Author Archives: suesspiciousminds

Overseas assessment and delay

Posted on March 12, 2025 by suesspiciousminds

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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Posted in adoption and tagged adoption, assessment of carers overseas, Court of Appeal, delay. Bookmark the permalink.

Private law costs order

Posted on March 4, 2025 by suesspiciousminds

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

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

Re E : Children: Costs 2025 EWCA Civ 183

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

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

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

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

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

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

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

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

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

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

Analysis and conclusion

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

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

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

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

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

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

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

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

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

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

To that extent, I would allow the appeal.

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Posted in Uncategorized and tagged costs, costs order as a result of untrue allegations, Court of Appeal, private law, re e children costs 2025. Bookmark the permalink.

Should Judges be anonymous? The Sharif Court of Appeal decision

Posted on January 24, 2025 by suesspiciousminds

As people will know, Sara Sharif was brutally murdered by her father and stepmother in August 2023 and they were recently convicted of that offence. As part of the factual background of the case, it emerged that Sara together with her siblings had been the subject of Family Court proceedings and that decisions had been made in those proceedings which, had they potentially gone a different way, Sara would not have been in the family setting she was in before her murder.

Journalists understandably wanted to report on this aspect of the case and applications were made for them to be able to report on the Family Court proceedings. A decision was taken about what could be reported and what could not, and one of the issues that was restricted was identification of the Judges who had taken decisions about Sara and her siblings.

The case went before Williams J https://www.bailii.org/ew/cases/EWHC/Fam/2024/3330.html who upheld the decision that the identity of the Judges should not be disclosed.

I accept that there is now considerable force – indeed compelling weight – behind the submissions as Mr Barnes puts it extracted below. That is not to say that all that he submits is correct or that I necessarily agree with it, but the questions posed are legitimate ones which justify exploration by the press.

(a) The criminal trial has served to crystallise an overwhelming public interest in understanding: (i) how Sara came to be placed in the care of her father, (ii) the effectiveness of the safeguarding undertaken by the Family Court, local authority, and CAFCASS, and (iii) the local authority’s understanding of the risk posed by the father from its lengthy involvement with the family1 in light of the referral made by Sara’s school on 10th March 2023 in relation to which the local authority made a decision to take no further action by 16th March 2023; b. The “unbroken chain of causation” back to the family proceedings in 2013, 2015/6, and 2019 is now very clearly established.(c) c. The school referral in March 2023 was referred to within the criminal trial and reported, as was the fact of an order being made by the Guildford Family Court in 2019…..
From the point of view of a judge who has practised in family law for 35 years and sat as a judge for 9 years including 4 years as the Family Presiding Judge for the South Eastern Circuit (which includes Surrey) my perspective on the investigations which took place, the assessments which emerged, the recommendations which were made and the decisions which were taken by the family court in 2013, 2015 and 2019 appear to be well within the boundaries of what one would typically encounter in a case of this nature.

However, it is perhaps precisely that perspective and the subsequent shocking murder of Sara which illustrates why there is a compelling public interest in the media being able to undertake their own consideration of the material and to question or test how we approached the issues and to ask the legitimate question of whether there were things that the system could have done differently or better. Nothing can bring Sara back, nothing can undo the harm that must inevitably have been done to her siblings from their exposure to what appears to have been sadistic long-term torture of her. The sentencing judge described it in all its appalling detail. There will be other processes which will examine the responses of the system but those other avenues do not in any way undermine the compelling public interest in the media being able to discuss the history of Sara’s involvement with the child protection system including the courts from the moment of her birth until her tragic death. If that discussion highlights shortcomings in what was done and whether Sara might have been better protected then those are issues which those of us in the family justice system will have to listen to and consider, those in children’s services will and those who have control of the resources made available to the Family Justice System and to child protection services and safeguarding generally will need to reflect upon and consider whether we can and should do anything differently and whether more resources in terms of child safeguarding and protection or within the Family Justice System are required to minimise the risk of this happening again. On the other hand, that exploration and discussion by the media may only reveal that parents who are sufficiently determined and manipulative can thwart the system.

In part of that judgment, Williams J was somewhat critical about the proposition that the Court should proceed on the basis that any reporting would be responsible, fair and accurate :-

The media submit that authority supports the proposition that the Court must proceed on the footing that any reporting of the proceedings will be responsible, fair and accurate (R v Sarker [2018] 1 WLR 6023at [32(iii)(b)]). That may be a useful starting point, but experience regrettably shows that some reporting is better than others and that it is not a reliable end point. It is also the case that once the media applicants have published the information it is available to anyone to do with it as they wish and in an age of disinformation and anti-fact the court must have an eye to what onward use may be made of the information. As the reporting of the murders of Alice da Silva Aguiar, Bebe King and Elsie Dot Stancombe demonstrates all too clearly, those with malign intent can rapidly distort information to meet their own purposes with devastating real-world consequences. As I said in the course of the hearing the reality is that there will be a spectrum of reporting – even within the represented media parties. Many will indeed report matters responsibly, fairly and accurately. Some will not. Contrast the extract of a judgment and a headline in a well-known national daily newspaper reporting it.

Extract
What this case is not about though is whether an Islamic marriage ceremony (a Nikah) should be treated as creating a valid marriage in English law.
Headline
A British court has recognised sharia law for the first time in a landmark decision as a judge ruled that a wife can claim her husband’s assets in the split. The High Court ruling on Wednesday said their union should be valid and recognised because their vows had similar expectations of a British marriage contract.
On Friday 13th December 2024 I responded to an application for permission to appeal made on behalf of Ms Tickle and Ms Summers and adjourned the application pending this judgment giving reasons for doing so. On Saturday 14th December at 19.18 GMT the Guardian carried a story written by Ms Tickle and Ms Summers reporting that I had refused permission to appeal. Accurate – no; fair – no; responsible – I would venture to suggest not. I could make several observations about how fairly, responsibly and accurately the Dispatches programme broadcast on 20th July 2021 depicted a number of decisions of the family courts. Thank goodness that journalists don’t have to operate as the courts do and hear both sides before delivering their verdict! Is reporting which only presents one side of the story fair, responsible and accurate? By any ordinary meaning of those words, I would suggest not. What it is very close to is advocacy or campaigning and that is one aspect of reporting but so is sensationalism as well as good investigative reporting. To apply some broad presumption which equates the sort of reporting undertaken by Nick Wallis to that of Andy Coulson is simply wrong. The Leveson Inquiry and the imprisonment of members of the press for egregious infringements of the Article 8 rights of hundreds of individuals makes abundantly clear that some elements of the media do not always adhere to high standards. So with respect it seems to me that to create an assumption that the press reporting will be fair, accurate and responsible is to create the equivalent of the Emperor’s New Clothes narrative which everyone knows is false, but no one dare state. Many of the media no doubt will adhere to that standard but regrettably experience of the real world as opposed to some utopian ideal teaches us that some will not – including amongst the mainstream media. Authorising disclosure to the press of extensive material about sensitive shielded justice proceedings and permitting reporting on it does not mean they will all report it fairly, accurately, and responsibly and the more extensive the disclosure and publication authorised the more the court is entitled to balance that with minimising the risks of disproportionate infringements of Article 8 rights of those concerned.

My conclusion on the naming of third parties and judiciary is therefore that there is no presumption that they should be named in shielded justice cases. For the judiciary I would accept that there is an assumption in shielded justice cases of naming because s.12 Administration of Justice Act 1960 contemplates that their name will be open notwithstanding the presence of the broader shield. In relation to other third parties – social workers and other child protection professionals – I would be inclined to a starting point that shielded justice preserves anonymity for them. For experts, jurisprudence and the Reporting Pilot provide a starting point of identification.

But these starting points must always be subject to a case specific evaluation which will involve consideration of elements relating to the case itself, the individuals and what it is legitimate to infer from the accumulation of knowledge we have about risks arising in the same way we may infer risk to children arising from publication and risks to health professionals in contentious medical treatment cases like Charlie Gard and Zainab Abassi.

I don’t think it will surprise anyone to know that the Press disagreed with that categorisation and that the Williams J decision was appealed.

Here’s the link to the appeal judgment

https://www.bailii.org/ew/cases/EWCA/Civ/2025/42.html

Tickle & Anor v The BBC & Ors [2025] EWCA Civ 42 (24 January 2025)

(For what my own personal opinion is worth – very little – but I’ll set it out, I do think that if the Courts are going to name social workers and Local Authorities and paediatricians, then in circumstances where there is legitimate media interest in decisions made by Judges then they too should be named. I slightly share Williams J concerns that the information might not be used to provide a balanced and reasonable account – we do after all live in an era when a national newspaper runs a headline of “Enemies of the people” to describe a Supreme Court ruling that they disagreed with… but I also think that the Streisand Effect is real and the more one tries to keep the Press away from something the more tenacious they’re likely to be. A tough case but on balance I would have published the names)

Anyway, here are the grounds for the appeal

The journalists’ grounds of appeal (upon which the Media Parties also rely) take four main points:

i) It was a serious procedural irregularity for the judge not to have given reasons before anonymising the historic judges.

ii) The judge adopted an unfair, biased and inappropriate approach to the journalists and the media generally (including relying on his own erroneous analysis of alleged media irresponsibility), thereby unacceptably encroaching on their rights under article 10 of the European Convention on Human Rights (ECHR). This ground was added by amendment and permission has not yet been granted to allow it to be pursued.

iii) The judge ought to have held that the demands of open justice meant that anonymity for a judge could not be justified within the framework of balancing article 8 and article 10 of the ECHR.

iv) The part of the Order anonymising the historic judges could not be justified in the absence of any specific application or evidential foundation, and was inimical to the proper administration of justice.

The Judges in question were approached for their views:-

On 20 December 2024, King LJ directed that the historic judges be contacted to obtain their views (if they wished to express any). On 9 January 2025, leading and junior counsel for the historic judges filed a note indicating that: (a) none of them had sought anonymity, (b) each of them now had serious concerns about the risks which would arise if they were now identified, particularly in the prevailing circumstances, including the content and often inflammatory nature of public and media commentary arising from the intense scrutiny which has followed from the December judgment, (c) those concerns related not only to their own personal wellbeing but also to their family members and others close to them, whose interests the court might also want to take into account, (d) two of the historic judges (Judges 1 and 2, who were now retired and made only an emergency protection order and an interim care order respectively) considered that it would be right for their identities to remain protected, (e) Judge 3 was a sitting judge who was not, therefore, able to adduce evidence and did not feel it appropriate to express a position on whether their identity should remain protected, and (f) the historic judges considered that a risk assessment should be undertaken before any decision was made and that, if the anonymity part of the Order were to be varied, further assessments should be made of what (if any) protective measures should be taken before that decision was implemented, and (g) the Head of Security at HMCTS’s Chief Financial Officer’s Directorate had said that the Judges: “do not have secure digital footprints and the ease at which the residential address details of the judges can be accessed by anybody utilising the internet, creates very significant security/safety vulnerabilities. If there is a campaign, including potential ‘hate’ messages targeting [the historic judges], their personal safety and the personal safety of their family could be very severely affected”.

(I think that this is powerful – as we know, there is a very polarised media and once things appear in the media they also have a life of their own on social media and that can become very ugly very quickly. One can easily forsee some people reading an assertive headline and taking it upon themselves to harass the Judges. We can’t forget that the people to blame for Sara’s murder are the people who were convicted of it. And also, that Judges understandably are currently very mindful of an extremely serious assault that took place on a Judge in Milton Keynes, despite that being in a Court building with security)

The first question the Court of Appeal addressed was whether there was jurisdiction to prohibit the identification of the Judges.

Issue 1: Was there jurisdiction to prohibit the publication of the names of judges?

The critical jurisdictional question is the one that, it seems to me, the judge ought to have asked himself when it came into his head to order anonymity for the historic judges at the end of the hearing on 9 December 2024. At that point, no party had suggested that such anonymity was necessary. Moreover, no evidence of any kind had been filed supporting the making of such an order. The position at that date was, notionally at least, that the names of the historic judges had been in the public domain since the hearings over which they presided years before. It is true that the cases before them would have been heard in private and covered by section 12 of the AJA 1960 and section 97, and would, in all likelihood have been listed as something like “Re S (children)”. But the historic judges’ names appeared on each of the orders that they made. Orders are public documents. Further, the fact that these judges were sitting on the days in question at the courts in question was public knowledge as it should have been. In these circumstances, once the matter occurred to the judge, he ought, in my view, to have asked himself on what legal basis he could order the anonymity of the historic judges.

Neither the Local Authority nor the Guardian had submitted to the judge at any stage that the protection of the children required that the historic judges be granted anonymity. That remains the position. Accordingly, the parens patriae inherent jurisdiction of the court to protect the children was not engaged. Whilst there was no application for an injunction under section 37, the court would, in theory, have had power to grant an injunction to restrain the publication of the historic judges’ names (see the wide scope of that section as explained by the Judicial Committee of the Privy Council in Convoy Collateral Ltd v. Broad Idea International Ltd [2021] UKPC 24, [2023] AC 389 at [57], and by the UKSC in Wolverhampton City Council v. London Gypsies and Travellers [2023] UKSC 47, [2024] AC 983 at [145]-[153]). It would have been very unusual for the court to grant such an injunction of its own motion without any application being made or intimated by the historic judges or anyone else. In any event, it has not really been suggested by anyone that section 37 (without section 6) gave the judge the jurisdiction to order anonymity. For the avoidance of doubt, no cause of action, whether in misuse of private information, breach of confidence or anything else was being asserted before the judge.

It seems to me, therefore, that the only realistic jurisdictional foundation for the judge’s decision was section 6 of the HRA 1998, perhaps taken alongside section 37. Section 6 provides, as I have said, that it is “unlawful for a public authority to act in a way which is incompatible with” an ECHR right. Accordingly, if the judge had, on the 9 December 2024, reason to believe that the historic judges’ article 2 or 3 rights would or might be engaged by allowing the press to publicise their names, he would have had to refrain from doing that, and if he had had reason to suppose that their article 8 rights would be engaged, he would have had to undertake the balancing exercise envisaged in Re S.

It is clear, in my judgment, that articles 2, 3 and 8 apply as much to judges as to any other person. It is less clear, however, that judges, even in cases like this, need to consider, of their own motion, when asked to relax reporting restrictions, whether to anonymise the names of the judges who have heard the cases in question. I have considered very carefully the submissions of the advocate to the court to the effect that the rare and extreme factual background to this case might itself mean that the article 8 threshold for the judges had been reached. I have looked carefully at the judge’s later reasoning that explains why he thought that social media and reporting risks to judges have, in the modern world, became sufficiently alarming and serious to reach the threshold.

I have, however, concluded that the judge was wrong. He had no jurisdictional foundation for making the anonymity order he did. Section 6 did not require him to trawl through his own experience to see if there were risks that he could imagine facing the historic judges. If, notwithstanding the lack of evidence to that effect, the judge was concerned about their being named, there were other, more appropriate, ways to protect them. He could have contacted HMCTS to warn them of the Order that he was making and the risks that he foresaw. HMCTS would, in that event, as has happened now, have considered how the judges could be protected.

I should interpose that nothing I say here should be interpreted as minimising the risks that judges in the position of the historic judges face. I have taken very seriously what the historic judges and HMCTS have said. But none of that material, which substantially relates to the potential impact on the judges of the publicity generated following the making of the Order, was before the judge. He had no evidential basis on which to think that the threshold for the application of articles 2, 3 or 8 had been reached.

It is the role of the judge to sit in public and, even if sitting in private, to be identified, as explained in Scott v. Scott, Felixstowe and Marsden. Judges will sit on many types of case in which feelings run high, and where there may be risks to their personal safety. I have in mind cases involving national security, criminal gangs and terrorism. It is up to the authorities with responsibility for the courts to put appropriate measures in place to meet these risks, depending on the situation presented by any particular case. The first port of call is not, and cannot properly be, the anonymisation of the judge’s name. That must be particularly so, where those names are already notionally in the public domain. Moreover, it is no answer as was suggested, to say that there is only a limited interference with open justice, because the historic judges’ names add little to the story. For all the reasons given in the cases I have cited, it is not for judges to decide what the press should report or how journalists should do their jobs.

The authorities that I have cited demonstrate that judges are in a special position as regards open justice. The integrity of the justice system depends on the judge sitting in public and being named, even if they sit in private. The justice system cannot otherwise be fully transparent and open to appropriate scrutiny.

For the avoidance of doubt, I am not saying that judges are obliged to tolerate any form of abuse or threats (see [54] above). Nor am I saying that it would never be possible for section 6 of the HRA to allow, or even require, a court to consider, even conceivably of its own motion, making an anonymisation order relating to judges. In my judgment, however, it is very hard to imagine how such a situation could occur. That is for three reasons. First it is difficult to see that such an order could be justified without specific compelling evidence being available as to the risks to the judges in question. Secondly, the court would have to be satisfied that those risks could not be adequately addressed by other security measures. Thirdly, the court would have to conclude that the risks were so grave that, exceptionally, they provided a justification for overriding the fundamental principle of open justice.

The first reason is sufficient to dispose of the anonymisation of the historic judges in the Order in this case. There was no evidence before the judge on 9 December 2024 that the judges had been physically threatened, and none supporting the proposition that their article 8 rights were in jeopardy. The judge had no evidence about the historic judges’ private or family life, and did not need to speculate as to the generic risks that family judges might face in the modern age of social media. I agree with what Nicklin J said in the IPSA case (see [47] above) about the threshold that needs to be reached and the need for resilience. I acknowledge that the case of Spadijer recognises the changes that have occurred in our societies and the increased sensitivity of our era, but I do not think that affects the need for judges to operate in the open.

In these circumstances, I take the clear view that the judge had no basis, in the absence of specific evidence affecting the historic judges, on 9 December 2024, to think that articles 2, 3 or 8 were or might be engaged. He, therefore, had no need to undertake any balancing exercise between article 8 and article 10. The historic judges’ identities were in the public domain and ought to have remained in the public domain.

We do not know whether the judge ever became aware of the fact that abusive threats against the historic judges have, since the verdicts against the father and step-mother, most regrettably appeared on the internet in social media posts. The father’s counsel obtained a sample of these threats and sought to admit them in evidence on the appeals. We looked at them de bene esse (for what they were worth). I would admit them in evidence, since they were not available before the hearing on 9 December 2024, and it was useful for the court to know about them in its deliberations. To my mind, however, these threats do not alter the position. They are not threats from parties affected by the orders that the historic judges made. They are generic threats of the kind that are, unfortunately, all too commonly now made against politicians and public figures of all kinds. It is one thing for an internet troll to post a message saying that “politician X should be strung up”, and quite another for a party to litigation to threaten the judge directly. Likewise, the generic fears of the historic judges and the recently expressed concerns of HMCTS do not, in my judgment, alter the position. There are, as I have said, other ways of protecting the historic judges.

In the circumstances of this case, the judge had no jurisdiction to anonymise the historic judges either on 9 December 2024 or thereafter. He was wrong to do so, and the Order must be varied accordingly. I will return to the process by which that is to be achieved in the final section of this judgment.

To be honest, having succeeded on that point the appeal is inevitably going to succeed, but we’ll keep going.

Issue 3: Was there inappropriate bias against or unfairness towards the media?

I have set out some of the colourful language used by the judge at [27] and [30]-[33]. It is said that the judge demonstrated unfairness and bias against the media in general and the journalists in particular. This ground is also academic now that I have decided that the judge had no jurisdiction to do as he did.

I do, however, think that the threshold for permission to appeal on this ground is met, and I would accordingly give that permission on the basis that the ground had a real prospect of success. It was, I think, unfair of the judge to say, with such vehemence, at [60] that the journalists had been guilty of inaccurate, unfair and irresponsible reporting. The decision to adjourn the journalists’ application for permission to appeal just before the end of term was akin to dismissing the application. The distinction was, in the circumstances, a technical one. The decision to adjourn necessitated the application to me for permission to appeal, which I granted on 19 December 2024. At the time that the judge adjourned the application for permission to appeal on 13 December 2024, the parties thought, as the judge had told them, that his reasons would not be available until the New Year. It was excessive in the circumstances to accuse the journalists of irresponsible reporting even if the application for permission had been technically adjourned rather than dismissed. His sarcastic remark at [60] about the Channel 4’s Dispatches programme of 20 July 2021 was unwarranted. He said, for no reason that I could discern: “[t]hank goodness that journalists don’t have to operate as the courts do and hear both sides before delivering their verdict!”. Such sarcasm has no proper place in a court judgment.

There are other examples in the judgment of the judge taking an excessively strong line about the quality of reporting in other cases. It was inappropriate for him to have prayed in aid other cases within his experience (as, for example at [59]) to support the position he had adopted without any of the parties asking him to do so.

I do not intend to proliferate my remarks. The mistake the judge made was to think that he could properly trawl through his own experiences to create a case for anonymising the judges. He should not have done so. Courts operate on the basis of the law and the evidence, not on the basis of judicial speculation and anecdote, even if it is legitimate to take judicial notice of some matters. In short, the judge’s judgment demonstrates, to put the matter moderately, that he got carried away.

It is not necessary to decide whether the judge’s inappropriate and unfair remarks about the press and the journalists amounted to actual or apparent bias. He undoubtedly behaved unfairly towards the journalists and Channel 4 – and that is enough to allow the appeals. The judge lost sight of the importance of press scrutiny to the integrity of the justice system. The case should be remitted for further hearings to a different Family Division judge.

The Court of Appeal determined that the names of the Judges would be provided to the Press but that they would be given 7 days so that His Majesty’s Court Service could have time to prepare any necessary additional security measures

For the reasons I have given, I would allow the appeals primarily on the jurisdiction ground, but also on the grounds of the judge’s failure to seek submissions or evidence before giving his decision, and his unfair treatment of the journalists and Channel 4. I would, as I have said, give all the media parties permission to raise the additional ground of appeal. I would deprecate the judge’s use of anecdotal material and his own experiences to create a case for anonymising the judges.

The historic judges have asked for time to prepare themselves if their names are to be revealed. Since that is the result of allowing the appeal, I would order that they be given 7 days from the date of this judgment before their names are published, to allow HMCTS to put measures in place to protect them from any potential harm once their names are released.

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Posted in Uncategorized and tagged anonymisation and transparency, Anonymisation of Judge's names, article 10, Court of Appeal, Sara Sharif, tickle and anor v the BBC and Others 2025, Williams J. Bookmark the permalink.

A child in need is a child indeed (or not)

Posted on January 23, 2025 by suesspiciousminds

This one took me quite a few reads to make sense of (and it is quite possible that I’m still not there)

I THINK that it is largely fact-specific, but the Court of Appeal do look at whether the wording of ‘unlikely’ in s17(10) Children Act 1989

“For the purposes of this Part a child shall be taken to be in need if—
(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
(c) he is disabled

should be looked at in the same sort of context as ‘likelihood’ is treated by the Courts in s31 threshold (i.e a risk that cannot sensibly be ignored)

https://www.bailii.org/ew/cases/EWCA/Civ/2025/4.html

TW, R (On the Application Of) v Essex County Council [2025] EWCA Civ 4 (20 January 2025)

Basically, TW had been a 16 year old child living with his stepfather and that placement broke down. He approached the Local Authority for assistance and they helped him liaise with Housing and get accommodation. He later judicially reviewed the Local Authority for not treating him as a s17 Children Act ‘child in need’ at the time that his placement with stepfather broke down, which would have meant that the accommodation provided was under s20 of the Children Act 1989 in turn making him ‘looked after’ and in turn providing him with support under the Leaving Care provisions.

The Local Authority said that they had carried out an assessment at the time as to whether TW was a ‘child in need’ and made a lawful determination that he was not and that they had followed the statutory guidance.

I think that this paragraph is significant :-

On 10 June 2021, TW attended a meeting with SM and a member of the borough council housing department. They discussed his “potential housing options”, including support with accommodation through s.20 and under the EYPP. According to the note of the meeting, SM advised him in detail about the options, although in his statement in these proceedings TW said that he did not recall being given the detailed information recorded in the note. The note concluded by recording that TW said that he “does not want be in care as there were too many rules”. He said he wanted to be supported to access housing through EYPP.

In general, where a person aged between 16 and 18 seeks accommodation, the LA would consider whether they are a child in need and if satisfied that they are, would provide that accommodation under s20 rather than signposting them to Housing BUT where the young person is given information and decides that they do not WANT to be looked after then they would not be s20 accommodated against their wishes.

The national guidance says this :-

53….”Where there is no immediate threat of homelessness intervention may be more appropriately led by early help services, whereas if there is an imminent threat of homelessness or if the young person is actually homeless, a child in need assessment must be carried out and the child accommodated under section 20.”

It was Mr Moffett’s submission that the statutory guidance was encouraging local authorities to do what the local authority did in this case. He submitted that the logic of the appellant’s argument was that the statutory guidance was unlawful, but the issue of legality was not before the Court. Mr Purchase conceded that early intervention to prevent a child becoming a child in need was entirely legitimate, but submitted that the guidance was misleading if it meant that early intervention did not amount to the provision of services under s.17(10) in circumstances where it was established that, without those services, there was a real possibility that the child would suffer significant impairment to his health or development. If on the facts a child’s circumstances fall under s.17(10), any services provided to him by the local authority were provided to him as a child in need.

Mr Moffett observed that, in one sense, every child is a child in need of support from someone. The definition of child in need under s.17(10), however, is confined to those children who are unlikely to achieve or maintain a reasonable standard of health or development without the provision of services under Part III of the Act: R (P) v Secretary of State for the Home Dept, R (Q) v Secretary of State for the Home Dept [2001] EWCA Civ 1151 at paragraph 95. In carrying out the assessment, the local authority is obliged to take into account support otherwise available: R (VC) v Newcastle City Council, supra, per Munby LJ at paragraph 30. Mr Moffett submitted that, in carrying out that exercise, there was no conceptual reason to exclude support which might be provided by other agencies or by the local authority under other provisions.

In effect, as the homelessness was foreseeable but not imminent (he was ‘sofa surfing’ with friends – staying for short periods of time at the homes of others) the LA were providing services by way of Early Help to prevent a situation where TW would actually become homeless, and he was not on their assessment a child in need.

The Court of Appeal looked at the authorities on determining whether a child is a ‘child in need’

The clearest statement of the law relating to the assessment of whether a child is a child in need is by Baroness Hale in R (A) v Croydon LBC, supra. The issue in that case was whether each of the claimants, who had sought asylum on arrival in this country, was under the age of 18 and therefore capable of being a child in need under s.17(10) and therefore entitled to be accommodated under s.20(1). At paragraphs 26 and 27, Baroness Hale drew a distinction between the assessment of, on the one hand, whether a child was a child in need and, on the other hand, whether the person was a child at all.

“26. The 1989 Act draws a clear and sensible distinction between different kinds of question. The question whether a child is “in need” requires a number of different value judgments. What would be a reasonable standard of health or development for this particular child? How likely is he to achieve it? What services might bring that standard up to a reasonable level? What amounts to a significant impairment of health or development? How likely is that? What services might avoid it? Questions like this are sometimes decided by the courts in the course of care or other proceedings under the Act. Courts are quite used to deciding them upon the evidence for the purpose of deciding what order, if any, to make. But where the issue is not, what order should the court make, but what service should the local authority provide, it is entirely reasonable to assume that Parliament intended such evaluative questions to be determined by the public authority, subject to the control of the courts on the ordinary principles of judicial review. Within the limits of fair process and “Wednesbury reasonableness” there are no clear cut right or wrong answers.

But the question whether a person is a “child” is a different kind of question. There is a right or a wrong answer. It may be difficult to determine what that answer is. The decision-makers may have to do their best on the basis of less than perfect or conclusive evidence. But that is true of many questions of fact which regularly come before the courts. That does not prevent them from being questions for the courts rather than for other kinds of decision-makers.”
The principle that the evaluation of whether a child is a child in need is a matter for professional judgment by the local authority is reflected in the National Guidance. Paragraph 3.16 provides:

“Determining who is in need and the extent of any needs requires professional judgment by social workers, informed by consultation with other professionals familiar with the circumstances of the individual young person and their family.”

The Court of Appeal decided that TW’s situation ‘might’ have led a Local Authority to conclude that he was a child in need but looking at their decision-making and the initial judgment about that, they considered that the decision of the LA and the Judge that TW was not a child in need was reasonable and not irrational.

I accept that the language of s.17(10) is “forward-looking”. The assessment of what is likely or unlikely necessarily involves looking to the future. But SM’s assessment was manifestly focused in that direction. The key findings cited above are for the most part all forward-looking. Her finding about TW’s current sleeping arrangement was that “whilst this is ok in the short term, it is not an ideal long term arrangement”. Her answers to the question “What will make things safer?” were all directed to future provision, as were her recommendations. Her evaluation, accepted by the decision-maker, was that TW’s future needs could be met through accessing housing via EYPP with additional support from Family Solutions without the provision of services by the local authority under Part III of the Act.

The provision of services to prevent a child becoming a child in need is expressly prescribed in the National Guidance. It was plainly open to the local authority, following the Guidance and in particular paragraph 3.2, to conclude that TW fell into the category of a young person needing early help. Although he had a range of needs and specific vulnerabilities, there was no “imminent threat of homelessness”. He needed support to “reduce the chance of a problem getting worse” and the local authority was able to coordinate early help services to meet those concerns. It was therefore entirely rational for the local authority to conclude that there was no requirement for services to be provided under Part III of the Act.

So far as Mr Purchase’s other submissions are concerned, I am doubtful whether there is anything to be gained from the proposition that the word “unlikely” in s.17(10) should be interpreted by reference to the meaning of “likelihood” applied by family courts when considering whether the threshold for intervention under s.31(2) of the Act is crossed. It would not be helpful to introduce a gloss into the clear statutory language of s.17(10) which social workers have to follow on a daily basis. In any event, there was nothing in Mr Purchase’s submission on this issue which persuaded me that the judge had fallen into error.

I do not read the judge’s observation at paragraph 71 of his judgment – that the words “unlikely” and “reasonable” in s.17(10)(a) suggest that the test “will not be lightly met” – as indicating that he was applying too high a hurdle. Furthermore, as is clear from the rest of that paragraph, he was very properly following the guidance given by Munby LJ in R (VC) v Newcastle, which in turn was based on the statement by this Court in R (P) v Secretary of State for the Home Dept, supra. As this Court said in the latter case (at paragraph 95):

“the distinguishing feature of a ‘child in need’ for this purpose is not that he has needs – all children have needs which others must supply until they are old enough to look after themselves – but that those needs will not be properly met without the provision of local authority social services.”
In my view the judge was entitled to reject the arguments that the fact that SM had discussed s.20 accommodation with TW on 10 June 2021, and described the payment of £30 to him on 25 June 2021 as “s.17 cash”, indicated that he was in reality being treated as a child in need. The fact that it was the local authority who had entered the contractual arrangement with EYPP and referred TW to that agency for accommodation did not mean it was treating him as a child in need. The support subsequently provided by the local authority was via the Family Solutions team, not under s.17. On the totality of the evidence, and in particular the very clear terms of the social work assessment and the manager’s decision, the judge was entitled to conclude that the local authority treated TW as not being a child in need.

It was plainly open to the manager to conclude on the evidence that TW’s needs would not be met without the provision of services under Part III and that he was therefore a child in need. But the appellant has fallen well short of demonstrating that that was the only rational conclusion open to the manager. In those circumstances, the judge was right to dismiss the application for judicial review.

From TW’s point of view, it is of course very unfortunate that he was not designated a child in need because he is not entitled to be treated as a “former relevant child” and receive the benefits which would flow from that status. As Baroness Hale warned in R (M) v Hammersmith and Fulham LBC, there is plainly a risk that some cash-strapped local authorities may seek to avoid their responsibilities under Part III of the Act. But there is no basis for thinking that this local authority has taken that course in this case. Its decision was reached rationally after a careful assessment and was plainly in line with national guidance.

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Posted in Uncategorized and tagged Court of Appeal, judicial review, leaving care, Re TW, s17 children act 1989, section 20 versus early help. Bookmark the permalink.

Setting aside an adoption order

Posted on January 17, 2025 by suesspiciousminds

The Court of Appeal in X and Y, Re (Children: Adoption Order: Setting Aside) [2025] EWCA Civ 2 https://www.bailii.org/ew/cases/EWCA/Civ/2025/2.html considered an appeal from an application to revoke the adoption orders made on 2 children, X and Y, who were 17 and 16 at the time of the appeal hearing.

Lieven J at first instance had declined to revoke the orders considering that the Court lacked jurisdiction to revoke adoption orders on welfare grounds.

The single question of law at the centre of this appeal is whether the court has any jurisdiction to set aside a validly made order for the adoption of a child, other than by way of an appeal. If the central question is answered in the affirmative, then subsidiary issues will arise as to the manner and basis upon which that jurisdiction should be exercised

The facts of the case were fairly straightforward – the children had been placed for adoption, that placement had broken down and by the time of the appeal, both children were living with their birth mother. In relation to Y Lieven J found that it would be in her welfare interests to revoke the order as she found the position of her biological mother not being her legal mother, and her legal mother not being someone she thought of in that way distressing. Lieven J found that it was less clear cut with X.

“I do however wish to note, that I accept, certainly in the case of Y, it would be in her best interests to revoke the order. She plainly finds the present legal fiction distressing and the fact that it reflects neither reality nor her own sense of self, deeply upsetting. This has been her position consistently for a long period. The position is less clear cut in respect of X. I do not intend to carry out a detailed analysis of her welfare interests given that I have found I have no power to revoke.

It was common ground that the Court has jurisdiction to revoke an adoption order where the making of the order itself was being appealed (i.e the Court was wrong to make the adoption order and that’s reversed on appeal)

The more tricky area is whether the Court can do so on welfare grounds – i.e Lieven J had found that it would be in Y’s best interests to revoke the order but that the Court did not have the jurisdiction to do that.

This raises interesting philosophical and political (small p) issues. On the one hand we have the principle that Court proceedings and orders ought to be for the benefit of children and that their welfare is paramount, on the other there is the statutory framework of adoption which does not contain any statutory powers or provisions for reversing such orders and the public policy of the underlying intention of adoption being that it is an order for life and permanent.

The big case that comes to mind is Webster (this was a set of proceedings in which a child was adopted following findings of non-accidental injuries and then at a later criminal trial the parents were acquitted with medical reports suggesting that the injuries were organic in nature – scurvy having occurred) and the Court of Appeal in that case found that:-

“[148] In my judgment,… the public policy considerations relating to adoption, and the authorities on the point—which are binding on this court—simply make it impossible for this court to set aside the adoption orders even if, as Mr and Mrs Webster argue, they have suffered a serious injustice.
[149] This is a case in which the court has to go back to first principles. Adoption is a statutory process. The law relating to it is very clear. The scope for the exercise of judicial discretion is severely curtailed. Once orders for adoption have been lawfully and properly made, it is only in highly exceptional and very particular circumstances that the court will permit them to be set aside.”

Thus, part of the discussion here was whether in ‘highly exceptional and very particular circumstances’ the Court could permit adoption orders to be set aside, and what such circumstances might warrant that. I.e has the Court not got jurisdiction to set adoption orders aside at all, OR they have jurisdiction but only in highly exceptional and very particular circumstances.

I was a little surprised by the outcome here (I think we all mentally felt that Webster was the line on this – that theoretically the Court could set aside adoption orders in highly exceptional cases – and there have been a tiny handful of cases where this HAS happened), but the Court of Appeal here has looked very rigorously at the jurisdiction point and found that there just is not a satisfactory mechanism.

In the absence of a statutory mechanism to set the orders aside, the Court of Appeal looked at various arguments as to jurisdiction (an appeal out of time, inherent jurisdiction, FPR rule 27.5 and even the slip rule – always nice to see the slip rule) and found that none of them actually gave the Court jurisdiction.

follows from the above that the statements about the extent and nature of the powers of the High Court, originating in Re W, continuing in Re O, and culminating in the summary in AX v BX at §80(5)-(7), are not correct and should not be followed. It further follows that the two cases in which adoption orders were set aside for welfare reasons (Re PK and AX v BX) were wrongly decided, albeit from the best of motives. As was made clear in Re B, the fact that an adoption has turned out badly and that revocation would serve the interests of the adopted person, whether a child or an adult, is not a reason for the court to supply a remedy that Parliament has chosen not to provide.

The court is of course required to act within a human rights framework and it is possible to imagine such an extreme situation arising that the revocation of an adoption order becomes necessary if the court is to comply with its Convention obligations. However, the remedy in such a case would almost certainly be an appeal out of time, and not an originating application. Further, it is highly unlikely that the Article 8 right to respect for family life or for personal identity could ever be of such weight as to justify an outcome that is at odds with the statutory scheme of adoption that has prevailed in this country for a century. Such an outcome would (per Re B at 340g) “undermine the whole basis on which adoption orders are made, namely that they are final and for life as regards the adopters, the natural parents and the child”. Any change in that state of affairs is a matter for Parliament.

Conclusions

The conclusion that we have reached on consideration of the previously decided cases, which holds firmly that there is no jurisdiction at first instance to set aside a validly made adoption order, is on all fours with the summary of the underlying policy considerations put forward by the SoS, which we accept [paragraph 36 above]. Those policy considerations are, in turn, plainly in line with the approach of Swinton Thomas LJ, Simon Brown LJ and Sir Thomas Bingham MR in Re B. These are matters of fundamental principle with respect to adoption. Adoption orders are transformative, have a peculiar finality and are intended to be irreversible, lasting throughout life, as if the child had been born to the adopter. That high degree of permanence, from which the benefits to the child of long-term security and stability should flow, is the unique feature that marks adoption out from all other orders made for children; it is, at its core, what adoption is all about. We agree with the SoS that it would gravely damage the lifelong commitment of adopters to their adoptive children if there were a possibility of the finality of the adoption order being challenged on welfare grounds.

In reaching our decision, we have been acutely aware that it will be profoundly unwelcome to each of the lay parties in this appeal. We have particularly heard what Y has said so clearly to us through the well-placed submissions of Mr Bowe. In the circumstances of this case, where she and her sister have never fully left their birth family and committed to their adoptive home, despite the consistently child-centred efforts of AM, Y and, maybe to a lesser extent, X will be profoundly upset by this outcome. If the court did have a welfare based jurisdiction then the outcome, as Lieven J indicated, would probably have been different.

We are also very conscious that this is by no means an isolated case and that there will be other, possibly many other, adoptive relationships which have broken down and for whom the ability to resort to the court to revoke the adoption order would be earnestly welcomed. But, for the reasons we have given, both the law, as passed by Parliament and as previously interpreted by this court, and the policy underlying the statutory adoption regime have inevitably led us to hold as we have done.

For the reasons that we have given, the appeal must be dismissed. Rather than holding, as all parties submitted was the case, that Lieven J’s interpretation of the extent of any inherent jurisdiction to revoke an adoption order was too narrow, we have concluded that the reality is that no such jurisdiction exists.

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Adoption Support

Posted on January 14, 2025 by suesspiciousminds

You don’t often see a case about adoption support – it is hardly ever litigated, so when one comes up, I take an interest. Adoption support is exactly what it sounds like – what financial and other assistance do adoptive parents get to assist them in the care of the child that they’re adopting.

In this case, a failure by the LA to understand their statutory obligations to assess the level of adoption support and provide a package held up the adoption application for 18 months.

A v Adopt London North & Ors [2024] EWFC 373 (20 December 2024)
http://www.bailii.org/ew/cases/EWFC/HCJ/2024/373.html

Theis J summarises the issues accordingly

The court is concerned with adoption applications made in February 2023 by the maternal aunt, A, of three children, B 16 years, C 16 years and D 14 years. Their birth mother, E, died in a car accident in 2012. Their birth father, F, has had no involvement in their lives and I determined at an earlier hearing should not be served with notice of these proceedings.

These applications have taken over 18 months to conclude as a result of the local authority’s failure to understand its statutory obligations in respect of adoption support and to properly assess the family for that support. The delay caused by this misunderstanding has been detrimental to the children’s welfare as it has prevented final decisions being made for orders which there is no dispute their lifelong welfare needs require.

The matter was listed for a final hearing on 9 December 2024 when the court was able to make the adoption orders. The reasons for those orders being made are set out below.

I have dealt with these proceedings since the start. It is hoped this judgment will prevent other prospective adopters having to endure such prolonged uncertainty by delays in adoption support assessments being undertaken that accord with the statutory obligations of the local authority. A has had the benefit of a legal team who are recognised experts in this area of the law, but even with the level of expertise it has still taken over twelve months for an adoption support plan to be presented that complies with the legal obligations of the local authority. The court is extremely grateful to Mr Wilson and Ms Dally who acted pro bono in relation to advising A about related judicial review proceedings and the drafting of two pre-action protocol letters about the local authority adoption support decisions.

(The children’s mother had died in a car accident when they were young – the children went to live with an aunt and grandmother in another country and the aunt had to flee that country due to persecution – she had spent a year in captivity being tortured. The aunt is the adopter here, and one can see that firstly she would need help and support and secondly that the Court was likely to feel sympathetic towards her quite rightly)

The children had considerable needs, including one child who had extensive scarring on her body from her father throwing hot oil over her.

B has significant health needs and has been diagnosed with Kernicterus, a neurogenetic or neurometabolic disorder which is caused by a rare complication of jaundice causing brain damage. He has four limb motor disorder with oral and peripheral limb involuntary movements and associated difficulties with eye opening and being able to look upwards. Due to the stigma attached to disability in Country X, B had not attended school.

B’s twin sister, C, was subjected to sexual abuse in Country X and although she attended school she has struggled with panic attacks, suicidal ideation and unexplained seizures. She is currently being supported in her school, and through CAMHS.

D attended school in Country X but has permanent scarring on her body as a result of third-degree burns caused by her birth father when he threw hot oil at her mother. This has had both physical and psychological consequences for D.

Very much NOT the case you would pick as a Local Authority to try to defend not giving adoption support.

The Local Authority prepared an Annex A report in August 2023 which supported adoption orders being made. In relation to adoption support the report failed to include any assessment of the family’s need for adoption support services and contained the legally incorrect assertion that ‘the placement is not eligible for adoption support’ as it was a ‘non-agency adoption’.

Theis J summarises the legal position regarding adoption support

Turning to the question of adoption support services section 3 (1)-(2) ACA 2002 require the local authority to maintain adoption support services designed to meet the needs, in relation to adoption, of children who may be adopted and persons wishing to adopt a child. Such services are specifically designed to assist adoptive families. The Statutory Guidance of Adoption published in July 2013 makes clear at paragraph 9.1: ‘The provision of a range of adoption support services is a crucial element of the statutory framework introduced by the Act. This is based on the recognition that adoptive children and their families are likely to have a range of additional needs.’

Section 3(3) ACA 2002 requires that such support services must extend to those persons prescribed by regulations and may extend to other persons.

Section 4 ACA 2002 provides that ‘a local authority must at the request of …(a) any of the persons mentioned in paragraphs (a) to (c) of section 3(1)…carry out an assessment of that person’s needs for adoption support services’. Those listed in section 3(1)(a) ACA 2002 include children who may be adopted and persons wishing to adopt. The local authority is obliged to undertake an assessment of need for adoption support services, if requested to do so by A.

The Adoption Support Services Regulations 2005 (‘ASSR 2005’) prescribe the services which must be available, those individuals to whom adoption support services must be provided, and the nature of any assessment of need for adoption support services. The combined effect of s3(3) ACA 2002 and Regulations 3 and 4 ASSR 2005 is that:

(1) The only support service which must be offered to A, subject to an assessment of need, is counselling, advice and information.

(2) The local authority is not obliged to offer other prescribed support services, such as financial support, therapeutic support, or services to prevent disruption, to A. This is because the imperative to provide such services is limited to an ‘agency adoptive child’ or the adoptive parent of such a child. The local authority may, however, offer such services and has a discretion to do so.

This is confirmed at paragraph 9.7 of the Statutory Guidance which provides:

‘Under section 3(3)(b) of the Act, local authorities have discretion to extend services to persons other than those to whom services must be extended. This means that, for example, services to prevent disruption could be provided to a non-agency adoptive child, and financial support could be provided if the local authority considered this appropriate.’

Regulations 13 to 18 ASSR 2005 govern the manner in which an adoption assessment must be carried out. Pursuant to Regulation 13(3) ASSR 2005, the local authority is not required to assess the person’s need for a service if he is not within the description of persons to whom such a service must be provided. However, it has a discretion to do so. This is confirmed at paragraph 9.43 of the Statutory Guidance:

‘The people who are entitled on request to an assessment of their need for adoption support services are set out in section 4(1) of the Act and ASR 13. As explained in paragraph 6, ASR 4 limits the local authority’s duty in this respect to an assessment of need for support services of the kind to which each category of person is entitled. Local authorities have discretion under section 4(2) of the Act to undertake an assessment for other persons or in other circumstances if they think it appropriate.’

Section 4(5) ACA 2002 requires the local authority, if it is to offer adoption support, to prepare an adoption support plan and keep the plan under review.

As Mr Wilson submitted at an earlier hearing when the local authority had failed to carry out an assessment:

(1) The local authority is in breach of its statutory duty to undertake an assessment of A’s need for adoption services.

(2) A is not ineligible for adoption support. She is eligible for the full range of adoption support services if the local authority chose to assess her for them. Insofar as the local authority does not assess her for financial or therapeutic support, this is a decision on its part not to exercise its discretion to do so.

(3) Such a decision is amenable to challenge on the usual public law grounds.

As a result of this analysis Mr Wilson submitted that the local authority’s contention that A is not eligible for such support services and that the support available to her through Early Help is higher than that under Adoption Support is both ‘legally misconceived and factually incorrect’ as it ‘misunderstands the local authority’s discretion to assess her for support services and ignores the benefit to the family of having any support offered to it enshrined within a formal, statutory document in the guise of an adoption support plan’.

In determining whether the court should make an adoption order the court can only make such an order if it meets the lifelong welfare needs of the child in accordance with section 1 ACA 2002. The child’s welfare is the court’s paramount consideration in reaching any decision, having had regard to the welfare checklist under s1(4) ACA 2002.

The LA did, albeit at quite a late stage of proceedings, agree a package of adoption support for the family and to backdate some payments

I am satisfied that each child’s welfare requires the consent of their birth father to be dispensed with. He has had no active involvement with the children throughout their lives and any involvement that he has had has caused them significant physical and emotional harm.

Although the issues regarding an Adoption Support Plan have finally been resolved it is of very great concern that it has taken twelve months, and that part of that delay was caused by a fundamental misunderstanding by the local authority of the relevant legal framework that governed the assessments for such support. It was only through the tenacity and expertise of A’s legal team and two letters before action that the situation now has been reached where agreement was possible. That additional significant delay and lack of certainty has been contrary to the welfare needs of these three vulnerable children.

Having considered the evidence in this case and the updated adoption support plans, with the additions made at this hearing, I am satisfied that the lifelong welfare needs of each of these children can only be met by the court making the adoption orders.

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Not law – my little round up of things I’ve really enjoyed this year

Posted on December 4, 2024 by suesspiciousminds

So feel free to ignore if you’re just here for the law. This is a skippable one.

I often like to do a little December round-up of pieces of culture that I’ve really enjoyed in the year, whether that be music, books, films, podcasts or whatever.

I’m chiefly going to talk about K-Drama, that is tv that comes from South Korea, because I’ve got so into that this year and I want to share my passion and some recommendations.

What I like most about K-Drama is that it delivers such a powerful hit of good stuff in such concentrated form – if there’s a romance scene you’ll be desperate for the characters to get together and devastated when an intervening event gets in the way, if there’s humour you’ll genuinely be laughing not merely smiling and the action stuff is up there with the best Hollywood sequences. Also, they blend genres so effortlessly. The attention to detail on character and the tiny moments that illuminate character is another prominent feature. People may act in ways that surprise you, because the shows are hard to predict – but you will understand as things unfold why they acted in ways that made complete sense for them and who they are at their core.

When was the last time you really laughed during a western rom-com? If you’re watching a K-drama that’s a romance, it will be laced with really funny moments in every episode.

They will often have a bit of an elevator pitch that you just have to go ‘okay, that’s the particul. ar rule that they’ve given themselves for this programme, and let’s see what they can do with that rule’ – suspend your disbelief in the central premise for a bit and let it flow. Oh also, you just don’t tend to get underwritten supporting characters – if the female lead has a best friend then that best friend could easily have her own show, if the male detective has an older assistant then he’ll have his own set of quirks and dynamics – when you watch the show it is really easy to imagine these side-characters continuing to exist and going about their own lives and dramas when the main characters aren’t around – they don’t just feel like devices to advance the plot.

Here are some that I’ve really enjoyed

Miss Night and Day – this is a comedy and a romance, and a thriller murder mystery, and it works and delivers on each of those. Lee Mee-Jin is our female lead and she’s a young woman who lives with her parents and unsuccessfully tries to get into the civil service year after year. After an event, she is cursed/blessed with a situation where in the hours of daylight she is now a 50 year old woman and in the night she reverts back to herself. She gets a job as the old version of herself at a Prosecutors office and finds herself in both forms involved in a murder mystery. Both versions of Mee-Jin have excellent comedy chops and she has to keep getting herself out of situations where she either can’t be around certain people as she’s about to change forms or she knows something as one form that she really shouldn’t know as the other. Great theme song too. You can watch this on Netflix.

A Shop for Killers – this is an action / mystery show. Jeong-Ji is a college student at her family home, dealing with the aftermath of her uncle Jeong Jin-Man’s funeral, when ten contract killers turn up to assassinate her. She’s more capable than the audience, or she, imagines, due to her uncle having carefully and subtly teaching her life skills that she didn’t even realise were important. It’s got the best cold open – we just start with the killers marching towards her home and a sniper taking shots at her whilst two people we don’t know at all cower in her living room. The action all takes place in a single day with flashbacks to the past that let us gradually get to know Jeong-Ji and Jin-Man and start piecing together why all of this is happening to her. The action is top class. You can watch this one on Disney

Moving – this is a super-hero series, but one that’s trying to be grounded in reality. If you liked Heroes back in the day, this is a modern equivalent of that but with much more depth to the characters and action sequences and effects that beat anything Marvel is doing. We follow some students at a school and slowly learn that some of them have superhuman abilities. We also learn that someone is killing off adult superheroes and doing so efficiently and brutally. We then get to learn about the students parents and their gifts and life stories and how everything all ties together. Every single character is packed with interest and charm. There’s an episode which is all about Jang Ju-Wan’s character, who up until this point has been a cash-strapped dad rather ineptly pursuing his dream of owning a fried-chicken shop – we go back to his past as a gangster and learn that his superpower is that he can’t be permanently injured. The hour that follows is mind-blowing action, as he just engages in a vast number of fights, chases, more fights against overwhelming numbers and uses that superhuman gift (he can be injured, he can bleed, it hurts, he just recovers really quickly) in amazingly creative and brutal ways. It is properly up there with John Wick/The Raid action, but it is just a small part of the whole series. That episode is probably the best hour of television I’ve ever seen, because amongst the action you also get character, humour, vulnerability, a charming love story and a tragedy.

And I challenge anyone not to fall in love with Beong-seok, our male lead who is a teenage boy over-protected by his mother, and who has to eat double-portions of dinner and lug round weights in his school bag because if he loses concentration or gets emotional he will float into the air. I adored him. You can watch it on Disney.

Money Heist – the Korean version. Money Heist was already great, and I had some doubts that an adaptation was necessary or could pull it off – is there another actor in the world who could pull off Berlin’s character, for a start? Well, it is well worth a watch – a lot of the beats are the same but there are enough swerves and wrinkles to make it unpredictable even if you’ve seen the original. There are a lot of smart choices to smooth out some of the slight missteps of the Spanish version – we don’t have the ugly side of Berlin’s womanising here and the Professor’s situation with the lead cop is more plausible and insidious. If you’ve never seen either, I’d still watch the Spanish version – a group of robbers all named after cities do a daring raid on the national vault, but they aren’t only after taking what is there and the brains behind the operation thinks very differently to any planner you’ve seen before. I actually think the Korean version makes the manager of the bank even more infuriating and loathsome than the Spanish version, which I would not have thought possible. (He’s a great actor, and has a smallish part in my next recommendation too, and he’s great in that)

Crash Landing on You – this is really the magnum opus of k-dramas. Cannot recommend highly enough

The central conceit is remarkably silly. It is romance/comedy/drama/thriller – and as I’ve said earlier, nothing else successfully blends genres like a k-drama. If you read a description of a show on British TV as a ‘comedy drama’ then it won’t really be funny or dramatic, but it will be a tiny bit both – it might make you smile, it certainly won’t make you belly laugh. That’s not what you get in Kdrama. When I watched this show, there were quite a few times I had to pause it because I mysteriously got grit in my eyes and couldn’t see the screen any more.

Yoon Se-ri is a fashion tycoon from South Korea – she’s about to be appointed as the successor to her father’s multi-million business (yes, the first episode of this show sets up a Succession style drama where Se-ri, her two venal brothers and their wives (one ditzy and scheming, one pure Lady MacBeth) all jostle for power and position – and the show STILL does that, but it immediately goes ‘we can just have this element of the show as the D-plot with everything else we’ve got going on’ )

For a publicity stunt to launch her new line of sports-wear, Se-Ri goes paragliding but a freak storm knocks her off course and she crashes into a tree. When she wakes up, she sees a solider from the North Korean army – the stoic and serious Ri Jeong-Hyuk and she realises that she’s accidentally been blown into North Korea. What we then get is a fish out of water comedy as the spoiled rich kid adjusts to life in a small military village in North Korea, a romance that blossoms, a french farce of concealing her and lies getting out of control, as well as a taut political thriller with Jeong-Hyuk being drawn into power-plays at the highest level of power and being a pawn in that WHILST also trying to find out who murdered his brother and get revenge. And then everything gets flipped on its head in the second half of the season, which is frankly even better than the mind-boggling good first half.

The supporting cast in this are incredible – there was no reason for the military wives in the village and the meddling female jobsworth inspector to be so well-rounded and drawn and you to fall in love with each and every one of them, there’s no need for each of Jeong-Hyuk’s little squad of soldiers to all be fully-realised characters that you never want to leave – no need for Se-Ri’s downtrodden personal assistant to have his own character arc. But it gives you all of that, and keeps you guessing throughout. Right until the final episode I didn’t know how the show was going to end.

It is just so good. The chemistry between the two leads is so remarkable that they actually got married after the show finished – you can really see them falling in love in real-time. Both of them change and grow so much – the actress who plays Se-ri does a remarkable job of getting you to care about and adore a character who initially starts as being pampered and entitled and you get to see other facets of her that transform everything you think of her, but even at her haughtiest she is still charming and funny even as she’s being ghastly and demanding scented candles from people who don’t even have functioning electricity.

There’s a little throwaway gag reveal really late on involving online computer games which made me laugh so hard that I thought I’d injured myself, and it showed so much about three characters – it didn’t need to be there at all, it was a throwaway moment but it was done with such care and touch. It was a joy throughout. Be prepared to cry though.

You can watch it on Netflix – and you should absolutely do that. Go and watch it now. I want to talk to people about it endlessly.

My god, they’re both so incredible.

These guys – I wanted a whole series just about them. “I think we should fall upon this fried chicken as though they were the enemies of our fathers…”

Watch Crash Landing on You – and if you’ve already watched it, watch it again.

Honourable mentions also to Gyeongseong Creature – which is a wartime monster thriller drama romance, set in occupied Korea during WWII where the male lead floats through life in a sort of Casablanca/Great Gatsby vibe – he’s making a great living running a pawn shop and he is the man who knows everything and can get everything, but doesn’t care about anything. That sadly gets him drawn into finding the missing mistress of the head of military police, and into awful Japanese human weapon experiments on developing the ultimate killing machine. You can watch that on Netflix.

Taxi-Driver – where the conceit is that a taxi-company and a victim support charity are really just fronts for an Equaliser-style vigilante organisation who get revenge on criminals who the law isn’t touching, and then put them in their own personal prison (run on their behalf by an incredibly alluring female mobster). The male lead in that is a former actor and former marine who goes undercover to properly target his victims and get revenge and he’s charming and smooth and funny. Also, he’s a dab hand with a hammer and a nail gun. You can watch season one of that on Netflix.

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The Tooth, The Whole Tooth and Nothing But the Tooth

Posted on November 29, 2024 by suesspiciousminds

Well, it is a delight to be able to use a joke in the title that I first read in the 1980 Beano annual, I have no shame.

When you see in the Family Court bailii section a case headed General Dental Council v KK & Anor [2024] EWHC 3053 (Fam) (25 November 2024)

http://www.bailii.org/ew/cases/EWHC/Fam/2024/3053.html

You immediately think, either that’s been misfiled or it is going to be interesting.

It relates to findings made in the family Court about a father who happened to also be a dentist by profession. The findings included :-

In summary, these concerned domestically abusive behaviour towards Witness A including physical assault by slapping, pushing, punching and strangling; making threats to kill Witness A; threatening to hit Witness A with a hammer; and threatening to hit Witness A’s children with a hammer. These allegations were very serious.

The General Dental Council, who regulate whether dentists should be able to continue to practice – it obviously being a job where the dentist is dealing with members of the public, sometimes in a vulnerable state, were conducting a hearing about the father. They asked the Local Authority for documents and information.

The Local Authority here should obviously have told the GDC that they would need an order from the family Court and made that application on notice – either with consents of the parties, or more likely setting out that there was opposition to that disclosure.

Instead documents were disclosed and LA staff, including their in-house advocate who conducted the hearing, filed statements for the GDC.

What occurred in this case serves as a salutary warning to local authorities and to other public bodies about the unlawful mishandling of private information before the family court.

In summary, the reason this application has been made in the High Court is because, following a request made on 23 July 2019 by the GDC to the local authority for the disclosure of information relating to the care proceedings, the local authority – Stockport Metropolitan Borough Council – provided a significant volume of documents from and connected with the care proceedings to the GDC in the absence of any order from the family court authorising such disclosure. Additionally, witness statements were also provided at the request of the GDC by two social work professionals and the solicitor advocate who represented the local authority at the final hearing in the care proceedings. It is obvious that this extensive disclosure was made in contravention of s.12 of the Administration of Justice Act 1960. Accordingly, this court was required to resolve (a) the properly constituted application subsequently brought by the GDC for disclosure of documents from and connected to the care proceedings and (b) any prospective contempt proceedings.

The Court were deciding three things – how to deal with the documents that the GDC had erroneously had, whether to now formally give permission for disclosure of material from the family Court case, and whether to deal with the LA staff in contempt hearings – it was accepted by the LA that the disclosure had not been lawful and that it amounted to a contempt of Court.

The Court decided that all of the documents that the GDC currently had in their possession should be destroyed. The Court determined at an earlier hearing that there should be leave for disclosure of material.

In relation to contempt, the Court decided this:-

The unauthorised disclosure which occurred in this case should never have happened. Mr Crabtree submitted how very seriously aggrieved KK was at having to defend himself and his livelihood without the financial resources to do so in proceedings before the GDC which were tainted by the improper acquisition of highly sensitive documents from the local authority. KK drew a distinction between the local authority and the GDC, firmly believing that it was the GDC which led the local authority into error. He thought that GDC employees and those of the local authority who should have known better should be named and shamed in my judgment. He urged me to make a costs order against both public bodies.

For its part, the local authority recognised the seriousness of its misconduct and recognised that it would be identified in my judgment. It had made an unreserved apology to KK and would be responsible for payment of part of his costs in these proceedings. However, Mr Jones KC pointed to the strenuous efforts which the local authority had made to ensure that unauthorised disclosure of material from care proceedings would not occur in future. It had set up training for staff in the authority and produced a protocol which addressed how requests for information relating to care proceedings were to be managed in future.

Likewise, the GDC accepted the seriousness of what had taken place and had offered a fulsome apology to KK. It offered to bear its fair share of KK’s costs in these proceedings and it too had engaged in an extensive programme of education and training for its staff to prevent a similar occurrence in future. The GDC accepted that it would be named in my judgment.

Given all the above, both public bodies submitted that naming individuals in their respective organisations who were at fault and who should have known better was neither necessary nor proportionate. To embark on such a process would necessitate those individuals having to obtain their own legal advice (though probably supported and funded by their employer); and to make submissions to the court on an informed basis. This would cause considerable delay and significant cost to, ultimately, the public purse. Both the GDC and the local authority emphasised that what had occurred was due to ignorance rather than any deliberate or malicious intent.

I have thought carefully about whether I should instigate contempt proceedings against both the GDC and the local authority. Applying the factors set out by Steyn J in JS v Cardiff City Council (see above), I have concluded that contempt proceedings are not warranted in the circumstances. First, compliance with the requirements of the relevant rules contained in the FPR has now been achieved and the court has ruled on the principle of disclosure generally and on disclosure with respect to certain documents. Furthermore, an extensive process of rectification has been undertaken by the GDC to identify and destroy all unauthorised disclosure in its possession. That process has consumed significant time and resources within the GDC which is a salutary reminder of the consequences for a public body of failing to comply with the court’s rules and processes. I am however satisfied that the GDC has completed the rectification process and that it now only holds disclosure authorised by the court.

Second, both public bodies have offered an unreserved apology to KK and to the court and both have put in place measures to ensure such unauthorised disclosure does not occur in future. Both will also be liable for KK’s costs in these proceedings, each paying half of the total sum. I have considered carefully the explanations offered by each for their conduct and accept this arose from lamentable ignorance in both public bodies about (a) the confidential nature of family court proceedings and consequently (b) the need to obtain the court’s permission for any disclosure of family court documents. For its part, the local authority misunderstood the obligation on it to assist the GDC by supplying it with information and documents in circumstances where it was perfectly plain that the GDC’s powers to require documents were subservient to statute and to the provisions of the FPR. The GDC also failed to understand the limits on its powers when legal proceedings had taken place which bore directly on matters of professional concern to it. Neither public body acted maliciously. Contempt proceedings would take up precious court time and resource as well as the resources of two publicly funded bodies and would, in my view, be disproportionate.

Finally, I find that bringing contempt proceedings against named employees of the two public bodies would serve no useful purpose and I accept the submissions made on this issue by the local authority and the GDC.

Conclusion

The contents of this judgment stand as a salutary warning to local authorities and to other public bodies concerned with fitness to practise in occupations concerned with or touching on the welfare of children. It is plain that there was a woeful ignorance about the confidential nature of documents produced for the purpose of care proceedings and about how requests for disclosure should be managed. The costs incurred by the GDC and the local authority have been significant and both have been shamed by what occurred. I hope what took place in this case will not happen again.

That is my decision.

It is indeed a reminder to all professionals that there are very strict rules about disclosure of material from the family Court and that before anything is shared, it is vital to properly establish that that sharing of material is lawful and that if leave of the Court is needed, it is obtained

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Posted in Uncategorized and tagged contempt of court, disclosure, general dental council v kk 2024, unlawful disclosure. Bookmark the permalink.

Very sad case

Posted on November 25, 2024 by suesspiciousminds

This is a truly awful situation. C is ten years old. She is in hospital with very serious injuries from a fire at her home. The fire killed her sister and her mother. The evidence at this stage suggests that the mother set the fire.

D is the man named as the father on her birth certificate but DNA testing has established that he is not her biological father – he would wish to be involved in her life but does not put himself forward as a carer.

A Local Authority v The child C [2024] EWFC 336 (21 November 2024)

http://www.bailii.org/ew/cases/EWFC/HCJ/2024/336.html

The Judge, Peel J, makes this clear about the LA

I make it abundantly clear that from everything I have seen and heard, the LA, whether proceedings take place under Part IV of the Children Act 1989 as a care application, or under the wardship jurisdiction, is utterly committed to promoting the best interests of C. This is not a LA which needs judicious encouragement to do so, or which will tailor its approach depending upon which legal framework is adopted.

Two legal questions arose from this very tragic set of circumstances. The first is whether the actions of a parent who died before the proceedings began can amount to conduct that satisfies the threshold criteria. The second is whether the correct legal approach in a case of this kind is care proceedings or wardship.

 On the date of the application here, the only relevant parent was deceased. A query arises as to whether it would be open to the court to make a threshold finding in these unusual circumstances. Both the LA and the Guardian agree that the LA is entitled to bring, and the court can consider, care proceedings even though the parent was deceased at the time of the application. They tell me that absence of authority on the point can cause difficulties in similar cases.

Whether, however, care proceedings are the appropriate course is another matter entirely.

There are two pre-requisite conditions for the threshold to be crossed.

First, by s31(2)(a) the court must be satisfied that “the child concerned is suffering, or is likely to suffer, significant harm”.

Second, by s31(2)(b) that (so far as relevant to this case) “the harm, or likelihood of harm, is attributable to- (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him”.

It is well established that the relevant date for the first condition (harm) is the date of the application or, if earlier, the date upon which protective measures were implemented and continuously in place until the application. This applies both to harm which has already taken place (Re M [1994] 2 FLR 577) and to the likelihood of harm in the future (Southwark LBC v B [1998] 2 FLR 1095). This is entirely logical; if it cannot be shown at the date of the application that a child is suffering, or likely to suffer, significant harm, then there is no basis for the application and no justification for state interference.

Does the second condition (attributability) depend on the parent giver being alive at the date of the application? In theory, the argument may be that if the parent who caused harm prior to the date of the application is deceased, then it is not possible to attribute harm at the date of the application and accordingly it is not possible to make a threshold finding. I confess to find it somewhat difficult to follow this logic. There is, so far as I am aware, no temporal requirement for the second condition, namely the attributability of harm; in other words, it is not a condition that the attributability must be referable to parental care at the date of the application (which might exclude a deceased parent who is in no position to give care). There does not appear to be a case directly on the point. However, it seems to me that s31 should be interpreted purposively, and support for that approach can be found in Re J [2017] EWFC 44 where the parents of unaccompanied asylum-seeking children were either missing or deceased, and certainly were not in the position of carers at the time of the application. Peter Jackson J (as he then was) had no hesitation in concluding that the threshold criteria had been met.

In my view, the attributability requirement is not to be confined to, or aligned with, the date of the application. C was at the date of the application suffering significant harm. That harm was, on the evidence currently available, attributable to the actions of her mother a mere 7 days previously. It would be extraordinary if, in such a situation, the Local Authority could not take steps to protect the child. It would lead to the anomalous situation that the court would not be able even to inquire into threshold, however, desirable that might be, or seek protective orders. The purpose of Part IV of the Act is to enable children who are suffering, or likely to suffer, significant harm caused by parents to be protected from that harm by Local Authority intervention. To neuter s31 because the parental perpetrator of harm is no longer alive would be an unexpected, and unfortunate consequence. But in my judgment that is not the intention of the Act, nor is it what the Act says. A plain reading of the words in s31(2)(b) that the harm must be attributable to “the care given to the child” must include past care, i.e before the date of the application, which led to the application itself. The wording does not expressly add “at the time of the application” or some such rider. Nor does it say that a parent must be alive at the time of the application. If my analysis is correct, then it matters not whether the parent is alive, or dead, or missing. What matters is whether the LA can establish (i) harm at the date of the application (or, if earlier, when protective measures implemented and carried through to the date of the application) and (ii) attributability of that harm i.e that it is a consequence of parental acts or omissions.

I therefore conclude that it would be open to the court to make threshold findings even though C’s mother was deceased at the time of the application for a care order.

(Of course, if the evidence were to establish that the mother were not responsible for the fire, or for any failure to properly act to protect once the fire occurred, then it might be difficult to establish threshold…)

On the question of care proceedings versus wardship, Peel J said the following :-

Decision as to care proceedings or wardship

On balance, I take the view that the preferred course is for proceedings to take place within the statutory framework provided by the Children Act 1989 rather than under the inherent jurisdiction through wardship, for the following reasons.

i) The first category identified in Re GC clearly does not apply. It is not “obvious” that the LA will be unable to satisfy the threshold criteria. On the contrary, based on the evidence currently before me, it seems probable that the criteria will be met without a need for elaborate or extensive inquiry. The coroner’s inquiry, which is due to be completed in January 2025, should add to the understanding of the circumstances in the foreseeable future. Other evidence may come to light and of course the court can take into account information which becomes available after proceedings commence: Re G [2001] 2 FLR 1111.

ii) At the very least, the interim criteria under s38 are comfortably met. Thus, an ICO can be made to govern proceedings until such time as a final determination on threshold is made.

iii) The second category in Re GC requires the court to consider (1) whether withdrawal of the care proceedings will promote or conflict with the welfare of the child concerned and (2) the overriding objective under the Family Procedure Rules.

iv) As indicated above, in my judgment the fact finding part of the Part IV proceedings is likely to be straightforward, capable of being dealt with at a short hearing.

v) Further, it will give a solid factual foundation for the welfare disposal, which will impact on all aspects of C’s wellbeing. I regard it as important for the truth to be known not just for the welfare determination, but for the rest of C’s life.

vi) The fact finding inquiry would take place within the care proceedings where C is represented. The court can make findings against deceased or missing persons as Peter Jackson J did in Re J (supra).

vii) There is no reason to think that C would be affected more negatively by care rather than wardship proceedings or vice versa.

viii) Similarly I do not have any reason to think that C’s family, who are of considerable importance to her future, would be impacted any more or less by care or wardship proceedings.

ix) The LA would acquire parental responsibility under a care order in circumstances where no other person has parental responsibility. There would be no doubt as to the LA’s role and responsibilities. Thus, the proposed list of delegated functions drawn up by the parties would necessarily fall upon the LA to discharge. There would be no need to return to court in the event of any doubt, as might be the case under wardship.

x) It seems to me that it is preferable, more readily understandable and far more in tune with modern thinking, for C to have the comfort of a statutory body exercising parental responsibility rather than to be subject to the ancient concept of wardship.

xi) Of course, serious medical treatment would need to be determined under the inherent jurisdiction. To date, that has taken place consensually. It can take place separately from the care proceedings.

xii) A care order (whether interim or final) would give a clear delineation of responsibility which, for example, may assist both the LA and the Hospital Trust in working through hospital care for C.

xiii) The outcome which the LA seeks to achieve, namely placement with family members, can be properly secured both under care proceedings and wardship. But there is no obvious reason for the assessments, and exploration of all options, not to take place under the statutory framework and in accordance with settled case law.

xiv) Although I am confident that the LA is entirely committed to promoting C’s welfare, should that, for whatever reason, change, the ability of the court under wardship to order the LA to approach the case in a particular way, or devote resources for a particular purpose, would be constrained whereas under care proceedings the LA would always be subject to its statutory duties.

xv) Wardship remains an option for the future. If, for example, the threshold criteria are not crossed, or become much less clear cut for whatever reason, it may then be the appropriate route; see, for example, Re K [2012] 2 FLR 1 where Hedley J elected to make a wardship order in respect of severely disabled children rather than explore threshold where there was some doubt as to whether the threshold criteria would be met and it was held to be inimical to their interests to pursue threshold findings. Another example might be if the lines of communication between the Hospital Trust and the LA become frayed or unworkable.

xvi) By reason of care proceedings, the court will retain general oversight and can list hearings as appropriate. There is no question of the court simply abdicating responsibility unless and until C’s future is settled. This is plainly a complex case, and the court will need to scrutinise carefully the care plan and various options.

xvii) Whilst wardship is a very flexible jurisdiction, it should generally be deployed only in order to fill gaps which are not provided for by the statutory frameworks for children. Here, I am not persuaded that there are any such gaps. Accordingly, in my judgment, to make a wardship order risks cutting across the statutory regime under Part IV of the Children Act 1989 and, in particular, s100(4) and (5) thereof.

xviii) Finally, and importantly, continuation within care proceedings will require a tight timetable in accordance with the Public Law Outline. The 26 week limit expires on 5 February 2025, and I will require the IRH/final hearing to be listed before then. Wardship, by contrast, is not subject to the same strictures.

Conclusion

Accordingly, I am satisfied that:

i) The application for permission to withdraw the care proceedings should be refused.

ii) The application for leave to apply for a wardship order should be refused.

iii) An interim care order should be made.

iv) Directions should be given in the care proceedings. In particular, this case must be listed for IRH/final hearing before the end of the 26 week limit. At that hearing, if it is not possible to conclude proceedings, the court will give consideration to future directions and whether the case should continue under wardship.

v) The declaration of non-parentage, and termination of parental responsibility, in respect of Mr D shall be adjourned to be considered at the IRH/final hearing. Mr D shall file within 21 days his case on this matter.

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Ooh, this is a doozy (Court of Protection)

Posted on November 21, 2024 by suesspiciousminds

Anyone at a Local Authority will have come across the tangled dynamic which is persuading a health authority that they ought to be finding a specialist bed for a young person who is obviously suffering from mental health disorders and hitting a brick wall ends up having to accommodate the young person through the inherent jurisdiction instead, often in a place that is doing its best but clearly not as good as a specialised health unit.

For that reason, I was very interested in the case of SB, Re [2024] EWHC 2964 (Fam) (19 November 2024)

https://www.bailii.org/ew/cases/EWHC/Fam/2024/2964.html

where Conway County Borough Council made an argument before Keehan J that made me shuffle three inches forward in my seat so that I was on the very edge of it.

This issue culminated in the local authority seeking a declaration and ancillary orders from this court, in short form, that because SB was detainable under the provisions of the Mental Health Act 1983 (‘the 1983 Act’), the court did not have jurisdiction to grant a DoL pursuant to the inherent jurisdiction. In practical terms, the thrust of the local authority’s case was that it was the responsibility of the health board, pursuant to the provisions of the 1983 Act, to make provision for the care and treatment of SB, and not the responsibility of the local authority even with the benefit of a DoL, if authorised by the court.

It won’t surprise you to learn that the Trust staunchly opposed this

The health board strongly opposed the position of the local authority. It asserted that this court had no jurisdiction to determine whether SB detainable in a hospital pursuant to the 1983 Act; it had no jurisdiction to exercise a reviewing or supervisory role of the decisions made by clinicians and professionals under the 1983 Act; and that for the court to make a declaration or findings as to whether SB was detainable under the 1983 Act put pressure on the health board to change its position, or otherwise, was an abuse of process

The stakes are pretty high on this one. If Conway prevail, suddenly there’s a route by which the Health Authority are compelled to do something about these cases – even if they decide not to accommodate, they are at least having to make a conscious decision to not accommodate and to bear the risks of this. (I’m astutely conscious of the fact that I’m writing this as a Local Authority hack, and no doubt if I were a Health hack I’d be massively opposed to it).

There are basically two difficult competing arguments here. The first is the Trust’s argument that there are many many authorities saying that the Courts have limits to their power and should not exercise them to inhibit the actions of other statutory agencies unless they are specifically charged with doing so.

“11. The starting point, in my judgment, is the fundamentally important principle identified by the House of Lords in A v Liverpool City Council [1982] AC 363 and re-stated by the House in In re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791. For present purposes I can go straight to the speech of Lord Scarman in the latter case. Referring to A v Liverpool City Council, Lord Scarman said (page 795):
“Authoritative speeches were delivered by Lord Wilberforce and Lord Roskill which it was reasonable to hope would put an end to attempts to use the wardship jurisdiction so as to secure a review by the High Court upon the merits of decisions taken by local authorities pursuant to the duties and powers imposed and conferred upon them by the statutory code.”
He continued (page 797):
“The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority. It matters not that the chosen public authority is one which acts administratively whereas the court, if seized by the same matter, would act judicially. If Parliament in an area of concern defined by statute (the area in this case being the care of children in need or trouble) prefers power to be exercised administratively instead of judicially, so be it. The courts must be careful in that area to avoid assuming a supervisory role or reviewing power over the merits of decisions taken administratively by the selected public authority.”

Lord Scarman was not of course disputing the High Court’s power of judicial review under RSC Ord 53 (now CPR Pt 54) when exercised by what is now the Administrative Court: he was disputing the High Court’s powers when exercising in the Family Division the parens patriae or wardship jurisdictions. This is made clear by what he said (page 795):
“The ground of decision in A v Liverpool City Council [1982] AC 363 was nothing to do with judicial discretion but was an application in this field of the profoundly important rule that where Parliament has by statute entrusted to a public authority an administrative power subject to safeguards which, however, contain no provision that the High Court is to be required to review the merits of decisions taken pursuant to the power, the High Court has no right to intervene. If there is abuse of the power, there can of course be judicial review pursuant to RSC Ord 53: but no abuse of power has been, or could be, suggested in this case.”
It is important to appreciate that Lord Scarman was not referring to a rule going to the exercise of discretion; it is a rule going to jurisdiction.”

The other argument is that the statute (Children Act 1989) says that the inherent jurisdiction cannot be used in a situation where there is already a statutory solution AND that section 3 of the Mental Health Act 1983 provides the statutory solution in this case. Thus that before the Court decides whether to use the inherent jurisdiction it is a necessary preliminary step to consider whether another statutory solution is available – thus the declaration they seek is just the Court doing what is required of it in any event.

LA readers here are saying “go Conway”, Health readers are saying “go Trust” (or more likely “What the heck am I doing on this website and well…how did I get here?”) and a lot of other people are doing the Alan Partridge shrug gif.

The Trust prevailed and the Court did not make the declaration:-

Analysis

The leading authorities are abundantly clear that this court has no role to supervise or review decisions which have been entrusted by Parliament to another public authority. The 1983 Act is an obvious example where Parliament has provided for a statutory code in respect of the detention of people with a mental disorder for treatment in hospital.

Schedule 1A of the 2005 Act makes statutory provision for finding that a person is ineligible from being deprived of their liberty under the 2005 Act, where in case E, they could be detained under the provisions of the 1983 Act. This express statutory provision enables the Court of Protection to consider and determine the question of whether a person could be detained under s.2 or s.3 of the 1983 Act. It is limited to the exercise of determining the specific question of whether a person is ineligible to be detained under the provisions of the 2005 Act. I cannot see any basis for concluding that this provision is to be read as having a wider application, and, in particular, to permit the court to determine whether a person is ‘within the scope of the Mental Health Act’ when exercising its powers under the inherent jurisdiction.

There is no authority for the proposition that a court contemplating the exercise of the inherent jurisdiction to deprive a person of their liberty had jurisdiction to encroach upon the issue of whether a person was detainable or could, or would, be detained in a hospital under s.3 of the 1983 Act. In the absence of clear authority, I am satisfied that for this court to make findings and/or declarations about whether SB was detainable under s.3 of the 1983 Act would be to exercise an impermissible supervisory or review function of the clinicians and mental health professionals acting pursuant to the provisions of the 1983 Act. This court has no jurisdiction to make such findings or orders.

Further, and in any event, even if this court did find favour with the opinions of Dr Vaidya over those of Dr Hales and made a finding that SB was detainable under s.3 of the 1983 Act what would that achieve? It would not, of itself, lead to SB being detained in a hospital for treatment under the 1983 Act. It might lead to the clinicians and professionals charged with making the decision to detain her under the 1983 Act, to change their professional opinions and decisions. However, to make orders in these circumstances would, as Hoffman LJ set out in ex p T (above), be an abuse of process.

If the court did make such a finding, and then went on to make the declaration initially sought by the local authority that the court could not then exercise the inherent jurisdiction to authorise the deprivation of liberty, SB could find herself in a position where she was not afforded protection by being detained for treatment in a hospital nor afforded the protection of being deprived of her liberty in a safe place. This would be an intolerable and unconscionable state of affairs.

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Posted in Uncategorized and tagged court of protection, keehan j, re sb 2024, section 3 mental health act. Bookmark the permalink.

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