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Irresponsible sperm donor

This is a very unusual and interesting High Court case.

JM is a man who has been making private arrangements with women who want children to be a sperm donor for those women. He does this privately rather than through a clinic because clinics will not accept him as a donor.

They will not accept him because he has an inheritable genetic condition, Fragile X. He has assisted 15 women to have children through his donations.

He entered into agreements with the women at the time, that he would not have anything to do with the child.

Despite this, he made applications in relation to 3 children for parental responsibility and contact. In some of those cases, serious allegations were made against JM.

The Court was considering :-

  1. Whether to grant those applications
  2. Whether to make an order under s91(14) of the Children Act 1989 to bar any further applications without leave
  3. Whether to name JM in the judgment.

Obviously, the latter point is the most legally interesting.

Naming JM in the judgment

It would be an unusual step in a judgment such as this to name one of the parents. The usual approach is to anonymise the parents so as to protect the identity of the children. However, it is clear from Tickle v Griffiths that there are cases where the public interest in the naming of the parents is sufficiently great as to outweigh the risk of identification of the children and their Article 8 right to privacy.
There are strong grounds for naming JM. All three mothers and the Guardian support naming. Although JM told the Court that he had ceased to act as a sperm donor, a social media message from February 2022 suggested that he was still offering his services at that date. In the light of JM’s lack of honesty to his own mother, Mrs M, and his belief that he has done nothing wrong, he said he would be a sperm donor for any of the existing mothers so the children would have a “sibling connection”, I have no confidence that he will not act as a sperm donor in the future. I equally have no confidence in him fully explaining to any woman the true implications of his Fragile X Syndrome. There is therefore a very specific benefit in him being named in the hope that women will look him up on the internet and see this judgment.
As the Guardian suggests, there is a wider public benefit in the risks of private sperm donors being more widely known and considered. Publishing this judgment without anonymising JM raises the prospects of wider dissemination of the huge impact using JM as a sperm donor has had on these mothers.
If JM is named there is some risk that the children will be identified. However, R, P and N do not bear his surname, although B does. In any event, they are too young to be conscious of any internet comment. It is possible that they may become aware in the future of the facts set out, but it would be a sensible course for the mothers to explain the position to the children in an age appropriate way at some future date in any event.
Ms Robertson raises the negative impacts upon JM of his being named and identified as a sperm donor. I accept that there may be some negative impacts. However, JM chose to be a sperm donor despite knowing that he would not be permitted to go through a clinic. He also chose to make these applications despite the strong opposition of the mothers. There is no suggestion that JM does not have capacity in respect of these decisions. In those circumstances, the fact that JM will be identified is a consequence of the decisions he has made.
There is a wider point about transparency in this regard. The usual approach of anonymity in the Family Courts should not be used as a way for parents to behave in an unacceptable manner and then hide behind the cloak of anonymity. The provisions and practice in respect of anonymity in family law are there to protect the children and not the parents.
For all these reasons I consider this to be a case where it is appropriate to name JM.

(and now that I’ve dealt with that bit, I can tell you that the name of the case is :-

MacDougall v SW & Ors (sperm donor : parental responsibility or contact) (24 May 2022)

It would be fair to say that the Court was not impressed that James MacDougall fathered 15 children by way of sperm donation despite knowing that he had an inheritable genetic condition.

I also take into account the fundamental irresponsibility of JM acting as a sperm donor whilst knowing that he had Fragile X Syndrome, an inheritable condition, without at the very least making it entirely clear to the mothers concerned the implications of Fragile X. JM knew that he could not be a sperm donor through a clinic because of his condition. He told the Guardian that he thought Fragile X was not serious and it was for the mothers to do the research. Even if JM does not understand the true implications of Fragile X, he does know it prevents him acting through a donor clinic.
Although the agreement does refer to Fragile X, JM took no steps to explain the condition to SW or EG and no steps to ensure they understood. JM took advantage of these young women’s vulnerability and their strong desire to have children. This failure to take responsibility for his own condition, and to have any apparent concern for the long-term impact both on the mothers and potentially the children, is a factor in concluding that JM should not be given parental responsibility for the children

The Court did not grant him the Parental Responsibility Orders or orders for contact, and made s91(14) orders for three years (I should note that because one of the children had social services involvement, matters in relation to that child were adjourned and although the applications related to 3 children the Court only dealt with 2 for that reason)

Very unusual for a Court to name a parent in children proceedings, it generally only happens where there are committal proceedings, but one can completely see – particularly where JM said he intended to continue being a donor, why the Court felt it was appropriate that anyone deciding to take up James MacDougall’s services should know that he is a carrier of Fragile X and that googling his name is likely to provide a link to this judgment.

If you are undertaking any sort of fertility arrangement that does not involve a professional clinic (and even some of those aren’t great – google Suesspicious Minds + Port Harcourt for example) it would be a very good idea to get some independent legal advice first. The agreements JM had drawn up for these women was, the Judge said

The agreement is a closely spaced three page document in highly legalistic language which is difficult to read even for a lawyer


This is a case about protection of a vulnerable adult, who has capacity to make a decision, but where everyone involved could see that the decision was a very very poor one, even the adult herself accepting that if a friend came to her with the same decision she’d say “of course it does not sound like a sensible plan”

EF is a girl aged 18, coming up to 19. When she was 14, she met a man GH on an online chatroom. GH was at that time 25. When she was 15, GH sent her an engagement ring and told her that they would get married. In September 2019, GH came to the UK to meet EF, and whilst in the UK he was arrested on charges of indecent images of children.

GH returned to Brazil. EF wants to go to Brazil to be with him.

The London Borough of Islington brought the case to Court, seeking under the inherent jurisdiction orders preventing her from going to Brazil.

The Court say this about GH

What is known is as follows. He is 11 years older than EF. He met her in a chat room when she was 14 and continued a relationship with her when he learnt she was 15. He admits to EF that he is addicted to pornography and has downloaded child pornography including images of very young children. He told EF that this action was linked to his addiction. He knows about EF’s mental ill health and her need for mental health support and so her vulnerability.

Of course anyone looking at this case would be very worried about EF, who is vulnerable and appears to have fallen in love with a man about whom there are significant red flags. However, it is clear that EF has capacity to make decisions for herself, even unwise ones.

The Court was driven to the conclusion that the orders sought by the Local Authority were a very significant interference with the freedoms of a person who whilst vulnerable had capacity to make decisions for herself, even very bad and unwise ones. The Court declined to make the orders (which must be right in law, though you can easily see why Islington asked for them) but also urged EF to think very carefully before making the trip to Brazil and EF had agreed to undertake some educative work before going.

The first point to reiterate is that it is clear from Dr D’s evidence and the parties agree that EF has capacity and that therefore the court’s jurisdiction is not the MCA.
I am also mindful of the statutory principles set out in section 1 of the MCA namely that a person must be assumed to have capacity unless it is established that she lacks it and that a person is not to be treated as unable to make a decision merely because she makes an unwise one.
As EF has capacity the only jurisdiction that this court has to make the orders the LA seeks is pursuant to the court’s inherent jurisdiction but the exercise of this is carefully circumscribed as set out above and the power must be used sparingly.
Although the MCA does not apply I think the above principles apply equally in this case, namely that I should assume EF is able to make her own decisions and should not be treated as being unable to merely because she is making unwise ones.
I have considered all the cases that I have been referred but in my judgement the weight of the authorities clearly indicates that this jurisdiction should be used rarely and in any event should be facilitative and not dictatorial and that the court should not make orders against the subject of the proceedings prohibiting them from acting in accordance with their wishes.
The orders that the LA seek are dictatorial and aimed at the victim namely EF. The LA is expressly seeking to impose such decisions upon EF, namely prohibiting her from visiting or living with her partner, prohibiting her from travelling to Brazil and prohibiting her from having her passport without the permission of the court. The net effect of these prohibitions is also to stop EF from seeing GH. The LA are seeking for decisions of the utmost significance to be imposed upon EF. On that basis alone I should not make them.
If I am wrong about that and there is a jurisdiction to make such orders against victims it only exists in truly exceptional circumstances. I am not satisfied that those exist in this case. The scale of interference is significant and not in reality time limited to 6 months as it is by no means certain that in 6 months’ time the court will be in a different position as there is every chance that despite the work that EF will carry out with the LA her views will not have changed. The justification for the inference is the risk to EF’s health and wellbeing and in the worst case her life. I have already dealt with my assessment of that risk.
Moreover, EF is an adult with capacity and wants to be in a relationship with GH. She has known him for 3 years and separated from him once. She has received advice from professionals not to go and is intelligent enough to understand that advice and act on it if she so wishes. She plans to visit Brazil at least once before moving there permanently. She has saved up a reasonable sum so that she will have a degree of independence once over there. She plans to take a second mobile phone with her as another level of security. She has researched the medical and health facilities in Brazil and is aware of its shortcomings. She has agreed not to travel to Brazil until her course is completed. She has agreed to continue to work with the LA before she leaves. These are sensible decisions which show a degree of independence and critical thinking.
In addition I have very much in mind EF’s Article 8 right to respect for her private and family life which if I were to make the orders sought by the LA would be breached as she would be prevented from pursuing the relationship she wants and living the life she wants. As already stated the purpose of invoking the inherent jurisdiction in respect of a vulnerable adult should be to enhance a person’s Article 8 rights not limit them. Article 8 protects and obligates the State to “respect” both “family life” and “private life”; this includes a person’s right to live their personal life as they choose and establish and develop relationships including intimate relationships. The orders the LA seek would fundamentally breach EF’s Article 8 rights. Moreover, as already referred to, whilst the LA only seek orders for a further 6 months, such orders have been in place for 9 months already and there is a real chance and KL
accepted that in 6 months the LA’s position will not have changed and they will seek further orders.
Lastly to impose what would be a worldwide travel ban for any further period of time would be a highly intrusive step by the court would and only be justified in exceptional circumstances. I am not satisfied those exist in this case.
I am conscious of the fact that the only reason why court intervention is possible in this case to stop EF’s relationship with GH is because he lives in another continent. If EF was associating with a man who lived in London who the LA thought was unsuitable they would not be able to protect her from that save by depriving her of her liberty which step they obviously would not take.
This is a difficult case but I have therefore reached the clear conclusion that the court should not continue to invoke its inherent jurisdiction to stop EF from travelling to Brazil and so having a relationship with GH.
In the Court of Protection in the case of LB Tower Hamlets v PB [2020] EWCOP 34 Hayden J, VP, stated that:
” The healthy and moral human instinct to protect vulnerable people from unwise, indeed, potentially catastrophic decisions must never be permitted to eclipse their fundamental right to take their own decisions where they have the capacity to do so. Misguided paternalism has no place in the Court of Protection.”
In my judgement this general principle has application in this case.
I have therefore decided to end the protective orders that have been in place.
I do that on the basis that EF has undertaken to this court that she will not travel abroad before the end of her college course on 5.07.22 and that in the meantime she will attend the proposed sessions of work arranged by the LA.
I end this judgment with a plea to EF. I have accepted that the LA and Dr D are right to be very worried about her because I have found that there are real risks to EF’s wellbeing from moving to Brazil and living with GH.
I have concluded that the professionals in this case have EF’s best interest at heart and want to protect her and keep her safe.
The court’s view is that EF would be making a very unwise decision to move to Brazil.
I urge her to work with them between now and July when her course finishes.
I urge EF to attend all the sessions that the LA arrange for her.
I ask EF to listen carefully to the advice given and think more deeply about the issues in this case.
EF told me she would be worried if a friend of hers was about to embark on a similar trip. She needs to think about her own case as if she were that friend

London Borough of Islington and EF 2022

“You’re terminated… erm, Mister”

Oh, this is a DOOZY.

An application to terminate the appointment of a Guardian. Always interesting these, but always doomed to failure and the Court make sympathetic noises and assure everyone that no matter what they think the Guardian is independent and fair-minded and that perhaps a gentle smack on the wrist is all that is needed but the Guardian

Hold on, what?

The application was granted?

Now we’re in. Load up your sitting back and eating popcorn gif of choice (RIP Stephen E Wilihite), I like Jessica Fletcher myself. Let’s crack into it.

Care proceedings – there needs to be a sexual risk assessment of dad, LA propose that a social worker will do it. Dad’s lawyers email the LA and ask for details about the social worker’s experience in doing such an assessment. An answer was received. The father applied for an ISW, that application was adjourned.

So far, pretty normal. Dad was represented by a solicitor called Mr S. A senior partner at Mr S’s firm, Mr T also does care work. He does a lot of Guardian work, he represents the Guardian in other cases. The Guardian also has a surname beginning with T, so I’m going to just call him “Guardian” throughout. (all of the names are in the judgment, but that’s my scheme)

This again, is pretty normal.

After the hearing, the Guardian writes to Mr T. About this case. Which is not Mr T’s case. It is Mr S’s case, and Mr T is a senior partner at the firm.

That is NOT normal.

What does the Guardian say?

“further concerned that following the making of such application, father’s solicitor wrote to the Local Authority seeking to ascertain the professional competency of the Local Authority social worker, what skills and qualifications they had, what tools they would be using to assess father and whether they had the necessary acumen and experience to undertake a task which they considered to be sufficiently complex that only an ISW would have the necessary skills required to complete the report”

  1. GUARDIAN goes on to say that having considered the papers carefully himself he could not see the necessity for an independent social worker to assess the father in this matter.

He sets out his view that this is ‘the bread and butter work that social workers are specifically trained for’. He goes on to say:

“Therefore, I was very surprised that father’s solicitor should seek to undermine the competence of the social worker and argue that only someone with a significant level of experience in assessing sex offenders could undertake such a task.”

  1. GUARDIAN goes on to set out and expand his argument, in addition to the specific criticisms of the solicitor for the father and pointed out to Mr T the importance of accepting that social workers have significant expertise in relation to these matters.
  2. GUARDIAN then turns to his second point. This he says relates to “the actions of the solicitor”.

“I understand they sit on the Children’s panel and are deemed qualified to advocate on behalf of children. Like undertaking a parenting assessment is the bread and butter of social work, advocating in the Courts, presenting coherent arguments on behalf of those they represent and cross examining witnesses should be the staple diet of any practising solicitor. Further, any practising family law solicitor who is a member of the children’s panel should have that additional level of skill commensurate with the qualifications of the role. I was therefore rather concerned that having made a part 25 application to the Court for an Independent Social Work assessment, and further questioning the competence of the social worker undertaking an assessment of the father, the solicitor instructed Counsel to undertake this task on their behalf. It again concerns me that having questioned the competence of the social worker to undertake their role the solicitor appears to have abdicated their own role in this matter and asked someone else to present an argument to the Court for them”

  1. As can be seen, GUARDIAN is being critical of the solicitor instructed by the father for having briefed counsel. GUARDIAN suggests that was inappropriate, particularly, as in his view, the solicitor had questioned the competence of the social worker, but then had not argued that case himself at the hearing.
  2. GUARDIAN then elaborates on that by saying:

“This action by the solicitor reminds me somewhat of the old proverb “people in glass houses shouldn’t throw stones”. I don’t know the solicitor personally and cannot offer comment on their character. All I can do is observe their practise and comment on this if required. Given their qualifications and experience I would have expected that presenting an argument to support their case would have been nothing more than a run of the mill task for them. However, given their reluctance to undertake this task, and willingness to place that task into the hands of others, and their recent criticisms about the practise and expertise of the allocated social worker, I can’t help but think that in demonstrating an inability to undertake fundamental tasks relating to their own practise they are in no position to offer comment on the competence or ability of other professionals to do theirs.

WOW. Just wow.

Remember, this is the GUARDIAN, writing not to his own lawyer, but to a lawyer at the firm instructed by father, and not even to the father’s own lawyer but to someone senior at the firm. There is not a single bit of this that is okay.

Credit to Mr T, he immediately alerted the Guardian that he would have to share the email with the father.

The Guardian, instead of backtracking, doubles down with a further email to Mr T.

He set out that he accepted that it was the father’s right to make an application to the court for an independent social work assessment. He said that was not the issue that concerned him, but the issues:

were in regard to criticisms made by his advocate regarding the qualifications and experience of the Local Authority social worker to complete a fair and balanced assessment without any supporting evidence, and my concern that whilst making such criticisms of others the advocate, who is a member of the Children’s panel, appeared to lack the competency to present their own argument to the Court. At the same time, I also recognise that in certain circumstances it is not possible for individuals to present matters to the Court on their own and occasionally they need to instruct others to act on their behalf”.

  1. He goes on to say that he accepted that the members of Mr Tamber’s team were all suitably qualified, but that “the competence of this particular individual, in my opinion, was questionable”.
  2. In his next paragraph he sets out that he will “continue to raise concerns of any advocate if they unfairly criticised the practice of others, including local authority social workers without good cause or justification”.

Now of course, if the Guardian doesn’t like Mr S and doesn’t rate him, he’s entitled to have that view, he’s entitled to not instruct Mr S, and if Mr T says “I’m too busy for the case i’ve just sent you, but Mr S can do it” the Guardian is entitled to say ‘no thanks, i’ll go elsewhere’. That would be fine.

What is NOT fine, SO not fine, is to be unhappy about the job a parent’s solicitor does, and write to their ‘boss’ to complain about it.

The father, understandably, felt that the Guardian’s view of him and his case was bound to be coloured by this very visceral reaction to what seems on the face of it to have been perfectly normal conduct by his solicitor – his solicitor quite properly asked the LA about the experience of their proposed assessor, took a view that an independent expert was needed and made the application. Mr S is totally blameless here.

So the application was made to terminate the appointment of the Guardian.

This ordinarily, would be the point at which, with the benefit of reflection and legal advice, the Guardian files a statement saying ‘sorry, it seemed appropriate at the time, but I now see that I wrote an email in haste and possibly ill-temper and I regret it, let’s all move past it and sing Kum-bye-ar together’ or words to that effect.

  1. In his statement filed for the court, in paragraph 20 GUARDIAN says, “I was surprised by this line of questioning by Mr S of the professional competence of the social worker without any supporting evidence about her practice”. In paragraph 30, he sets out that he makes no criticism of the barrister’s submissions at the hearing, but says this “my criticism was of the earlier action of father’s solicitor, Mr S, in his email to the local authority questioning the skills and competency of ND to undertake an assessment of father without any evidence to support his claims”.
  2. Later in that statement he also refers to Mr S having sought “to undermine the skills and competence of the allocated social worker”, and then at paragraph 38 refers to feeling that his actions were justified “in raising concerns about Mr S’s unfair criticism of the social worker which in my opinion needs to be addressed”.
  3. He does go on to say that “on reflection I realised that my criticism of Mr S may have been too harsh”, but then later in the same document at paragraph 44 states that in relation to this application it was brought because “I privately questioned the actions of Mr S with his senior in relation to his unfounded concerns about the professionalism and competency of the social worker to undertake an assessment of father. In doing so, Mr S sought to undermine confidence in the social work profession and the professionalism within it”.

Within GUARDIAN’s witness statement, he then says this “I also raised questions that given Mr S’s own level of experience, as he is a member of the children’s panel of solicitors, I was surprised that while seeking to undermine the skills and competence of the allocated social worker he had instructed an advocate to pursue his argument and make submissions to court rather than undertake this task himself”.

  1. At the conclusion of his witness statement he says “while seeking to undermine the competence of the social worker, Mr S demonstrated weaknesses in his own professional skill by not presenting his own case before the court and abdicating this responsibility to others”.

Although in the hearing, counsel for the Guardian attempted to row back from this statement and soften the position, the Judge pressed very hard as to what the Guardian’s specific instructions were, and ‘may have been too harsh’ was as far as it went.

My favourite moment is when the Local Authority, who were in full popcorn mode, suddenly find themselves pressed by the Judge to come off the fence from ‘well, it is all very troubling but…’ and into well, what do you say should the Guardian be terminated or not?

Very tricky – on the history of such allegations, the Guardian is probably going to stay in the case and then you have to deal with a Guardian who you supported in being thrown out of the case. As Omar Little says, “you come for the King, you best not miss”

They understandably when their feet were held to the fire by the Judge, went with the safe option of not supporting the termination of the Guardian.

The Judge decided otherwise (and good on them, I say)

In my view, on the facts of this particular case, the Guardian’s actions have fallen short of the degree of fairness required of him and have created unfairness for the father. They have also been manifestly contrary to the child’s best interests. His actions require the termination of his appointment. My reasons are as follows:

a)GUARDIAN is not only clearly and obviously wrong in the assertions that he makes in relation to the email, and against Mr S, but he has not been able to accept that he is wrong in relation to those. The fact that, in the face of overwhelming factual evidence showing that he is wrong, he maintains his views, and repeats them, inevitably has a significant impact not only upon the father’s views of the Guardian’ s action and analysis in this case, but upon all the other professionals working within this case, and the mother.

Despite the other ways in which the Guardian has undoubtedly acted quite properly in this case, and in many other cases, and I have balanced that, it does not appear to me that that mitigates the impact of the fact that not only is he wrong, but he does not accept that he is wrong. In my view, if GUARDIAN had been able to admit to the court that he had been in error in sending that first email, and the second email, in his witness statement or of course before that, there may have been a very different perspective to be placed upon his actions. Even if within the court hearing of this application, I had been told that he had been able to reflect and accepted he should not have acted in that way, it seems to me that there would probably have been a different view to be taken.

Professionals within these courts are currently acting under simply enormous pressure. Each of the advocates addressed me on the issue that people make mistakes, people send emails that they later regret, people reflect with the benefit of time and perhaps less pressure. That is however simply not the situation here. That fact goes to the ultimate confidence that the court and the other parties can have in the guardian’s ability to make fair and sound judgments and recommendations in this case.

b) GUARDIAN has not only made these inaccurate and unfair criticisms of Mr S, but he also made them in an inappropriate way by asserting and maintaining that he can do that by way of ‘private’ emails. As above, it appears that even having had the benefit of legal advice, GUARDIAN again does not accept he was in error in acting in that way. In my view that aspect creates an inevitable belief for both the mother and particularly for the father, that this is a Guardian who does not consider that the normal rules apply to him. Put simply, in these court proceedings, brought by the state to separate them (in their view) from their child, how could it be that a guardian acted in that way, and remained the guardian for their child. I can think of no way to rationalise that such that the parents could believe in the fairness of this process if this Guardian remained the person representing the interests of their son.

c) Just as in the Oxfordshire case, it also appears to me it would be impossible for the parents to be able to be open and straightforward in future discussions with the Guardian, as they could not possibly view his actions as other than worrying at best, or blatantly wrong at worst. To further the welfare interests of N , this Guardian must be able to build a relationship with the parents, engage them, and for them to believe that he will act fairly in representing their son. I cannot see how these parents could possibly believe that, or how this court could suggest to them they could build that sort of relationship with him. Such a relationship of openness and respect it appears to me is extremely important in these proceedings. Indeed, that was reason for the guardian to be removed in the Oxfordshire case, to encourage frankness on the part of the parents. GUARDIANS’s actions therefore again are manifestly not in the interests of the child given the situation that it seems to me must result.

d) I have considered the realities of what would happen in other respects if GUARDIAN remains the Guardian. I agree with Ms Lakin that this issue would permeate and impact upon every decision made going forwards in this case, and in my view that would inevitably be contrary to the child’s welfare. Given the findings that I have had to make in this case, every decision and recommendation that GUARDIAN makes in this case will be questioned not only by the parents, but the social work team may do so as well if he disagreed with them. That in my view once again shows a direct causal link between his actions, leading to potential unfairness in these proceedings. It shows how his actions have been manifestly contrary to the best interests of the child. In the event that the Guardian takes a stance at any final hearing contrary to the wishes of the parents, or even potentially the local authority, a substantial amount of time would be taken up cross-examining GUARDIAN about these issues. I accept that it may be by that point that GUARDIAN is prepared to concede that his actions were wrong, but he may not given his stance to date. Whichever it may be, it creates confusion, significant worry for the parents, and a real possibility of delay in the future. In my view it also creates a significant diversion of the proceedings from the welfare interests of the child, and again a causal link is shown.

e) If GUARDIAN remains the court appointed guardian, there is another significant factor. Given what has happened, if the court considers he should remain the guardian for N, the reality must be the father would surely believe that an extremely important person in these proceedings views his solicitor as not being competent. That places the father in a most unhelpful state of uncertainty of how that could come about. I cannot see how that is fair to him. I have considered how that could be explained to the father and concluded that there would simply be no logical way to do so, particularly as GUARDIAN has not resiled from his view. Again, that impacts directly upon the fairness of these proceedings, due to the father’s inevitable concerns about what or who is right.

f) Connected with that concern in relation to the father, if GUARDIAN remains N’s guardian, the father will consider in my view that he has been placed in the middle of a substantial argument between his solicitors and the guardian. As he puts in his statement, his concern would be that the guardian was not going to be fair to him and his case because of his representation. It is easy to see how a parent would struggle to draw a distinction. That cannot possibly be fair to the father. That leads to unfairness in these proceedings.

g) These aspects that I set out above are not the type of issue that can be remedied by cross examination at a final hearing.

h) I therefore conclude for all the reasons set out above that there is a real likelihood that the actions of the guardian will lead to unfairness in these proceedings as a whole

RE N (A Child) (Termination of Children’s Guardian) 2022

Age assessments

I’m grateful to one of my Twitter followers for bringing this case to my attention.

MA & Anor, R (On the Application Of) v Coventry City Council & Anor [2022] EWHC 98 (Admin) (19 January 2022)

By way of background, when an unaccompanied person entering the country and claiming asylum asserts that they are a minor, there has to be an assessment of their age. The full assessment of their age is called a “Merton assessment” following earlier case law and there is a lot of very detailed guidance as to how that is to take place. It is tricky, because very often the person has no identification documents or documents that appear falsified, and that there is no agreed reliable way of establishing a person’s age (from time to time the Government floats bone X-rays or dental X-rays, which are still only accurate to within a margin of error of a couple of years). What happens to the person depends very significantly on whether they are determined to be under 18 or not. Sometimes, no doubt, the assessments get it wrong, particularly when one is considering someone who is very close to either side of 18.

The person cannot be detained by the Home Office during that Merton assessment, and instead is accommodated by the Local Authority. There is obviously a significant advantage to the unaccompanied person in a determination that they are under 18, and thus the inherent possibility that the account given will not be wholly accurate.

That obviously has implications on both sides of the equation. On the one hand, we don’t want under 18s to be detained in Home Office detention centres and it is right that we identify unaccompanied minors and provide them with suitable arrangements , and on the other, we don’t really want over 18s being accommodated and potentially educated with children. You can’t have people who are 21 or 22 living in foster homes or children’s homes alongside vulnerable 15 and 16 year olds with everyone involved treating them as minors when they are in fact adults.

There is a provision for a Merton assessment not to take place where either:-

(a) Two immigration officers reach a conclusion that the unaccompanied person is clearly over 25; or

(b) A social worker conducts a short assessment and concludes that it is ‘very clear’ that the unaccompanied person is not a minor.

This case was about Kent County Council’s use of the short assessment process, and the fact that this led to detention of persons who the LA had assessed to be very clearly not minors.

The context is obviously that the burden of conducting age assessments falls disproportionately on some Local Authorities rather than others – areas where there is a port or an airport deal with FAR more such applications than others, and Kent obviously have Dover within their area which is a huge pressure point. Kent were overwhelmed with such applications.

They considered that there were some cases where it was immediately apparent that the person in question was a child, some where it was immediately apparent that the person was an adult, some that required a full Merton assessment and some that required a short assessment to consider which of those categories to place them into.

(Personal comment – that seems to me an entirely reasonable approach for a beleaguered Local Authority to take in unprecedented times)

The assessments in the two particular cases concluded that one person was 20 and the other 21, and that therefore they should be considered as adults and not minors. The argument before the Court was whether the age there meant that the short assessment was the wrong process (i.e a person assessed as being 20 could not be ‘very clearly’ over 18, and the more detailed Merton assessment should have taken place), and whether the age of over 25 as set out for immigration officers might be a more appropriate anchoring point for ‘very clearly over 18’. In fact, because the short assessment would only happen in circumstances where the immigration workers had NOT assessed that the person’s physical appearance was consistent with them being over 25, by their nature the short assessments were dealing with people who DID NOT LOOK OVER 25)

It is possible that (as the SSHD submitted) an experienced social worker might be able to conclude that a person is clearly significantly over 18 based on physical appearance and demeanour even in circumstances where an immigration officer might not reliably be able to do so: making the 25-year threshold more apt for the immigration officer than for a social worker with extensive experience of dealing with children. That might be seen as consistent with the point made in the last paragraph quoted in § 61 above, from the Assessing age section on reduced local authority age assessments, about the particular expertise which local authority social workers have of working with children on a daily basis. However, the circumstances in which the Guidance provides for short form assessments are not limited to cases where the social workers can say, based on appearance or demeanour, that the individual is obviously over 18 (whether significantly or at all). Further, the unreliability of appearance/demeanour as a means of making fine judgments as to age (well recognised in the case law) would make it questionable whether a person regarded, even by an experienced social worker, as appearing to be slightly over 18 could be regarded as an obvious or clear case: especially when newly arrived after a long journey.

  1. Moreover, such a case is unlikely to transform itself into a ‘clear’ or ‘obvious’ case – in that sense – during the course of the assessment. In the circumstances with which we are currently concerned, both the KIU officer and the social worker must have formed the view prior to the assessment that the individual’s physical appearance and demeanour do not very strongly suggest that they are 25 or older. Their perceived appearance and demeanour are unlikely to change significantly as a result of the interview. Further, the “Decision on age” section of the report form itself does not ask the social worker to revisit the question of whether the individual’s physical appearance and demeanour indicate that he/she is very clearly significantly over 18, nor even that his/her physical appearance and demeanour indicate that he/she is clearly over 18. Instead, the question is whether he/she has been “[a]ssessed to be clearly an adult”.
  2. In substance, therefore, the process includes taking individuals who are not obviously over 18 based on physical appearance and demeanour, but seeking to assess whether they are clearly over 18 having regard to other factors, such as the nature and credibility of their accounts of their family history, education, journeys to the UK and life narratives generally. That is, indeed, the nature of the assessment purportedly made in relation to the present Claimants. However, such an assessment is in essence the very same type of analysis as a local authority sets out to make by conducting a ‘full’ Merton-compliant assessment: in relation to which the case law considered earlier has held it necessary for a number of safeguards to exist.
  3. Against that, it may be said that the same types and levels of safeguards may not be required for an initial assessment of the kind with which we are presently concerned. I bear in mind also that the SSHD is seeking to address very difficult circumstances, with increasing numbers of arrivals, and the tension referred to in the case law between observing the welfare principle regarding children and the need to maintain effective immigration controls.
  4. However – even leaving aside the point that the SSHD claims the short form assessment to be Merton-compliant and to have no qualitative difference from a local authority assessment – I am unable to accept the SSHD’s arguments in full. In particular, the requirements set out in the case law (and the SSHD’s pre-existing policies) for an appropriate adult to be present, and for a ‘minded to’ (or ‘provisional decision’) opportunity, exist because they are necessary elements of a fair and appropriate process (containing appropriate safeguards) designed to assess a person’s age in the absence of documentary records and given the fragility of reliance on appearance and demeanour save in obvious cases. In my view, those features are equally necessary in order to make a reliable assessment of age at the initial stage (and even applying a ‘clearly an adult’ standard) of an individual whose appearance and demeanour do not already indicate that he/she is obviously an adult. That is all the more so in circumstances where the individual in question has only in the last 24 hours reached the end of a usually long and arduous journey, which is bound to impact on his/her ability to respond cogently to questioning about details of his family history, education, journey to the UK and life narrative, at least without the assistance of an appropriate adult and a careful ‘minded to’ process. The risk of adverse inferences wrongly being drawn from incorrect or incomplete answers given due to fatigue and/or misunderstanding in such circumstances is obvious.
  5. I also do not consider that the SSHD is assisted in this context by the statement at AB § 35 that there may come a point when an experienced social worker considers they have conducted sufficient inquiries to be confident that the person in front of them is either an adult or a child. Other than in clear or obvious appearance/demeanour cases, such a point can only properly be reached where the social workers’ view (viz that sufficient enquiries have been made) has itself been based on a reliable process in the assessment interview so far. I do not consider that that can occur where the process has, from the outset, lacked features which are necessary in order to ensure the reliability of the views formed.
  6. I do not rule out the possibility of conducting a lawful initial age assessment, in a non-obvious case – i.e. where individual’s physical appearance and demeanour do not indicate that he/she is obviously over 18 – directly after the individual arrives in the UK. However, in my view it is inconsistent with the principles set out in the case law, including the need to conduct a fair and careful assessment, to seek to assess age in a non-obvious case (in the sense I have just indicated) in circumstances where an individual who has just arrived at the UK and been detained (i) does not have the support of an appropriate adult and (ii) is not given a ‘minded to’ opportunity.
  7. The position in situation (2)/(c)(i) is in my view similar, even if arguably slightly less clear. Here, the KIU officer is minded to form the view that the claimant’s physical appearance and demeanour very strongly suggests that they are 25 years of age or over, but the social workers (whilst considering the claimant still to be ‘potentially’ clearly an adult) disagree. That disagreement in my view has the result that the case can no longer necessarily be regarded as a clear one in the sense referred to in B v Merton, FZ v Croydon, K v Milton Keynes or Assessing age. As a result, the considerations set out in §§ 104-111 again apply, or (at least) they apply save in the subset of cases where the social worker does consider the individual to be obviously an adult even if not obviously over 25.
  8. The SSHD makes the point that the Guidance does not mandate the absence of an appropriate adult, nor the lack of a ‘minded to’ process, even if both were absent in the present cases. Moreover, the Guidance requires the social workers to comply with the applicable age assessment case law and policy guidance. However, the Guidance also makes express reference to the report form, which by the use of yes/no tick boxes would seem to direct the social workers that both are optional features of the process. Further, the ‘short form’ nature of the process virtually precludes any effective ‘minded to’ process. (By way of illustration, HT was told by the social workers that “An appropriate adult is not present during this short age assessment interview. The interview is usually about an hour in length”.) On that basis, and to that extent, the Guidance in my view sanctions or approves a process which is not in accordance with the law.
  9. Further, I consider that any prolongation of detention for the purpose of an assessment which is in practice not designed to comply with Merton principles (i.e. if the SSHD’s general practice is not to provide for an appropriate adult or to direct social workers to provide a ‘minded to’ opportunity) is unlawful, even if such non-compliance is not positively mandated by the Guidance. I use the word ‘if’ in the preceding sentence because (for the reasons indicated in section (E) below) I concluded that it was unfair for the Claimants at a late stage to advance evidence purporting to show a consistent practice in this regard, and it therefore seems to me that any conclusion I reach on this aspect of the matter can only be contingent.

The Court held that the assessments carried out in these cases were not lawful and thus the detention of the two individuals was not lawful. They do say that there would be some cases where the physical appearance of the individual was ‘very obviously’ an adult, but that unless that is the case a Merton assessment is going to be required. The Court does not explicitly say that 25 is the anchoring point, but clearly an age assessment that settles on 20 or 21 is going to be at risk of challenge as a short assessment and not a Merton assessment.

It would be nice if the Government would use their powers to give proper guidance on Age assessments, and nicer still if they would provide proper funding for those Local Authorities who by accident of geography find that the pressures on them to conduct such age assessments have increased exponentially and show no sign of ceasing.

We’re going to need more intermediaries

Much like everyone in Britain eventually having to take their turn being a member of the Sugababes, we are all also going to need to be conscripted into being an intermediary for a short period.

(By way of background, an intermediary is a specialised professional who helps support vulnerable witnesses in the Court process, both during their evidence and during the hearing and also assists the Court with a report setting out Ground Rules of what accommodations ought to be taken during the hearing – for example breaks, the ability for an intermediary to explain things or seek a break to explain things and often guidance to the Court and advocates on how questions should be formulated)

This Court of Appeal decision is a cousin to the last case I wrote about, in that it is an appeal of a decision which was granted because the Court had not considered something that was never raised with them at the time.

After the decision was made by the Court, those representing A (who was not the mother of the child in question S, but the mother of another child J and who became an intervener in the proceedings and the Court made findings about her in relation to the child S) became concerned that the mother ought to have had an intermediary in the first set of proceedings – there had not been a cognitive assessment of her and those representing her had at the time not had a concern that she needed either a cognitive assessment or an intermediary.

In linked proceedings relating to J, cognitive assessments and an intermediary assessment had been undertaken, and that caused those representing the mother quite rightly to reflect on whether she ought to have had similar support in the original proceedings.

S (Vulnerable Party: Fairness Of Proceedings) [2022] EWCA Civ 8 (18 January 2022)

“The first report, dated 28 June 2021, on a cognitive assessment carried out by two psychologists, Dr Gary Taylor and Ms Lucy Howe, included the following passage:
“We are not recommending any special measures to enable [A] to participate in a hearing although she is likely to take benefit from there being regular breaks in the proceedings so that information can be explained to her in words that she can understand. Important information pertaining to the proceedings may need to be explained to her more than once. Professionals should ask her to repeat, using her own words, what has been said to her so that they can confirm her understanding.”
The second report, dated 7 September 2021, prepared by Dr Indira Josling, a consultant clinical and forensic psychologist, included the following paragraph:

“[A]’s cognitive functioning assessment showed that she is better at perceptual reasoning than verbal reasoning; she prefers written and verbal information to be presented in clearer formats extra time given to her to assimilate the material. Her full comprehension of what she may be reading may need further support and time and would not necessarily be immediate. I ensured that I gave [A] adequate time on all of her assessments to enable her to do so. I would also question whether she may need a separate assessment for dyslexia which may also present as a learning need. FSIQ score was assessed as being 88, low average. [A] may therefore require an advocate or intermediary in formal meetings, interviews and assessments to help assimilate written and verbal material and her comprehension needs may be better accommodated if other forms of communication were to be used e.g. flow diagrams, charts etc.”
On 18 November, A attended an assessment meeting with an intermediary employed by Communicourt Ltd. On 22 November, the day before the appeal hearing, an email was received by A’s solicitors from Communicourt in the following terms:
“I am recommending an intermediary for [A]. As she has difficulties with:
-processing long sentences
-understanding court specific terminology
-understanding and responding to complex grammatical structures
-understanding complex vocabulary
-processing simple verbal information
-remembering key dates, and often gets the detailed confused.”
On the basis of these assessments, Ms Suzanne Kelly, who represented A before the judge and before this Court, submitted that her client had hidden cognitive difficulties which were not apparent during these proceedings. She informed us that A had been able to give clear instructions and appeared to understand the advice provided and the proceedings. Towards the end of A’s evidence, Ms Kelly had some concerns that she might have some difficulties, although it was not clear that these were cognitive issues, as opposed to misunderstanding questions which were long, complex and multifaceted. Ms Kelly added that, as a result of the Covid-19 pandemic, she and her instructing solicitors had never met A in person before the appeal hearing. All instructions had been taken over the telephone.”

(I pause here to say that in the context of care proceedings where a cognitive assessment is undertaken a full scale IQ of 88 is not particularly low and would not tend to ring any alarm bells. It is low average. Hence my opening remarks – if intermediaries are going to be necessary for cases where a parent or witness has an IQ of 88 then there are going to be a LOT more intermediaries involved in care proceedings)

The Local Authority and the mother of S opposed the appeal.

“These assertions are, of course, all made “after the event”, after A had serious findings made against her after a long hearing before a Circuit Judge. On behalf of the local authority, Ms Sally Stone QC did not oppose the application to amend the grounds of appeal, but opposed the appeal on this, and the other, grounds. She relied on the fact that no one had expressed concern about A’s cognitive functioning or understanding at any stage in the proceedings up to and including the fact-finding hearing. In that period, A was able to give detailed instructions to her solicitors and to participate fully in the hearing. Ms Stone took us to a number of examples in the transcript where, she suggested, it is clear that the appellant was competent to give evidence. Ms Stone drew attention to A’s use of language and to her ability to answer back, for example at one point saying “I’m not having you put words into my mouth”. Ms Stone also contended that A’s use of various words (“insinuate”, “tendency”) shows that she had a good command of vocabulary. In the circumstances, Ms Stone submitted that there was no reliable evidence that A was denied a fair trial.”

The Court of Appeal granted the appeal

“We have focused on the issue of vulnerability in cases like the present involving parties or witnesses with limited understanding. There are other equally important provisions in Part 3A applying to victims or alleged victims of abuse and intimidation. All such provisions are a key component of the case management process which ensures compliance with the overriding objective of enabling the court to deal with cases justly. As King LJ observed in Re N (A Child) [2019] EWCA Civ 1997 at [53]:
“Part 3A and its accompanying Practice Direction provide a specific structure designed to give effective access to the court, and to ensure a fair trial for those people who fall into the category of vulnerable witness. A wholesale failure to apply the Part 3 procedure to a vulnerable witness must, in my mind, make it highly likely that the resulting trial will be judged to have been unfair.”
It does not follow, however, that a failure to comply with these provisions, whether through oversight or inadvertence, will invariably lead to a successful appeal. The question on appeal in each case will be, first, whether there has been a serious procedural or other irregularity and, secondly, if so, whether as a result the decision was unjust. We are alive to the fact that many witnesses will give their evidence in a way which falls short of the standard that they would have wished for, or their advocates had hoped. Sometimes, this may be because of the very nature of human frailty, at other times it may be because a witness was deliberately deflecting or obfuscating or, worse still, lying.
Returning to the case under appeal, we have considerable sympathy with the judge. We are keenly aware of the pressures on judges hearing complex care proceedings, greatly extended by the problems caused by the Covid-19 pandemic. For reasons which it is unnecessary to spell out in detail here, this case presented the court with a range of challenging case management issues, concerning drug testing, mobile phone records, and police disclosure. Given the particular care which the judge devoted to ensuring that X had a fair opportunity to give her evidence, we feel confident that she would have adopted an equally careful approach to A’s evidence had she been aware of her difficulties. In the event, no party or legal representative identified the possibility that A was or might be a vulnerable person because of impaired level of comprehension and we are satisfied that she was fairly treated within the context of what was then known. We acknowledge the difficulties mentioned by Ms Kelly facing A’s legal team who, because of the pandemic, were unable to meet their client face to face until the appeal hearing. We observe, with the great benefit of hindsight available to this Court, that legal representatives should be particularly vigilant to detect possible vulnerabilities in their clients when they are unable to meet them in person. In this case, A’s difficulties were not immediately evident to Ms Kelly who only became concerned about her client’s level of understanding towards the end of the hearing. It is notable that the need for an intermediary was not identified in the initial cognitive assessment carried out by Dr Taylor and Ms Howe in June 2021 and the extent of A’s difficulties only became apparent in the subsequent assessments carried out by Dr Josling and Communicourt.
Nevertheless, we have reached the clear conclusion that the failure in this case to identify A’s cognitive difficulties and to make appropriate participation directions to ensure that the quality of her evidence was not diminished as a result of vulnerability amounted to a serious procedural irregularity and that as a result the outcome of the hearing was unjust. Of course, conducting the hearing over nine days, the judge was in the best position to make an assessment of the demeanour and competence of the witness, albeit in less than optimal conditions via a video link. But the new material that we have now read has an obvious bearing on the demeanour and credibility of the appellant. In some cases, there will be other evidence supporting the findings so that a flawed assessment of a witness’s evidence will not warrant any interference with the decision. In this case, however, the judge’s assessment of A’s character and plausibility of the witness were central to her ultimate findings.
In her judgment, the judge observed that assessing the parties’ evidence was not a straightforward matter and at times it was “very difficult to identify the truth”. The judge’s attribution of responsibility for the injuries between X and Y on one hand and A on the other was based on a close analysis of the accounts given by all three adults, each of whom had lied at various points. In our view, there is a significant possibility that this evaluation would have been refined if not revised by knowledge that A had difficulties of comprehension as a result of which the quality of her evidence, as defined in rule 3A.1, was likely to be diminished. As demonstrated in the passages from the judgment cited above, the decision was substantially based on the judge’s assessment of A’s evidence, from which she drew a number of conclusions adverse to A’s credibility. These included conclusions about (1) the reasons A gave for her lies about her ketamine abuse; (2) her apparent failure during her evidence to treat the drug issue with appropriate seriousness; (3) her account of how on the evening of 19 January she had noticed the abrasion to J’s arm but not the abrasion on his face; (4) her failure to inform school staff about the injuries, and (5) the delay of forty minutes in reporting the injuries to social services. It is likely that the judge’s interpretation of A’s acts and omissions on the evening of 19 January and the following morning would have been materially affected by an understanding of A’s intellectual and communication problems. Most striking of all is the judge’s description of A as being “very deflective” during her oral evidence, “able to answer the question in a way that lost the actual question”, manipulative and “very calculating”. There is at least a significant possibility that this assessment would have been different had the judge known of A’s difficulties as subsequently explained by Dr Josling.
We therefore grant A permission to amend her grounds of appeal and to adduce the evidence relating to her cognitive difficulties cited above, and we allow the appeal on the grounds of procedural irregularity set out in the amended ground. It is important to stress that we are not saying that the judge’s findings were wrong – we are not in a position to say that one way or the other. Whilst we agree that, had the appellant been treated as a vulnerable party or witness, a ground rules hearing would have taken place and the hearing conducted differently, that would not necessarily have led to a different outcome. We are allowing the appeal on the basis that the decision was unjust because there are strong reasons to suspect that A did not have a fair opportunity to present her case.”

Special measures

This is an interesting appeal, heard in the High Court by Mrs Justice Judd DBE.

M (A Child) [2021] EWHC 3225 (Fam) (01 December 2021)

For background “Special measures” is the blanket term given for a range of solutions which can be applied to assist a witness considered to be vulnerable, particularly in a case where there are allegations of abuse from one adult towards that witness. For example, giving evidence behind a screen or by some sort of video-link, ground rules about being able to communicate that a break is needed and so on.

This case was a private law case, involving arguments about where M who was two years old should live and how she should spend time with her parents. As part of that, allegations of very serious sexual abuse from the father towards the mother including an allegation of rape were made.

In this case, at the fact finding hearing, there were no preliminary applications for special measures, nor any consideration of the possibility that such measures might be required.

At the conclusion of the finding of fact hearing, the Judge found that some of the allegations made by the mother were not proven by her and thus (as the law is binary) did not occur.

The mother engaged a fresh junior barrister and Queen’s Counsel for her appeal. The appeal was on two limbs – that the judgment was flawed in its analysis and conclusions and that the Court had failed to consider whether special measures were required and that this failure rendered the process and hence the conclusions unfair. As part of that, they also argued that the extent to which mother’s sexual history was the subject of cross-examination was excessive and that a special measures hearing would have properly addressed that in advance.

The father opposed this, arguing that those representing the mother at the hearing had not raised with the Court any suggestion of special measures and they could not point to any evidence that the lack of them had been detrimental to the mother.

The Court looked at the rules in relation to vulnerable witnesses, and referred to the new statutory provisions which had not been in place at the time of the fact finding hearing

25. Since the hearing at first instance in this case, Parliament has passed the Domestic Abuse Act 2021, which includes s63 which provides that where a person ‘is, or is at risk of being, a victim of domestic abuse’, the court must assume that their participation and evidence will be diminished by reason of vulnerability. This triggers arrangements for participation directions or special measures, and is formally adopted into the Family Procedure Rules 2010 as rule 3A2A

The High Court considered that these Rules had not been properly followed:-

It does not appear from any of the orders that the question of participation directions was considered or determined by the court. The provision that the mother and father should attend court on different days to give evidence appears from the wording to have been made in order to meet the restrictions on too many parties being in one room as a result of Covid.
The provisions of rule 3A and PD3AA are mandatory. The word used is ‘must’ and the obligation is upon the court, even though the parties are required to cooperate.
Rules 3A.4 and 3A.5 required the court to consider whether the mother’s participation in the proceedings was likely to be diminished by reason of vulnerability both when giving her evidence and otherwise. There can be no doubt that the mother came within the category of those who might be vulnerable, as someone who was alleging domestic and sexual abuse.
The mother was fully represented throughout the proceedings, but the obligation to consider vulnerability is upon the court. I entirely accept Mr. Tyler’s submission that counsel for the mother (and possibly the father too) would be expected to remind the judge(s) of this, and that (as privilege has not been waived) we cannot know whether or not there was a conscious decision not to ask for special measures. These points do not, however, relieve the court of the responsibility it has been given under the rules. Whilst I also take note of the the dicta of May LJ in Jones v MBNA Bank [2000] EWCA Civ 514, as cited to me, there is a fundamental difference between the situation there and this one.

This was a very sensitive case where there were allegations of the utmost seriousness. They were of two rapes whilst the mother was under the influence of sedation and either drink or drugs respectively, and a third of anal rape when she was eight months pregnant. She also made overarching allegations of controlling, manipulative and intimidating behaviour on the part of the father.
The mother produced some explicit videos in support of her allegations of rape. In response the father
filed a witness statement setting out detailed evidence of the mother’s sexual activities, including numerous screenshots of her naked and masturbating with him watching. He produced a large number of explicit videos of their consensual sexual activities, and argued that her activities as a ‘cam girl’ demonstrated that, far from being intimidated into sexual acts by him, (including being videoed) she was confident, adventurous and open about her body. The court bundle for the trial contained several large pornographic photographs of her and several more small ‘stills’ exhibiting videos. She was asked about these matters extensively as part of the father’s case that the sexual relationship between them was an equal one. Her case was that she was doing this to please him and keep him.
There was evidence, that the judge referred to, that the mother had some long term underlying fragilities, and that she was anxious. In one of his statements the father said that he ended the relationship because the level of emotional and psychological support she needed was very frustrating and emotionally exhausting.

It must be clear from the matters I have set out above that this was a case which cried out for participation directions and a ground rules hearing, not just for the sake of the mother, but for the integrity of the court process itself. The purpose of the rules and Practice Direction is to avoid the quality of the evidence being diminished. Here, the need for directions went beyond the need to consider whether the parties should not come into physical contact in the court room or building. Matters, such as whether the mother should be visually shielded from the father as she gave her evidence, and what topics should be covered in cross examination, were highly relevant.

The Court held that the appeal on both limbs should be granted and the case submitted for re-hearing.

It flags up the very important issue that even where a party does not apply for Special Measures or raise them as an issue, the Court must itself be alive to the issue and actively consider whether there are vulnerable witnesses and ask for the assistance of the advocates and parties in determining what special measures should be in place.

This was very obviously a case where special measures were likely to be appropriate and had they been applied for been likely to have been granted, but the failure or decision on behalf of the mother’s team not to do so did not prevent them from successfully appealing the findings of fact made as a result of a flawed process.

Whilst this arose in private law proceedings, the same principles will apply in public law proceedings and those advocates who are representing parties to those proceedings will need to ensure that the issues are properly ventilated and addressed, even if they do not materially affect their own client, to avoid the risk of an appeal.

Covid Metamorphoses

Vaccinations have long been a sore point in family law litigation, and as soon as the Government decided that the Covid vaccine was safe and medically recommended to prescribe to children, it was always going to be the subject of litigation.

Where children are in care, can the child’s wish to have the vaccine override the parents opposition, can the Local Authority authorise the vaccination where the parent objects?

The High Court have given a very clear decision – one which may not be supported by everyone, but it is such a divisive topic there was never going to be a decision to please everyone.

C (Looked After Child) (Covid-19 Vaccination) [2021] EWHC 2993 (Fam) (09 November 2021)

In short :-

a) For MOST cases, the LA can consent under s33 where the child is subject to a Care Order or Interim Care Order. There might be some cases where the child’s individual medical history means there might be risks over and above the general population which if ‘grave’ should be a case where the LA asks the Court to decide.

b) If the parent objects, they have the ability to make an application under the Inherent Jurisdiction to prevent the vaccination

c) The LA DO need to do an individual assessment for each child as to whether the vaccination should proceed under s33 or be the subject of a Court application

Accordingly, applying the principles articulated by the Court of Appeal in Re H, I am quite satisfied that under s.33(3)(b) of the Children Act 1989 a local authority with a care order can decide to arrange and consent to a child in its care being vaccinated for Covid-19 and/or the winter flu virus notwithstanding the objections of the child’s parents, when (i) such vaccinations are part of an ongoing national programme approved by the UK Health Security Agency, (ii) the child is either not Gillick competent or is Gillick competent and consents, and (iii) the local authority is satisfied that it is necessary to do so in order to safeguard or promote the individual child’s welfare. There is no requirement for any application to be made for the court to authorise such a decision before it is acted upon.
In those circumstances it is unnecessary for me to exercise the inherent jurisdiction, but had it been necessary I would have had no hesitation in concluding that it is in C’s best interests to have both vaccinations given all the circumstances including the balance of risks of having and not having the vaccinations, and C’s own wishes and feelings.

S. 33(3) of the Children Act 1989 does not give a local authority carte blanche to proceed to arrange and consent to vaccinations in every case. Firstly, it is acknowledged that local authorities should not rely on s.33(3)(b) in relation to grave decisions with enduring or profound consequences for the child. I cannot discount the possibility that an individual child’s circumstances might make such a decision “grave”. Secondly, pursuant to s.33(4) a local authority must make what has been termed “an ‘individualised’ welfare decision in relation to the child in question prior to arranging his or her vaccination.” (per King LJ, Re H at [33]). Thirdly, as King LJ observed in Re H at [99] in the event that a local authority proposes to have a child vaccinated against the wishes of the parents, those parents can make an application to invoke the inherent jurisdiction and may, if necessary, apply for an injunction under section 8 Human Rights Act 1998 to prevent the child being vaccinated before the matter comes before a court for adjudication.
Nevertheless, in the great majority of cases involving looked after children, no application will need to be made by the local authority to the court in respect of decisions to proceed with Covid-19 and/or flu virus vaccinations provided under a national programme, even when there is parental objection.

There is no authority because nobody has thought it plausible up till now to question them

This is a very perplexing case.

It is an appeal from

Re FS v RS and JS 2020

decided by Sir James Munby.

I honestly can’t improve on Sir James Munby’s opening in that judgment, so let’s crack into it

This is a most unusual case. Indeed, so far as I am aware, and the very experienced counsel who appear before me do not dispute this, the case is unprecedented. Certainly, the researches of counsel have identified no decision directly in point. The applicant’s own description is that his applications are “novel.” I suspect that the initial reaction of most experienced family lawyers would be a robust disbelief that there is even arguable substance to any of it.
The cynic will recall the words of Diplock LJ in Robson and another v Hallett [1967] 2 QB 939, 953:
“The points are so simple that the combined researches of counsel have not revealed any authority upon them. There is no authority because no one has thought it plausible up till now to question them.”
But if at the end of the day the answer is clear, as in my judgment it is, the points are not so simple as one might at first suppose. Equally in point, is the observation of Thorpe LJ in Moses-Taiga v Taiga [2005] EWCA Civ 1013, [2006] 1 FLR 1074, para 21, that:

“the absence of … authority … only illustrates the tendency for propositions of universal acceptance to be difficult to support by reference to authority.”
But is the universal assumption correct? I leave the last word to Megarry J, who in Hampstead & Suburban Properties Ltd v Diomedous [1969] 1 Ch 248, 259, said with grim humour:

“It may be that there is no direct authority on this point; certainly none has been cited. If so, it is high time that there was such authority; and now there is.”

The nub of the case is that Mr S is 41 years old. His parents are married to one another and live in Dubai. Mr S has a series of impressive qualifications- he has a First in Modern History, he is a qualified solicitor, he has a Masters in Taxation and is studying for Chartered Tax Advisory and Law School Admissions Test examinations. His parents have provided him with a rent-free flat in central London, and up until this litigation had been paying the utility bills.

Mr S was asking the Court to make an order that his parents financially support him.

Yes, you read that right.

I suspect that the initial reaction of most experienced family lawyers would be a robust disbelief that there is even arguable substance to any of it

Yep, that certainly describes my view.

I would certainly say that those representing him left no stone unturned in their efforts to find a legal basis for suggesting that the Court should have jurisdiction to make married parents pay maintenance for their 41 year old professionally qualified son.

Siddiqui v Siddiqui & Anor [2021] EWCA Civ 1572 (02 November 2021)

Could it be s27 of the Matrimonial Causes Act 1973?

  1. Section 27 of the MCA 1973 is headed: “Financial provision orders, etc., in case of neglect by party to marriage to maintain other party or child of the family”. Section 27 provides:

“(1) Either party to a marriage may apply to the court for an order under this section on the ground that the other party to the marriage (in this section referred to as the respondent) –
(a) has failed to provide reasonable maintenance for the applicant, or
(b) has failed to provide, or to make a proper contribution towards, reasonable maintenance for any child of the family.

I suspect it doesn’t take a Court of Appeal Judge, or even a lawyer to work out why s27 doesn’t work. Hint , a child is not a ‘party to a marriage’

Then Schedule 1 of the Children Act 1989, which does provide provision for a child to apply for financial support from a parent, and there are some breadcrumbs of this applying to children over 18 who are still in education (which Mr S sort of is), but the problem there is

Schedule 1 para 2 (4) No order shall be made under this paragraph at a time when the parents of the applicant are living with each other in the same household.

And Mr S’s parents clearly are.

The next attempt was the inherent jurisdiction, which sort of expanded into vulnerable adults who did not meet the tests of the Mental Capacity Act 2005.

The judge rejected this argument for three reasons. First, at [113], because the asserted claim “lies far outside the accepted parameters of the branch of the inherent jurisdiction prayed in aid by the applicant”. The basis of the jurisdiction was, at [114], “to protect and facilitate” a vulnerable adult’s exercise of autonomy.
Secondly, at [123]: “The second reason why the inherent jurisdiction is not available to assist the applicant is because of the fundamental principle that the inherent jurisdiction cannot be used to compel an unwilling third party to provide money or services”. In support of this reason, the judge cited from a number of authorities including N v A Commissioning Group and other [2017] AC 549, a case concerning an application under the Mental Capacity Act 2005, in which Baroness Hale said, at [35]:
“the court only has power to take a decision that P himself could have taken. It has no greater power to oblige others to do what is best than P would have himself. This must mean that, just like P, the court can only choose between the ‘available options’. In this respect, the Court of Protection’s powers do resemble the family court’s powers in relation to children. The family court … cannot oblige an unwilling parent to have the child to live with him or eve
n to have contact with him, any more than it can oblige an unwilling health service to provide a particular treatment for the child.”
Thirdly, at [132]:
“The third reason why the inherent jurisdiction is not available to assist the applicant is because of the fundamental principle which I summarised in In re X (A Child) (Jurisdiction: Secure Accommodation) [2016] EWHC 2271 (Fam); [2017] Fam 80, where I referred at para 37 to:
“the well known and long-established principle that the exercise of the prerogative – and the inherent jurisdiction is an exercise of the prerogative, albeit the prerogative vested in the judges rather in ministers – is pro tanto ousted by any relevant statutory scheme.”
The judge set out, at [137], his assessment of the legislation:
“Between them, the 1973 Act and the 1989 Act provide a comprehensive statutory scheme dealing, along with much else, with the circumstances in which a child, including, as here, an adult child, can make a financial claim against a living parent (I put the point this way to make clear that I have not overlooked section 1(1)(c) of the Inheritance (Provision for Family and Dependants) Act 1975). More specifically, the legislation, in its general reach, applies to the applicant, as to every adult child, and is comprehensive in relation to cases falling within its ambit. Furthermore, as Mr Warshaw and Mr Viney point out, the legislation deals explicitly with the very claims the applicant seeks to make; indeed, in the case of the 1989 Act it explicitly prohibits the claim he seeks to pursue. There is accordingly, in my judgment, no scope for recourse to the inherent jurisdictio

So that is also out.

Next, under the Human Rights Act that there is discrimination under article 14, a breach of Mr S’s article 6 rights and that the Court should read down the existing legislation to allow his application.

(Bear in mind, this is all litigation to decide whether the Court even has power to make the orders Mr S wants – no consideration yet of the merits if any of his application)

The argument here was that Mr S, as a child of parents who are not separated, is being treated differently to a child of parents who are (as he would be able to make a Schedule 1 Children Act application if his parents were separated.)

I am sure that Courts, particularly the Court of Appeal, do not have swear jars, but if they did I would greatly admire the forebearance of anyone who wasn’t chipping in quite heftily. For my part, I can’t read this judgment without muttering “For F***s sake”

110. In my view, it is clearly not. As Mr Warshaw submitted, not permitting an order to be made in favour of a child whose parents still live together does not run counter to the purposes of article 14 or the aim of the ECHR. I also agree with the judge, for the reasons he gave, when he said, at [88], that “the suggested analogy with ‘birth status’ is wholly false”. Apart from the fact that birth status is expressly included in article 14, describing or defining a child as “legitimate” or “illegitimate”, because of the marital status of their parents, is clearly an identifiable characteristic, or status, attributable to the child. There is no equivalence or correlation between a child’s status being defined by whether their parents are or are not married, as relied on by Mr Southey, and the Appellant’s position.
Being the child of parents who are living together in the same household is not a personal or identifiable characteristic any more than being the child of parents who have divorced is a personal characteristic. It is not something the child has or which, in any way, defines the child. Being the child of parents who are not separated is simply a bar to the court making an order under paragraph 2 of Schedule 1. In essence, the Appellant’s complaint is, as Leggatt LJ said, “merely a description of the difference in treatment itself”.
Analogous Situation
I also do not consider that a child of parents who are living together is in a comparable or analogous situation to a child whose parents are separated. As set out in Clift v UK, at [66], “the requirement to demonstrate an ‘analogous position’ does not require the comparator groups to be identical”. What is required is that the “applicant must demonstrate that, having regard to the particular nature of his complaint, he was in a relevantly similar situation to others treated differently”. This is sometimes said to require a specific and contextual analysis.
As set out in the judgment below, the whole history of the relevant statutory provisions show that they are giving the court powers to make financial orders “when the parents’ relationship has broken down”, as set out in the 1982 Report (para 6.31). That is their purpose and objective. They are not focused on needs, as Mr Southey submitted. Needs are clearly relevant to the court’s determination of what, if any, order should be made but only in the context of the parents’ relationship having broken down.
The fact that the jurisdiction to make orders under sections 23 and 24 of the MCA 1973 depends on the parents’ relationship having broken down is self-evident. It is also clear from section 27 because it depends on the failure to provide reasonable maintenance. It is also clear from paragraph 2(4) of Schedule 1 which, as referred to above, was expressly included to ensure that orders could only be made in favour of children “over the age of 18 whose parents are separated”, as made clear by the 1982 Report and as stated by the Lord Chancellor.
Mr Southey additionally submitted that the challenged provisions amount to indirect discrimination because, as set out in DH v Czech Republic at [175], “a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group”. The present case is far removed from the facts of DH v Czech Republic which concerned racial discrimination in education in that a disproportionate number of Roma children went to special schools. I do not consider that the principle or approach referred to in that case applies to the circumstances of the present case. All children whose parents are not divorced or separated cannot obtain an order and I do not consider that the challenged provisions can be said to have disproportionately prejudicial effects on a particular group as set out in DH v Czech Republic or as submitted by Mr Southey.
Further, again, as set out in DH v Czech Republic, at [175], the difference in treatment must be between “persons in relevantly similar situations”. In the present case, as explained above, the Appellant is not in a relevantly similar situation to adult children whose parents have divorced or are not living together. As Lady Hale did in R (Stott), at [213], I would quote what Lord Nicholls said in R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173 at [3]:
“There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous.”

In my view, there is an obvious and relevant difference in the present case. The difference is obvious because the Appellant seeks to compare himself with children whose parents are divorced or separated. It is also relevant because, to repeat, the purpose of the legislation is specifically to address the consequences of parents either being divorced or separated or, to put it more broadly, the breakdown of the parents’ relationship.
I would repeat that the Appellant is not treated differently because of his health status or disability. They are not relevant features in the context of this case. Further, as explained above, the Appellant does not have a status which engages article 14 at all.

The appeal was unanimously refused. The judgment doesn’t go on to say whether Mr S’s parents sought an order for costs, nor whether they were ceasing to allow Mr S to live in their London flat unless he starts paying his way. Or indeed whether they are writing a will that cuts Mr S off completely. If they don’t do any of that, they are kinder and better humans than I.

On the plus side, there’s a powerful incentive for Mr S’s parents to never ever separate, because the second they do, the Schedule 1 bar falls away and off we go again. I’ve heard of people staying together for the sake of the children, but this is a new wrinkle.

Yet more inherent jurisdiction and absence of secure beds

The TL;DR background on the history here.

Parliament created in s25 Children Act 1989 a statutory mechanism for Court oversight and sanction of situations in which children who are looked after by Local Authorities have their liberty restricted (generally but not exclusively by locked doors). These are called ‘secure accommodation orders’. Children can only be placed in a s25 secure accommodation in a children’s home specifically approved by Ofsted for that purpose.

There’s a national crisis in secure accommodation beds. Demand is massively outstripping supply, and has been for many years. That led to weird situations where children in Southampton were being put in children’s homes in Scotland… If there’s not an available secure accommodation bed for a child, section 25 doesn’t solve the problem. What you need is more secure beds. BUT if you don’t have them, what then?

This led to a workaround whereby the inherent jurisdiction of the High Court (what some oafish commentators label ‘magical sparkle powers’) were used to authorise a child being placed somewhere where their liberty was restricted but NOT in a children’s home approved by Ofsted for that purpose.

That was a sticking plaster and the High Court has been publishing judgments for at least four years saying that this needs a better solution and shouting it from the rafters.

The issue went up to the Supreme Court, who ruled that the use of inherent jurisdiction for that purpose was lawful.

The Government made some new Regulations – unfortunately, these weren’t ‘we’re building 20 new secure children’s homes’ but instead ‘we’re closing down the bit of the old regulations that allowed Local Authorities to place children in these creative placements, so rather than solving the problem, they instead said “we don’t like the bandaid that the High Court is using as a last resort, so we’re going to make it unlawful for Local Authorities to use band-aids”

There’s now litigation as to whether the High Court can use their inherent jurisdiction to say that THEY the High Court can say that they approve the bandaid (even whilst knowing that this doesn’t allow the Local Authority to use it) – which the High Court has said yes sort of on, and now this particular case grapples with that in more detail. (I think the hope had been that Ofsted would be invited to grant a temporary approval for individual placements)


The TL;DR is so long it needs its own TL;DR

Not enough secure beds, the loophole the High Court worked around was closed, the loophole to work around the closing of the loophole is being litigated about here.

Sorry, this is pretty dull for non-lawyers. Hopefully there will be a less technical case to write about soon.

Derby CC v CK & Ors (Compliance with DOL Practice Guidance) (Rev1) [2021] EWHC 2931 (Fam) (03 November 2021)

This judgment concerns a further question that has now arisen in three cases, including FD21P00578, concerning the range of circumstances in which the jurisdiction I found subsists may be applied.  Namely, whether, given the central role accorded to the President’s Guidance by the Supreme Court in Re T and by this court in Tameside MBC v AM & Ors (DOL Orders for Children Under 16), it remains open to the court to exercise its inherent jurisdiction in cases where a placement either will not or cannot comply with the Practice Guidance.  The spectrum of the submissions made to the court on this question has been bracketed at one end by the submission of each of the local authorities that the answer to this question is “yes”, and at the other by the submissions of the Secretary of State for Education and Ofsted that the answer to this question is “no”.  Whilst each of the cases before the court concerns a child under the age of 16, the answer to the question posed in this case is applicable to all cases in which the Practice Guidance applies

Do you know, I sort of agree with both sides here. Without an injection of fresh beds, the use of inherent jurisdiction is the only way to find the most vulnerable children that we deal with beds that they need, so yes. But the use of inherent jurisdiction to workaround a bed shortage and sidestep the clear provisions of s25 is wholly wrong in my opinion, so no. Of course, the vexing thing is that the High Court’s middle ground of using inherent jurisdiction whilst shouting for help is the best course of action but the cries for help were heard and not ignored. The High Court were basically saying, “we’re shipwrecked and it is of course wrong to eat the ship’s cat, but if it keeps the crew alive until rescue comes, it is the best of a bad situation’ and the Government are saying ‘we’ve seen your flares and we’ve sent you some leaflets from the RSPCA and PETA rather than a rescue ship’

Anyway, I should also tell you that much like the film Dune, this case does not conclude matters, and there’s going to be a part 2. This Part 1 looks at whether the Court has the legal power to sanction a placement of a child under the inherent jurisdiction where the placement would be unlawful under the new Regulations. Part 2 will look at the circumstances of the individual four cases that have been joined together and what should happen in relation to each.

63. Having regard to the comprehensive submissions made by leading and junior counsel, and the legal provisions set out above, I am satisfied that an unwillingness or inability to comply with the terms of the President’s Practice Guidance does not act per se to oust the inherent jurisdiction of the High Court to authorise the deprivation of a child’s liberty in an unregistered placement confirmed in Re T.

64.However, I am equally satisfied that compliance with the Practice Guidance is central to the safe deployment of that jurisdiction and to its deployment in a manner consistent with the imperatives of Art 5. Within this context, whilst accepting that an unwillingness or inability on the part of a placement to comply with the terms of the President’s Practice Guidance is a factor that informs the overall best interests evaluation on an application under the inherent jurisdiction, and that each case will turn on its own facts, I am satisfied that the court should not ordinarily countenance the exercise the inherent jurisdiction where an unregistered placement makes clear that it will not or cannot comply with the requirement of the Practice Guidance to apply for registration. My reasons for deciding are as follows.

65. The first point that the court must acknowledge at the outset is that there remains no entirely satisfactory child-centred answer to the question before the court in the absence of a concerted effort by those responsible to remedy the current acute shortage of clinical provision for placement of children and adolescents requiring assessment and treatment for mental health issues within a restrictive clinical environment, of secure placements and of registered placements. The Practice Guidance was promulgated by the President of the Family Division to assist in addressing an urgent and acute problem borne of this lack of resources. On the one hand, failure to follow the Practice Guidance will deprive children of the regulatory protection Parliament has deemed they should benefit from. But, in the context of the continuing and acute shortage of appropriate resources, following the Practice Guidance can risk a vulnerable looked after child having nowhere to go. The dilemma is eloquently described in the written submissions of Ms Morgan and Mr Paisley on behalf of QV:

“[37] There is a circularity which is, for the guardian as she contemplates the position for QV in this case and similarly placed young people in others, problematic. It is a circle which is impossible to square: the Guardian all things being equal would make the submission that the solution at which the Court should arrive if it concludes that the relevant body ‘won’t’ apply to register or is failing to comply or is dragging its corporate feet in relation to the President’s Guidance or is quite simply making use of the jurisdiction because it remains available to it and is the path of least resistance would be for the Court to say in effect ‘thus far and no further’ and to bring it to an end. That would be in all likelihood, a way in which the difficulties (which to return to the beginning are difficulties of resource above all else) move from the arena of the court where they should not be and into the province of others. Such an approach however comes at a cost; and the cost is paid by the cohort of vulnerable children and young people for whom there is then nothing in the way of a protective jurisdiction at all. So it is that the Guardian steps away from the otherwise obvious submission that the Court should stand firm; should pursue the reasoning at [62] in Wigan BC v Y to its logical conclusion; should refuse to sanction the jurisdiction. The welfare of this or another subject child is nowhere in that approach never mind paramount or primary.

Compliance or non-compliance with Practice Guidance is not determinative of the existence of the court’s substantive jurisdiction. This is, I am satisfied, the plain position as a matter of law. The President’s Practice Guidance is non-statutory guidance. The Practice Guidance is not a Practice Direction, and even if it were, the authorities are clear that a Practice Direction cannot change the law. Further, as Lieven J made clear in Birmingham City Council v R & Ors at [19], the President cannot create law by way of issuing guidance. Within this context, I am satisfied that failure to comply with judicial practice guidance cannot oust the inherent jurisdiction of the High Court. The existence of the protective jurisdiction of the court does turn on conformity with a procedural requirement or requirements set out in practice guidance. The question for the court in such circumstances is whether that jurisdiction should be exercised where there has been non-compliance with the Practice Guidance.
It is important at this point to reiterate, as Mr Auburn sought to remind the court at a number of points during the course of his submissions on behalf of the Secretary of State, the question that is before the court. Namely, whether it remains open to the court to exercise its inherent jurisdiction in cases where a placement either will not or cannot comply with the Practice Guidance. As I have already noted, I am satisfied for the following reasons that, ordinarily, the answer to this question should be ‘no’. There is of course a further question of what is meant by ‘will not or cannot’. I deal with that question in more detail below.

There’s a lot of text here, but the answer to the question

“where the placement proposed is one which will not or cannot comply with the Regulations, can the High Court use their inherent jurisdiction and place there?”


There’s quite a bit of text on ‘will not or cannot’ – MacDonald J says that it turns on its own facts, but makes some general observations.

80. An unwillingness or inability to apply for registration in accordance with the Practice Guidance does not act to extinguish the court’s inherent jurisdiction. Rather, it borders and curtails the circumstances in which that jurisdiction can be deployed. Within this context, and having regard to the judgment of the Supreme Court in Re T and the matters to which I have referred above, I am satisfied that whilst an unwillingness or inability on the part of a placement to comply with the terms of the President’s Practice Guidance is a factor that informs the overall best interests evaluation on an application under the inherent jurisdiction, and that each case will turn on its own facts, the court should not ordinarily countenance the exercise of the inherent jurisdiction where an unregistered placement makes clear that it will not or cannot comply with the requirement of the Practice Guidance to apply expeditiously for registration.
81. As noted above, my conclusion invites the question what does “cannot or will not” mean in this context? It is not helpful or appropriate in my judgment to set out an exhaustive list of cases that will fall into one or other of these categories. Each case will turn on its own facts. However, some general observations can be made.
82. A provider that will not apply for registration, in the sense of refusing to do so, notwithstanding the terms of the Practice Guidance is unlikely to be a viable option for meeting the subject child’s best interests. Such a refusal by a provider is, in reality, a statement of intent not to comply with the law put in place by Parliament to safeguard and promote the welfare of the subject child through the imposition of a comprehensive and wide ranging regulatory regime. Given the burden placed on providers by an application for registration, such a position on the part of the provider may be understandable if the provider does not ordinarily make such provision, for example a private landlord, the owner of a holiday park or other venue not ordinarily involved in social care. However, it is placements in this category that are most likely to result in a wholly unsuitable placement for obvious reasons. Within this context, a refusal by a provider to apply for registration immediately following a placement deprives the child for the duration of that placement of regulatory oversight where it is arguably most needed. In the context of the cases before the court, the local authority considers that the placement for QV, a holiday park, will not consent to an application being made to Ofsted for registration.
In the circumstances, and whilst each case falls to be considered on its own facts, it is unlikely in the context of a refusal by a provider to apply for registration that the court will conclude that the exercise of the inherent jurisdiction to authorise the deprivation of the liberty of a child with that provider is in the child’s best interests. In such circumstances, the court may be required to make a very short order (measured in hours or days and not weeks) to hold the ring whilst alternative arrangements are put in place. This will particularly be the case where a placement is required immediately in order to meet the operational duties under Art 2 of Art 3 of the ECHR by keeping the child safe and the unregistered placement is the only means of achieving this (referred to as ‘in the moment cases’ in by Fordham J in R (on the application of Matthew Richards) v Environment Agency and Walleys Quarry Limited [2021] EWHC 2501 (Admin) at [50]). The operational duty of the court in such circumstances is to keep the child safe, however any authorisation given for a deprivation of liberty in that situation should be for the least time possible and a timetable for the identification of a placement that is registered or willing to apply for registration set by the court, registration of the placement being essential to ensuring that the child is kept safe in the medium and long term.
I accept that the Practice Guidance contemplates at [21] that registration may be refused following an application being made or that an application for registration may be withdrawn, and that the Guidance does not expressly prohibit the continuation of an unregistered placement in such circumstances. However, in my judgment, this does not detract from my overall conclusion that the court should not ordinarily countenance the exercise the inherent jurisdiction where an unregistered placement makes clear that it will not comply with the requirement of the Practice Guidance to apply for registration.
A person carrying on or managing a children’s home must apply for registration as a matter of law. Within this context, there is in my judgment a stark difference between a provider who makes an application and fails in the first instance (the chances of which can be significantly reduced by working in partnership with and taking advice from Ofsted once the application has been submitted) and the provider who refuses to apply or cannot apply. In the former situation, an attempt has been made to bring the child back within the regulatory regime mandated by Parliament, albeit that attempt has been unsuccessful. In such circumstances, the regulator has had a chance to consider the placement and the court must factor in the result when determining for the purposes of the Practice Guidance whether the placement of the child in the unregistered children’s home or unregistered care home service continues to be in the child’s best interests, and in particular whether, on the advice of the regulator, changes can be made to ensure a successful registration application in due course. In the latter situation, there has not even been an attempt to bring the child within the statutory regulatory regime, notwithstanding that that is what the law requires, with no opportunity for the independent regulator to consider the placement (because no application is made) and with the result that the child remains outside the statutory regulatory regime for the duration of the placement.
I also accept that, in light of the acute resource issues that have been the subject of other judgments handed down by this court and by other judges of the Family Division, cases may arise where an unregistered placement will not comply with the Practice Guidance with respect to an application for registration but no alternative placement is immediately available. Again, I am satisfied that this does not detract from my overall conclusion that the court should not ordinarily countenance the exercise the inherent jurisdiction where an unregistered placement makes clear that it will not comply with the requirement of the Practice Guidance to apply for registration under the statutory regime.
Again, it is important to remember that a person carrying on or managing a children’s home must apply for registration as a matter of law. In such circumstances, not to insist on compliance with the Practice Guidance would be to permit the providers who are unwilling to comply with the law to benefit from the lack of resources. Further, a child’s best interests falls to be evaluated taking into account all relevant circumstances. Whilst the absence of a placement may place the child at risk, the court must also take account of the fact that it is likely to be antithetic to a child’s best interests to be deprived of the protections of the statutory regulatory regime mandated by Parliament. Within this context, in the experience of this court, the providers that are unwilling to apply for registration of those offering placements that are the most problematic for vulnerable children in respect of which the court most regularly encounters a refusal to apply for registration, examples including holiday parks, private Air B&B properties, caravans and canal boats. These expose the child to a double deficit in the form of a sub-optimal placement that is also outwith the statutory regulatory regime designed to safeguard him or her. In such circumstances, for the court to acquiesce in the face of a refusal of a provider even to seek registration is to heighten significantly the risk to the highly vulnerable subject child.
Again, whilst each case turns on its own facts, it is unlikely in such circumstances that the court will conclude that the exercise of the inherent jurisdiction to authorise the deprivation of the liberty of a child in that placement is in the child’s best interests. Rather, in such cases and accepting the difficulties created by resource issues, after hearing the matter the court is likely to indicate its intention to refuse the application for authorisation and invite the local authority to present alternative proposals (as this court did in Wigan MBC v W, N & Y [2021] EWHC 1982 (Fam)). Again, in such circumstances, the court may be required to make a very short order (measured in days and not weeks) to hold the ring whilst alternative arrangements are put in place. Again, this will particularly be the case where a placement is required immediately in order to meet the operational duties under Art 2 of Art 3 of the ECHR by keeping the child safe and the unregistered placement is the only means of achieving this in an ‘in the moment’ case. Again, any authorisation given for a deprivation of liberty in that situation should be for the least time possible and a timetable for the identification of a placement that is registered or willing to apply for registration set by the court, registration of the placement being essential to ensuring that the child is kept safe in the medium and long term.
With respect to providers that “cannot” apply for registration, on behalf of Ofsted Ms Clement submitted that Ofsted does not recognise such a category, any person carrying on or managing a children’s home being required to apply for registration and any other placement not requiring registration because it is not a children’s home. Within this context, Ofsted contend that there is no such category of placements that “cannot” apply for registration. There is considerable force in that submission. However, in so far as a provider determines not to apply for registration because it could, for example, never meet the requirements to successfully apply, the court will be left in a similar position to that it finds itself in in respect of providers that will not apply. Once again, the child would be left outside the statutory regulatory regime for the duration of the placement as an application to Ofsted would never be made. Once again, this is not likely to be in the subject child’s best interests for the reasons set out above. If there are no steps being taken to regularise the position by applying for registration contrary to the Practice Guidance, the placement cannot be brought back at any point within the regulatory regime that Parliament has determined is required to meet the child’s needs. The inherent jurisdiction should not be used in circumstances which lead to the perpetuation of such an outcome. Again, the court may be required to make a very short order (measured in days and not weeks) to hold the ring whilst alternative arrangements are put in place, particularly where a placement is required immediately in order to meet the operational duties under Art 2 of Art 3 of the ECHR by keeping the child safe.
Providers who are in the process of an application obviously fall into a different category. The Practice Guidance makes clear that it accommodates the process of seeking registration and the possibility that registration may be refused or the application withdrawn. But where there is a continued failure to prosecute an application for registration despite a stated intent to do so, once again the court may find itself in a position where it cannot extend the authorisation depriving the child of his or her liberty in circumstances where the placement continues to be outside the regulatory regime. That the Practice Guidance sets out timescales in respect of the application for registration (which timescales I shall return to in more detail below) indicates that the effort to secure registration, and thus an order authorising under the inherent jurisdiction the deprivation of the child’s liberty in an unregistered placement, cannot be open ended. The requirement to make an application for registration and the timescale for doing so serves to ensure that deployment of the inherent jurisdiction in association with unregistered placements departs from the statutory scheme’s requirement of a registration to the minimal extent necessary. Within this context, the greater the delay beyond the timescales set by the Practice Guidance the greater the risk that the statutory scheme ensuring the welfare of vulnerable child is undermined.

So it may be that where the home where the child is to be placed (or has been placed) is making an application to be approved by Ofsted under the President”s guidance, the Court might say that this is NOT a placement which WILL NOT OR CANNOT be approved under the Regulations, and thus the inherent jurisdiction MIGHT be used. But where the application has not been made in good time, or been refused, the inherent jurisdiction isn’t going to work.

Basically, we’re not eating the ship’s cat unless the cat itself asks the RSPCA whether it would be okay, but there’s no rations or rescue boat coming.

In practice what this means is that the supply increase that the High Court had jury-rigged as a solution to an out-of-control crisis in bed supply has been almost completely shut down, so now the bed supply which was already nowhere near enough has just got a whole lot smaller. Luckily for everyone, solving supply chain shortages is the number one success story of this Parliament, so no need to worry..

High octane conflict and Gordian knots

This is a judgment from care proceedings, but it may also be of interest to Court of Protection practitioners. It does not reach binding precedent, or even guidance, but it does set out how in a particular case a different approach paid dividends.

W (A Child), Re [2021] EWHC 2844 (Fam) (25 October 2021)

The Judge is Mr Justice Hayden, who is always worth reading.

It relates to a child who was very ill

W has serious disabilities arising from a genetic defect. He requires the use of a wheelchair at all times. He has several diagnoses which include epilepsy and a condition known as Aerophagia, a swallowing disorder. W has been known to self-harm and occasionally to hold his breath to the point where he loses consciousness. This raft of disabilities necessitates W having one to one care at all times during the day and two to one care for moving and handling. P’s breath holding sometimes causes hypoxic episodes. He also has a Mic-key button device (gastrostomy feeding tube) to his abdomen.

And over a period of time there had been conflict between the parents and the medical professionals over W’s treatment.

  1. A private care group were responsible for delivering professional care to W. However, they encountered a great deal of resistance and what they perceived to be combative interference with their staff, by W’s parents. In particular, it was said of them:
  2. On 4th March 2021, the agency indicated that they would no longer be prepared to offer a service to W, due to the magnitude of these identified difficulties. This decision was triggered by an incident the day before when W had experienced a hypoxic episode. W’s parents are said to have refused to allow the care staff on duty to call for an ambulance immediately which had the consequence of placing him at risk as his saturation levels fell below the key threshold. W’s mother, M considered the readings normal for W. When the ambulance service attended, they found W to be well. There was a planned admission for W to Alder Hey Children’s Hospital to investigate the hypoxic episodes. The parents were said to have been distrustful of the care staff who felt “undermined and belittled”. The parents’ behaviour at Alder Hey was also said to be “highly concerning” although they were described as “appropriate and respectful on the ward”.
  3. The parents were, in my assessment, genuinely shocked when the care agency withdrew. They considered that they had an excellent working relationship. M acknowledged that she had been very emotive, but she emphasised her concern and passion. She also recognised that she was a prolific emailer. When W was born, he was given a limited life expectancy which he has already vastly exceeded. M believes that her advocacy of W’s interests and rights has played a large part in W thriving to the extent he has. I have no doubt that, at least to a very significant extent, she is correct.
  4. It is a sad fact that the Family Court, from time to time, encounters parents of profoundly sick children or children with disabilities who become drawn into high octane conflict with the raft of professionals who seek to support their child’s care. Many judges, over the years, have speculated why this scenario arises with such regularity. Sometimes, it may be a displacement of loss and accompanying anger which lands upon the medical and other professionals in the absence of any other target. Often, it may reflect a parent’s sense of powerlessness

In this case, an expert Dr Hellin, a psychologist who is about to get extremely busy, was instructed to assist the Court.

  1. Dr Hellin was clear that the court would not be best assisted by evaluating the issues in terms of the parent’s perceived failures or any mental health difficulties. It requires a recognition by the professionals that these are ordinary parents dealing with extraordinary circumstances. Dr Hellin considered that the entire aetiology of these challenging circumstances is better understood within “a different paradigm” and should be considered from “a systemic or organisational perspective”.
  2. Ms Cavanagh QC and Ms O’Neil, on behalf of F, submit that this assessment has unlocked this case. It is rare for one assessment to change the landscape so comprehensively, but I entirely agree with their submission. Dr Hellin’s conclusions have been conveniently summarised thus:

“There are certain features of the system around [W] which make it more, rather than less, likely that problems will arise in it. First, it is a very complicated system.
Second, the stakes are very high. Ultimately, this is about keeping a child alive and ensuring his best possible quality of life.
Third, commissioners face what many would consider to be impossible decisions about resource allocation.
Fourth, care work is intrinsically stressful, and the pressures on health professionals and care staff have been vastly increased by the Covid-19 pandemic.
These factors all affect the emotional climate of the system around [W] and the relationships between those components of the system.
The system around [W] has become sensitised and inflamed. Feelings have run high and perspectives have become polarised and entrenched.
[M] and [F], individual professional staff and their organisations have become stuck in polarised beliefs about each other.
It has become difficult for the parents and for professionals to respond moderately in ways that sooth rather than exacerbate the dynamic tensions between the different parts of the system.
I hope it will be apparent that this analysis does not apportion blame.
The family, commissioners and health and social care providers are all affected by the dynamic context in which they are trying to do their best.
Rather than looking to change the parents, I recommend a systemic intervention drawn from organisational psychology, psychodynamic psychotherapy, group analysis and systems theory.
The intervention would assist all agencies and the parents to understand the dynamic processes that have led to the current difficulties, to step back from mutual blame and recrimination, to establish working practices which will contain and diminish sensitivities and optimise collaboration between the different parts of the system. (my emphasis)
I recommend that an organisational or a systemic supervisor/consultant is employed to work with the system and facilitate systemic meetings within which the aims set out in the paragraph above would be addressed.
The involvement of the Court has radically shifted the dynamics of this system.
The involvement of their legal representatives and of the Court, a neutral authority, has diluted the emotional intensity of the polarised “them and us” dynamic which previously existed between the parents and the health/care providers.”

  1. Already it is clear to me, before any work is undertaken, that this exposition of the dynamic has helped both the care workers and the parents better to understand the challenges that each face. The Court is all too acutely aware of the colossal pressure placed on limited resources. This is a day to day reality for the medical and caring professions. It has endured for many years but has been cast into stark relief by the pandemic. Dr Hellin considers this backdrop serves further to inflame the environment around W. Perspectives had become polarised and difficult to placate. Dr Hellin’s proposals are predicated on promoting mutual understanding and diminishing mutual blame. At risk of repetition, I emphasise that even though work has not yet started, the manifest sense of the approach is compelling and has already diluted the emotional intensity and significantly bridged the polarity that has impeded progress in this case for many months and which has undoubtedly been inimical to W’s care.

As I said at the outset, this case doesn’t purport to tell other Courts that this is the approach to be adopted or that a one-size-fits-all approach would be right – it is dealing with the particular circumstances of this individual case, but it is certainly an approach that is interesting and may be worth people thinking about.

  1. It is important to emphasise that the provision “not being what it would be reasonable to expect a parent to give” is not to be regarded as an abstract or hypothetical test but must be evaluated by reference to the circumstances the parent is confronting i.e. what would it be reasonable to expect of a parent in these particular circumstances, recognising that in a challenging situation many of us may behave in a way which might not objectively be viewed as reasonable. The test is not to be construed in a vacuum nor applied judgementally by reference to some gold standard of parenting which few (if any) could achieve. On the contrary, it contemplates a range of behaviour, incorporating inevitable human frailty. The reasonableness of the care given requires to be evaluated strictly by reference to the particular circumstances and the individual child.
  2. I would add that a similar dynamic and frequently for the same reasons identified here, arises in the Court of Protection when dealing with incapacitated adults. This is a particularly common situation in the context of young adults in their late teenage years and early twenties, but by no means confined to it.