes of the courts of a foreign jurisdiction.
These and other matters which are outside the control of the Court have to be taken into account when deciding whether a further extension of the proceedings are to be permitted. Further, it has to be remembered that “Day 1” for the consideration of acceptable timescales is not by reference to the date that a court agreed to adjourn the final hearing, but is the date on which the care proceedings were issued, as Peter Jackson LJ said in Re S-L (cited above), any court should be “acutely aware that for babies and young children the passage of weeks and months is a matter of real significance”.

Notwithstanding Mr Gupta’s realistic submissions, supported by Mr Brookes-Baker on behalf of the mother, and Ms Shaikh on behalf of the father, the judge’s careful and sympathetic analysis of the application for an adjournment for further assessments of the aunt and uncle cannot be faulted and in my judgment she reached the right decision given the uncertainties inherent in the proposed plan for placement in Pakistan and the urgency of achieving permanency for M.

Conclusion

M has been in care all his life. At the date of the trial he was 14 months old and the aunt and uncle, through no fault of their own, were not in a position to say that they could, as of that date, be regarded as a realistic option for the placement for M with them.

In my judgment for all the reasons set out above, I would endorse the judge’s observation that the decision was a difficult one but not a finely balanced one. What made it difficult was that the hopes of the family, and particularly the aunt and uncle, had been raised and then maintained long after a decision should have been reached that, for many reasons in addition to delay, the aspiration to place M with his extended family in Pakistan was not achievable within his timescales and that M’s best interests could only be served by the making of a placement order with a view to his being adopted in the UK.

For these reasons I dismissed the appeal against the making of a placement order.

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Private law costs order

Posted on March 4, 2025 by suesspiciousminds

I don’t often write about private law, but this is a Court of Appeal case considering whether or not a costs order should be made when one party made allegations that were completely without substance that incurred significant costs in investigating them.

https://www.bailii.org/ew/cases/EWCA/Civ/2025/183.html

Re E : Children: Costs 2025 EWCA Civ 183

The issue was further complicated because the Court did make SOME findings about the father, and also there were cross-allegations by father against the mother of parental alienation.

  1. The parents married in 2011 and have four children. They are boys aged 11 and 10, a girl aged 8 and a boy aged 3. The parents separated in January 2022 after the father told the mother that he had been unfaithful. The children have remained with the mother and, although they had warm feelings for their father until the separation, they have not seen him since.
  2. After the separation, the parents made allegations of domestic abuse against each other. The mother alleged physical abuse, coercive and controlling behaviour, emotional abuse and rape. The father alleged physical abuse, coercive and controlling behaviour and emotional abuse.
  3. In addition, by April/May 2022 the mother was making allegations that the father had physically and sexually abused A and B and, to a more limited degree, C and that he enabled other men to sexually abuse A and B as part of a “sex-ring”. The father alleged that the mother was making up these allegations in order to alienate the children from him.
  4. As a result of the allegations, and particularly those of sexual abuse, the local authority and police became involved. The police conducted three ABE interviews with A and two with B. Their investigation did not lead to any action against the father.
  5. As a domestic abuse complainant, the mother was entitled to legal aid. The father, though of modest means, did not have that benefit. By the end of the fact-finding hearing he had incurred legal costs of over £75,000 without so far obtaining any order for contact.

The mother’s allegations that the father had sexually abused the children and drawn them into a sex-ring had no substance of any kind.

  1. The judgment runs to 68 pages, and it is only necessary to extract observations and conclusions that are relevant to the issue of costs:
  2. The judge summarised his findings at paragraph 7:

i. The mother had made eight witness statements in which details of her allegations had emerged in a piecemeal way. She gave accounts of statements made to her by A and B that described the most serious kinds of sexual abuse. There was, the judge said, considerable force in the argument that the allegations only emerged once it became clear to the mother that this was the only way to prevent the father from having contact with the children.
ii. The mother denied that she knew who had abused her sons. She further denied that she had told the court in October 2023 that she knew their names, but the judge did not accept that.
iii. The mother gave evidence over two days. The judge found that she was not a compelling witness and that some of her evidence was simply untrue. She was vague, confused, passive and easily led. Her answers were rambling and avoidant. This was in marked contrast to her clear and determined approach outside the courtroom when trying to persuade professionals that the children had been sexually abused, and her anger when they did not accept her viewpoint.
iv. The judge’s impression of the father’s evidence was mixed. His evidence about his behaviour towards the mother during the course of their relationship and his behaviour after separation was unconvincing, and his evidence in support of his allegations of domestic abuse against the mother was entirely unconvincing, indeed untruthful. In contrast, his evidence when challenged about the allegations of sexual abuse against his children was markedly different. He was upset, and appeared bemused and defeated. He could not understand why anyone would believe him to have perpetrated such gross abuse upon his children or how anyone could put such ideas into their heads. His responses on this issue appeared measured, appropriate and genuine.
v. The judge described the case as extremely troubling. The children’s accounts of abuse, which he considered in detail, were not convincing. However (at paragraph 184):
“The mother has convinced herself that the father sexually abused her children. Secure in her belief that the central allegation is true, she has pressed relentlessly for other professionals to accept her perspective and act accordingly. When they have not acted or not acted in the way that she has wanted, she has redoubled her efforts. She has, in my judgment, pressured her children to ‘start talking’. She has convinced them that the father is a bad person and that he poses a danger to her and to them. The father’s actions in attending the property and threatening the mother, once seen by the children or relayed to them, have reinforced that view.”

When it came to the original trial Judge considering the father’s application for costs, the judgment says this:-

The judge directed himself in some detail on the conventional legal principles in respect of costs in cases of this kind. He expressed considerable sympathy for the father’s position and accepted that the financial cost of the proceedings had taken an enormous toll on him. However, he made no order for costs, giving these reasons:

“59. In my analysis, these are proceedings where both parents have made cross-allegations against each other. In respect of each parent I made findings on some of their allegations but did not make findings on all of them. The fact-finding hearing had not been listed just to consider the mother’s allegations of sexual abuse against the father. They had also been listed to consider the mother’s allegations of domestic abuse against the father, the father’s allegations of domestic abuse against the mother and the father’s allegations of alienation against the mother.

  1. As confirmed to me today, Mr Davis has not sought to argue that any different legal test should apply whether ultimately any costs order is to be paid by the mother herself or, as in his submissions in this case, by the State through application to the Legal Aid Agency. The principles I must therefore apply are the same.
  2. Whilst there is some force in the submissions made on behalf of the father, ultimately I do not consider this to be a case where I should exercise my discretion to make a costs order in his favour. This is for the following reasons:
    (1) The reasons I gave to adjourn the hearing in January 2024 were not reasons that related in any way to the mother’s litigation conduct. I accept, therefore, the submission that is made on this point on behalf of the mother. The decision to adjourn was the result of late or non-disclosure by third parties, namely, the police and the Local Authority. Arguably, it is them not the mother who should have faced a costs application in relation to the adjournment.
    (2) This is not a straightforward case where allegations were made by one party and found to be proved against the other party, or else where allegations were made by one party and dismissed in     their entirety. The mother did establish some of her allegations of domestic abuse against the father despite his denial. He has been found previously to have harassed her in breach of a non-molestation order. The father did not establish his allegations of domestic abuse against the mother which had no substance as I found and were very much raised as a counterweight against the allegations she had made against him. Each party succeeded and failed in part on the cases advanced before me.
    (3) I made critical observations about each parent in the course of my judgment. My observations of the mother are at paragraphs 82 to 85 of the judgment and of the father, at 142 to 148. I concluded that neither parent was a wholly reliable witness.
    (4) The mother is right to point out that my finding in relation to the allegations of sexual abuse in relation to the children was not that the mother had maintained allegations which she knew to be wholly false. It is, as I set out in paragraph 184 of my judgment, that she has convinced herself that he did these things. This is an important distinction.
    (5) The conclusions that I reached about both parents are set out in the concluding part of my judgment. As I have said, I concluded that the mother had convinced herself that the father sexually abused the children. So far as the father is concerned, he did not escape in any sense unscathed from the observations in my judgment. I said this about him at paragraph 186:
    “The father was aggressive and threatening towards the mother in the course of their relationship     and after it ended. This behaviour included threats of violence towards her, threats to damage their home, throwing a bottle to the floor and a glass at her door. The father pressured the mother for sex during the marriage. He threatened to look elsewhere for sex and his infidelity in December 2021 brought the parties’ marriage to an end. The father kicked A on the foot in anger on at least one occasion”.
  3. In conclusion, therefore, this case represents a much more mixed and nuanced picture than as presented on behalf of the father and can be distinguished from those cases where costs orders have previously been made against one party in favour of the other. I appreciate the father feels that there is an injustice in that the mother has been entitled to public funding and he has not. However much sympathy I have for that contention, it does not of itself justify an order for costs and thereby the opening of a gateway to redress that injustice through an application under s.26 to the Legal Aid Agency. As Mr Davis rightly accepts, that would not be a good reason for making a costs order in his favour.
  4. I therefore make no order as to costs insofar as the fact-finding process is concerned.“

The Court of Appeal took a different view and made a costs order that the father recover some of his costs

Analysis and conclusion

Turning to this individual case, I acknowledge the generous latitude enjoyed by a judge making an evaluative decision after a substantial trial, and remind myself of the limits on the role of an appeal court and the obligation to read extempore judgments sensibly and not over-critically. It should also be noted that, with this one exception, none of the judge’s primary decisions in this difficult case has been subject to any appeal by either party.

To start with, the judge was right to take account of the whole picture. The cross-allegations of domestic abuse were sadly commonplace, and were never likely to lead to a costs award. Similarly, and in disagreement with the father’s argument, there was in the light of the overall findings no basis for penalising the mother in costs because she failed to prove that he had raped her.

However, the judge should have acknowledged that the mother’s extreme allegations that the father had sexually abused the older children and had handed them over to a paedophile sex ring were of an entirely different character and that different costs considerations consequently arose. His starting-point that “these were proceedings where both parents had made cross-allegations” was an inadequate reflection of the true position. He should have recognised, firstly, that there was no equivalence between the sexual allegations involving the children and the other allegations, and secondly, that those allegations had completely transformed the proceedings, leading to extraordinary delay and hugely increased costs. He should also have appreciated that the adjournment of the January hearing was a direct result of the mother’s pursuit of the sexual allegations, and that it was incorrect to say that it was not related in any way to her litigation conduct. In short, he should have separated out the unfounded sexual allegations involving the children.

I also accept that the judge was mistaken in treating the fact that he had made a mixture of findings as a reason for making no order for costs, without considering his power to order that a proportion of the father’s costs should be paid.

The judge placed significant weight on his assessment of the mother’s motivation: see paragraph 61(4), referring back to paragraph 184 of the fact-finding judgment. He differentiated between allegations known to be wholly false and allegations that she had convinced herself were true. That is a subtle distinction, and I cannot see how it avails the mother in this case. The Delphic finding that she had convinced herself that the father had sexually abused the children, not further explained, could not be the end of the matter. In the first place, the court was not considering whether the mother regarded her litigation conduct to be reprehensible or unreasonable, but making its own objective assessment. As Staughton LJ said in Re R:

“The real point that has been argued before us seems to me to be this: the judge evidently found that the father had behaved unreasonably in the litigation. I do not doubt that Mr R genuinely believes that his arguments are perfectly reasonable. I do not question his good faith, but I am afraid I do agree with the judge that they did not, in reality, represent a reasonable attitude for the father to take.”
In any case, the judge’s approach to the mother’s motivation was in my view unduly indulgent. He should have taken into account a number of striking features of the litigation:

i. The link that he had identified between the sexual allegations and the mother’s realisation that this was the only way to prevent the father from having contact with the children.
ii. The lack of any objective foundation for the sexual abuse allegations, other than the children’s statements under pressure.
iii. The mother’s lie about knowing the names of other members of the paedophile ring, which was bound to cast doubt on the genuineness of her belief.
iv. Her choice to make lurid allegations (including that the father had involved a child in bestiality with a family pet) that she neither pursued nor withdrew.
v. Her continuous production of witness statements, arising from her pressure on the children to ‘start talking’ and leading to the court having to accommodate the results of repeated interviewing of the children.
vi. Her deletion of a recording of one child before it could be heard by other adults, supposedly to protect his privacy.
vii. The court’s “considerable doubt” about the genuineness of a drawing that the mother said had been made by a child.
viii. The wholly unsatisfactory quality of the mother’s oral evidence in relation to the sexual abuse allegations.
In the light of these matters the judge’s conclusion that the mother’s litigation conduct was not reprehensible or unreasonable cannot stand. We cannot remit the question to the judge, who is continuing to hear the substantive proceedings, and there is no reason why we should not reach our own conclusion.

After the hearing, we received submissions from the parties about the scope of our order. A number of the Family Court hearings led to orders that there be no order for costs, and it would not have been open to the judge to disturb them. Other orders were silent as to costs, and it was open to the judge and to this court to make orders in respect of those costs at a later stage. The same applies to the order of 6 February 2024, made at the end of the abandoned fact-finding hearing, by which the costs were reserved.

Taking all matters into account, I would substitute for the judge’s costs order an order in these terms:

The mother shall pay half of the father’s costs of the Children Act proceedings up to 3 July 2024, excluding the costs of the father’s representation at any hearing in respect of which an order was made that there be no order for costs; this order shall not be enforced against the mother without the leave of the Family Court.
That portion of the father’s costs is the least that can be properly ordered in the circumstances as a reflection of the impact on the proceedings of the mother’s false allegations that the father and others have sexually abused the children, and the father’s cross-allegation of alienation. I repeat that the costs order does not relate to the mother’s allegation of rape.

To that extent, I would allow the appeal.

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