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Category Archives: case law



This judgment is an appeal, where nobody involved comes out of it well.  There were moments when reading it where it was SO awkward that I felt each individual vertebrae try to leave my body so that they could stop dealing with the level of “awkward! warning awkward!” nerve signals that they were sending hither and thither.

Let us begin by saying that I don’t know ANY of the individuals concerned in the case, and I think in the interests of fairness it is best to read this whole thing on the basis that everyone involved on that day was just having one of those bad days and that succession of individual bad days cascaded and collided into a day so bad that it almost reads as though the Court had been the subject of some form of hallucinogenic gas attack.

A v R & Anor 2018

In very broad terms, this was a private law case, in which father was asking for contact with his 13 year old daughter T – with the sadly too familiar backdrop of a long history of Court dispute and litigation.

A psychologist, Mr Clowry, had been instructed to assess the child. The child had decided not to participate in the assessment. It is fair to say that nobody was enamoured of the report prepared (though it is obviously tricky to do a psychological assessment of a child if you don’t get to meet them).

  1. When the final hearing came before the court on 28 November 2017, it did so initially before a District Judge, for reasons I will come to, before latterly being placed before the learned Judge. As noted above, the order of 15 September 2017 made no provision for statements of evidence to be filed and served for the final hearing on 28 November 2017, nor for the filing and serving of a final report from the Children’s Guardian. In the circumstances, on 28 November 2017, the court was without up to date sworn evidence from the parents or a report from the Children’s Guardian on the issues that fell to be considered at the final hearing. For the reasons I have already set out, the expert report that had been produced the evening before the final hearing to inform the same was deficient by reference to the terms of the letter of instruction.
  2. At the hearing the Mother and the Children’s Guardian argued that the proceedings should be concluded. Both sought an outcome that provided for no order to be made with respect to the time the father spent with T. The Guardian’s Position Statement also urged the court to make an order pursuant to s 91(14) of the Children Act 1989 in respect of the father for a period of 12 months. However, no application had been issued. The father sought permission to instruct a replacement expert or an adjournment of the final hearing to permit him time to make a properly constituted application under FPR 2010 Part 25 for permission to instruct a replacement, with a view to him pursuing his argument for a far greater level of contact at an adjourned final hearing. In any event, the father sought a final child arrangements order that provided for a much greater level of time spent with T than was then taking place. The final hearing was, therefore, contested.
  3. Within this context, the learned judge proceeded, following submissions by counsel initially in front of the District Judge and then before the learned Judge, and contrary to the arguments of the father, to refuse the father’s application for permission to instruct a replacement expert or for an adjournment to allow the preparation of such an application. Further, and contrary to the varied positions of the mother, the father and of the child, the learned Judge proceeded to make a final child arrangements order. The final order made by the learned Judge in respect of the time the father would spend with T reflected the level of contact that was then said to be taking place. Accordingly, the order provided for the father to spend time with T for at least 2 hours once per month, with an additional 2-hour periods during the holidays, together with indirect contact.


Those of you who go to Court will be aware that the proceedings are tape recorded. Sometimes if the case is appealed, a transcript of the tape recording is made for the appeal Court. That’s what happened here, so these exchanges are exactly what was said in Court.  Prepare to cringe, and also prepare to have anxiety nightmares over the next few days of everything you’ve ever said in Court.


Make it stop, make it stop Prince Adam


  1. As I have noted, the final hearing on 28 November 2017 did not initially commence in front of the learned judge on 28 November 2017, but rather in front of District Judge Abigail Smith. The reason for this appears to have been that, whilst the learned Judge had reserved the matter to himself, he was very heavily listed on the day in question and the matter had therefore been placed in District Judge Smith’s list. The matter remained before the District Judge for approximately half an hour. During that time the parties made substantive submissions on the adequacy of Mr Clowry’s report and the proper course of action in respect of the report. The District Judge having expressed “severe concerns” regarding the report of Mr Clowry, counsel for the father, Ms Sarah Cooper, proceeded to make submissions in support of the continued need for expert evidence, a course opposed on behalf of the mother by Mr Persson and on behalf of T by Ms Topping.
  2. It is a noteworthy feature of the transcript of the hearing before the District Judge that, as was to become a feature of the transcript of the hearing before the learned Judge, counsel constantly interrupted each other. Ms Cooper’s submissions on the fate of Mr Clowry’s report were interrupted by Mr Persson, without demur from the District Judge. Mr Persson was in turn interrupted by Ms Topping, again without judicial demur. Indeed, at times the transcript appears to show simply an argument between counsel with no input from the District Judge. This conduct continued until the District Judge decided that enquiries should be made as to whether the learned Judge could take the case. The net result of the way this part of the hearing was conducted meant that no party ever got to the point of concluding a complete, focused and structured submission on any issue.
  3. The learned Judge agreed to take the matter and proceeded to hear the case, which had been given a three-hour time estimate, at 2.20pm. As I have noted, in summary the father’s first ground of appeal includes the complaint that the learned Judge had not properly prepared for the hearing. The father also complained before me that the Judge appeared, from his initial comments, to have reached a settled judgment from the outset. The opening statements of the learned Judge, who had had long involvement with this case, form the basis of the father’s contentions in this regard:
    1. His Honour Judge Scarratt: Yes well, I’m sorry you’ve had a bit of wait. The fact of the matter was this morning I had a one-day case with five applications and this three-hour hearing.

Miss Cooper: Yes.

His Honour Judge Scarratt: And so District Judge Abigail Smith’s diary emptied yesterday and I’m afraid this happens. Cases are moved about. Not ideal but as it happens I have finished my five applications and given judgment so I’m, I’m now free to deal this but you’ve really got limited time because I have to be at a meeting at 4 o’clock. I’ve got bundles here, I’ve not looked at them –

Ms Cooper: Yes.

His Honour Judge Scarratt: I mean I’m just going to go on what I know about the case and well I gather Brendan Clowry’s report was a nonsense so Judge Abigail Smith tells me.

Miss Cooper: Certainly the District Judge was not impressed.

His Honour Judge Scarratt: Yes, well I, I’ve, I have looked at that, eating my sandwich at lunch.

Miss Cooper: Yes.

His Honour Judge Scarratt: He’s gone completely off piste.

Miss Cooper: Well it, it is right to say –

His Honour Judge Scarratt: Well he’s gone off piste.

Miss Cooper: Yes.

His Honour Judge Scarratt: I’m putting it to one side and I doubt whether he’ll get paid.

Miss Cooper: Yes, well no doubt —

His Honour Judge Scarratt: So where are we now, that being the case.

Miss Cooper: You Honour, we are at the following bit of the case. What he had done was he had interviewed my client and my client and the mother had paid him quite a lot of money. The mother, I don’t know if you’ve seen, I did a further very short position statement, could I just briefly hand that up because I did it last night once the report had come —

His Honour Judge Scarratt: I mean at the end of the day your client’s got to accept that [T] has had enough. There’s a very poignant note to Mr Gaye, a very experienced Guardian, and last, I don’t think you were here last time.

Miss Cooper: No, I wasn’t your honour.

His Honour Judge Scarratt: No. Well can I tell you and this is the benefit of having me, judicial continuity.

Miss Cooper: Yes.

His Honour Judge Scarratt: That really last time, the application made by the Guardian being repeated today was made last time, but I felt your client should have a chance and that Clowry, who has now thoroughly blotted his copy book, I shan’t be having him again in these Courts, your, and, and I gave the chance for this to happen, but it’s not happened but, but at the end of the day I’ve got a 13 and a half year old girl there who’s saying actually, let’s have the contact, let’s have the drinks and the teas and the lunches or whatever, which have gone on. This is not a case where there’s no contact. So I think it can be finished quite, I think your client’s got to accept that contact should continue as organised between the parents. Does he agree that?

Miss Cooper: No, Your Honour.

His Honour Judge Scarratt: Well, I’m not having a final hearing with this little girl dragged in now. Have you read the letter from her?”

  1. Following this opening exchange, the learned Judge went on to conduct a hearing over the course of the next hour and a half. As I have noted, in his first ground of appeal, the father also contends that during this hearing the learned Judge proceeded to make final orders without any proper consideration of the arguments being advanced by the parties with respect to that issue. Within this context, the father also complains before me in support of his grounds of appeal that the hearing descended into what the father termed a “shouting match“. The genesis of these complaints by the father is apparent from the transcript.


Part of the father’s appeal was that the Judge was unprepared for the hearing. Given that he was only doing it because the hearing before the DJ had gone so wrong that it was moved to a different Judge on the same day, it wouldn’t be surprising if the Judge was unprepared.  Nor, given that he candidly says that he hasn’t read the bundle and has read the expert report ‘over a sandwich’ reaching a conclusion that it was ‘nonsense’  would it be surprising for the Appeal Court to agree that the Judge was unprepared.

The conclusion of the Appeal Court is, perhaps, surprising though.


  1. I am not satisfied that the father has made out his complaint that the learned judge had not prepared adequately to deal with the matter on 28 November 2017, nor am I satisfied that the father has made out his complaint that the learned Judge pre-judged the matter.
  2. As is clear from passages quoted above, it can perhaps be seen why the father, as a lay person, drew these conclusions from the statements made by the learned Judge at the outset of the hearing. However, with respect to the issue of preparation, whilst the learned Judge indicated he had not looked at the bundles, he had long experience of this matter, having dealt with it on numerous occasions previously. He was therefore well versed in the key issues before the court. Whilst the learned Judge’s announcement that he had read Mr Clowry’s expert report over his sandwich at lunchtime may suggest to a lay party a certain informality of approach, the need for judges to work through lunch in order to get through the work in their extremely heavy lists is the modern reality for judges up and down the country. Within this context, the fact that the learned Judge combined eating and reading is not an indication of a lack of diligence or preparation. Rather, it is quite the opposite. The learned Judge worked assiduously through his lunch break to ensure he had considered the material relevant to the hearing he was about to conduct.
  3. In relation to the father’s complaint that the learned judge had pre-judged the matter, the learned Judge did say at the outset that “I think it can be finished quite, I think your client’s got to accept that contact should continue as organised between the parents“. After asking Ms Cooper whether the father agreed with this analysis, and being told he did not, the learned Judge did respond, “Well, I’m not having a final hearing with this little girl dragged in now“. It is clear from the transcript that the learned Judge also continued, throughout the hearing, to press the then current contact regime as the appropriate outcome.
  4. Within this context, it is the case that the learned Judge expressed himself in robust terms early on during the hearing and I can understand why the father raises this issue before me. However, I also bear in mind that the matter was listed on 28 November 2017 for a final hearing rather than a preliminary case management hearing, at which final hearing the learned Judge was required to adopt an essentially inquisitorial role in pursuance of his duty to further the welfare of the child as his paramount consideration. Within this context, at least on one reading, the learned Judge was simply exploring at the outset of the final hearing the extent of the issues between the parties at the final hearing and inviting the father to consider a reasonable view on the information available to the court. Finally, as Mr Persson points out, upon being told that the matter was contested by the father, the learned Judge did go on to conduct a hearing and to listen to certain submissions from the parties.
  5. In the foregoing circumstances, I am satisfied that it cannot be said that the learned Judge failed to properly prepare himself to conduct the hearing. I am also satisfied that, whilst perhaps falling somewhat closer to the line marking the boundary between a robust, inquisitorial approach and premature adjudication (to adopt the phrase utilised by McFarlane LJ in Re Q) than is often the case, within the context of the case being listed for final hearing, the learned Judge was not guilty of pre-judging matters.


And yes, I did contemplate “premature adjudication” as the title of this post, but there’s no way I’m typing THAT into Google Images.


The Guardian also gets a rebuke (which might ordinarily be stinging, but in the face of everything else going on in the case is mild) for promising the child that the next hearing would be the last one, which was of course outside of her control and a promise which should not have been made.


  1. The email from the Children’s Guardian of 4 October 2017 is, in many respects, carefully drafted. It is of concern however, that the Children’s Guardian also informed T in that email that the learned Judge had “promised” that the proceedings would end on the next occasion. This is not an accurate reflection of what the learned Judge had said and, in any event, is not a promise he could have made, not least having regard to the right of a party to appeal. The email from T of 1 October 2017 appears to have been disclosed to the father’s legal team some time after it was sent, even though it was plainly relevant to the question of expert evidence.


MacDonald J is critical of some drafting, in the order authorising the instruction of an expert – where the wording is reminiscent of ‘mission statements’  in that nobody could ever actually believe in or support the opposite


  1. The letter of instruction to Mr Clowry is contained in the appeal bundle before me, dated 18 September 2017, which letter provides as follows with respect to the instructions to Mr Clowry:
    1. “Pursuant to the order of His Honour Judge Scarratt dated 15 September 2017, you are instructed to meet with the parties and the child, as set out in your letter dated 25 August, to prepare a report setting out a robust, clinically legitimate and reputable plan of clinical work for the sound and lasting advancing of contact between T and her father.”
  2. Leaving aside the rather peculiar terms in which the instruction is couched (parties to proceedings would hardly wish a report that was not robust, clinically legitimate and reputable), the term “Pursuant to the order of His Honour Judge Scarratt” at the beginning of the instructions to Mr Clowry is a potential cause of confusion. Whilst the letter of instruction limits the instructions to Mr Clowry to the preparation of a “robust, clinically legitimate and reputable plan of clinical work”, the permission given in the order of the learned Judge is in somewhat wider terms, namely “to prepare a report in respect of the time that T should spend with her father.”



Now the expert.   We remember that the Judge had said he’d gone off piste and his report was nonsense… well, he had been asked to attend, so the Judge got him in.  Oh God, this is hard reading.


  1. in the context of the District Judge having expressed “severe concerns” regarding the report of Mr Clowry, and the learned Judge having stated that his report was “nonsense“, that Mr Clowry had “gone off piste“, that he had “thoroughly blotted his copy book” and that the learned Judge would be putting the report aside, and despite strenuous objection from Ms Topping, the learned Judge decided to hear from Mr Clowry, who was invited into the courtroom. His opening gambit to Mr Clowry was as follows:
    1. His Honour Judge Scarratt: Afternoon. Just, just come and sit there for a moment will you. Everyone is thoroughly disappointed with this work you’ve done. When I say everyone, I mean everyone. It not what we asked for at all.”
  2. Notwithstanding the views expressed by the learned Judge during the course of the hearing, and his level disappointment stated directly to Mr Clowry, the learned Judge then proceeded to enquire of Mr Clowry when the work he had been instructed to undertake could be completed if his instruction was continued. Mr Clowry having stated his work would not be possible if T would not agree to see him, the learned Judge also put to Mr Clowry that forcing T to see a psychologist would not work, in respect of which Mr Clowry responded as follows:
    1. Mr Clowry: Well, with respect to the language I think if that were the attitude and the way in which it was manage, forcing putting great pressure on a child but I think encouraging a child would not, might be productive.

His Honour Judge Scarratt: Well to be fair that’s exactly what the Guardian has done in a response, in a, in an email response. He has encouraged her, really, really encouraged her to go.

Mr Clowry: But, I would tend to see situations like that Your Honour not in terms of black and white. Sometimes in a preliminary meeting a child who has never seen psychologist or social worker might, perhaps if I saw the child with the mother, feel then on the basis of evidence having met the person reasonably inclined to continue. If the child is caught up in a very powerful adversarial situation there’s a high probability the child is going to reflect certain of the adult attitudes and opinions. If the child were enabled to meet the psychologist whether it be me or anybody else the child might then be prepared to reconsider. I don’t know, I don’t know the child.

His Honour Judge Scarratt: So you could, you could have a plan of work available by the end of next week could you?

Mr Clowry: Yes, indeed.

His Honour Judge Scarratt: Provided the mother and [T] saw you in the week?

Mr Clowry: Yes indeed Your Honour”

  1. Whilst having heard from Mr Clowry the learned Judge told him that he was “released”, this appears to be a term of art as there is no indication that Mr Clowry was sworn, and no party was permitted to cross examine him. The status of the information Mr Clowry provided to the court is, accordingly, unclear. He did not give evidence and his report was, by common acclaim, considered deficient by all parties. However, at one point during the hearing, and despite the criticisms levelled at the report of Mr Clowry by the Children’s Guardian, Ms Topping was permitted to rely in her submissions on that self-same report as evidence that the father had not reflected on his behaviours, whilst almost in the same breath stating the report was deficient and could not be relied on.
  2. Within this context, it is also unclear what status the learned Judge attached to the report, and to the contribution of Mr Clowry at the hearing when considering his decisions with respect to the instruction of a further expert and with respect to whether to conclude the proceedings. However, immediately before giving judgment the learned Judge said:
    1. His Honour Judge Scarratt: Yes well, I’ll, on the basis no wants to say anything else I’ll, and having now heard from Mr Clowry about what he can and cannot do, I’ll make a decision.”



MacDonald J, hearing the appeal was very critical of the way counsel had dealt with their submissions. My mental picture is of a Chimps Tea party, where the tea was laced with PCP, re-enacting an episode of Jeremy Kyle, but that may be too harsh.   Like I said earlier, anyone can have a bad day, and this is best chalked off as just being one of those rather than be taken as being representative of how anyone involved generally conducts litigation.


  1. During the course of the unstructured and unfocused submissions regarding expert evidence, at times the Judge appeared to be dismissing the question of a further expert out of hand. At other times, the learned Judge appeared to indicate it was an issue he was prepared to decide. The precise ambit of the issue the parties are addressing in respect of expert evidence is only belatedly defined and no party ever got to the point of concluding their submissions on the question of further expert evidence, although Ms Cooper made a valiant effort to conclude organised submissions to the Judge in support of permission for a further expert or a short adjournment to allow the preparation of a properly constituted Part 25 application.


  1. At this point, discipline in the hearing appears to have broken down entirely. The father himself begins to make submissions to the learned Judge, Miss Cooper, Mr Persson and Ms Topping continue to make points with little order, structure or focus, and even Mr Gaye enters the arena at one point. All this occurred as the learned Judge continued to propound his view that a final order should be made at the hearing, reflecting the then current level of contact, and sought repeatedly to press the parties to agree to that course of action.
  2. Within the foregoing context, it is of particular note from the transcript that no party was ever able during the hearing to get to the stage of making submissions on the key issue before the court, namely the question of whether, if the court decided to proceed to conclude the proceedings, a final child arrangements order should be made and, if so, the nature and extent of the contact in any final child arrangements order. Whilst counsel were able, up to a point, to make submissions on the question of whether the learned Judge should proceed with the final hearing or adjourn it, the increasingly unstructured nature of the hearing meant that, as conceded by Ms Topping and Mr Persson before me, no party ever reached the stage of making submissions, nor did the learned Judge invite submissions, on what outcome with respect to contact was in T’s best interests if the learned Judge determined, against his initial instinct, that it was right conclude the proceedings then and there. This was the case even though Miss Cooper had made clear on behalf of the father that the matter was contested, and that the father would be seeking more extensive contact in any final order than that then taking place, and even though Ms Topping’s instructions from the Children’s Guardian remained that there should be no order as to contact and an order pursuant to s 91(14) of the Children Act 1989 with respect to the father for a period of 12 months.
  1. In allowing the appeal, it is difficult not to have a good deal of sympathy for the learned Judge. He sought to assist the parties by taking the matter at short notice into an already busy list after the final hearing had already commenced before a different judge. Having done so, the learned Judge tried to further assist the parties by attempting to cut through a protracted dispute between two parents in what, on any estimation, was a long running case involving a young person with her own strongly held views about the way forward.
  2. Within this context, I make one additional observation. As I have already pointed up, the transcript of the hearing demonstrates that the learned Judge was not assisted in his difficult task by the approach of the advocates in this case. Both the transcript of the hearing before the District Judge, and the transcript of the hearing before His Honour Judge Scarratt, record each of the advocates, although counsel for the father a good deal less so, regularly interrupting each other. The net effect of that approach was that, as I have observed, neither judge received properly structured submissions, in the proper order on the points that were in issue between the parties, and no issue was ever fully run to ground. It is quite clear from the transcript why the father chose to describe the hearing as having descended into a “shouting match“.
  3. I am satisfied that this unfortunate situation before the learned Judge materially contributed to the primary reason this appeal has been successful, namely that, before making a final child arrangements order, the learned Judge did not hear submissions on the key issues before the court at the final hearing of the need for a final child arrangements order and the appropriate level of contact between father and daughter if such an order were made.
  4. FPR r 12.21, deals with the order in which a court hears submissions or evidence at a hearing and confers on the court a discretion in that regard. FPR r 12.21 reflects the fact that properly sequenced submissions constitute a vital constituent of a fair hearing. The requirement for submissions to be made in a clearly defined order aims to ensure that each party has a fair opportunity to present their case on the issues that are before the court for determination. A failure by advocates to assist the court in adhering to this requirement is corrosive of that aim. In this case, the reception by the court of properly sequenced submissions was rendered extremely difficult by a concerning tendency on the part of the advocates simply to interrupt each other in an effort to advance their competing submissions. It should go without saying that this mode of advocacy does not assist the court and is to be deprecated.


The appeal was allowed, and sent back for rehearing.


  1. As I have set out above, the transcript of the hearing makes plain that, notwithstanding that the hearing was contested on the central issue of whether a child arrangements order was appropriate and, if so, what arrangements for contact were in T’s best interests, no party ever got, during the hearing, to the stage of making submissions on those key issues before the court. The increasingly formless and fractious nature of the hearing meant that no party made submissions on the need for an order or the appropriate level of contact before the learned Judge gave his judgment on those central issues, nor did the learned Judge invite such submissions. The substantive submissions made by counsel were limited to the procedural question of whether the learned Judge should deal with the final hearing or adjourn it.
  2. In the circumstances, and as conceded by Mr Persson and Ms Topping before this court, the learned Judge heard submissions on the issue of whether to proceed to determine whether to make a final child arrangements order but not on the issue of the merits of a final child arrangements order. Notwithstanding this, in his judgment the learned Judge determined both issues. Accordingly, even if one accepts that the learned Judge was operating within the wide ambit of his procedural discretion in dealing with the final hearing summarily on submissions, he dealt with the matter without hearing submissions on the merits. Even though Ms Cooper had made clear on behalf of the father that the matter was fully contested with respect to child arrangements, and that the father would be seeking more extensive contact in any final order than that then taking place, the father never got to argue that case at the final hearing, whether on submissions or otherwise, before the final order was made.
  3. The consequences of this situation are clear from the learned Judge’s judgment. In examining the judgment delivered by the learned Judge I have, of course, taken into account that it was delivered ex tempore at the end of an extremely busy list and in the context of the considerable burden of other responsibilities that routinely fall to be discharged by a Designated Family Judge at the end of the court day. I note that the learned Judge expressly states in the final paragraph of his judgment that, at “the end of a long and hard day“, he would have wanted to have time to hand down a judgment but that he felt it was important for the parties to know the outcome. One can only have sympathy with that view. Within this context, it is not the job of this court, with the greater time available to it, to undertake an overly fine textual analysis of the learned Judge’s ex tempore judgment.
  4. However, reading the transcript of the hearing and the judgment together, it is clear that the learned Judge was not able to rehearse the father’s substantive arguments on the merits for a greater level of contact in any final order, or indeed the substantive arguments of the Children’s Guardian that there should be no order for contact and an order pursuant to s 91(14) of the Children Act 1989, or the mother’s substantive arguments with respect to the nature and extent of contact moving forward, as he had not heard any of those arguments.
  5. In the foregoing circumstances, I am satisfied that there is force in the father’s complaint that the learned Judge proceeded to make a final child arrangements order without proper consideration of the arguments. Indeed, I am satisfied that, as is clear from the transcript and as conceded by Mr Persson and Ms Topping before this court, the learned Judge heard no substantive submissions on the merits of the father’s case, or indeed the case of the mother or the Children’s Guardian before making final orders. Within this context, the learned Judge moved to make a final child arrangements order in a case that remained contested without hearing submissions on the issues at the heart of the case.
  6. I accept that, in line with the judgment of the Court of Appeal in Re C (Family Proceedings: Case Management), a judge is fully entitled to deal summarily with a final hearing in an appropriate case. However, even where the court determines that it is appropriate to deal with the case in this manner, it is equally clear that in doing so, each party must first have a fair opportunity to put their case to the court before the court moves to make final orders. Within this context, even if he or she elects to determine the final hearing summarily following oral submissions, the judge must be careful to ensure, with the assistance of the advocates, that each party has had a fair opportunity to make their respective cases by way of submission on the issues that the court is required, albeit summarily, finally to decide. Issues that may often include, as in this case, whether to make a final order and if so, which order in the best interests of the child. In this case, such an approach was even more important where, as I have noted, the learned Judge did not have the benefit at the final hearing of final witness statements from the parties, nor a final report from the Children’s Guardian, and in circumstances where the expert report that had been considered by the court prior to the final hearing to be necessary to resolve the proceedings justly was deficient having regard to the terms of the letter of instruction.
  7. Within the foregoing context, I am satisfied that the fact that the father, and indeed the other parties, did not have a proper opportunity to put their case to the court by way of submissions on the question of whether a final child arrangements order should be made and if so, what order was in the best interests of the T, before the court moved to make a final child arrangements order, amounted to a serious procedural irregularity. In the circumstances, I am satisfied that the appeal must be allowed on that ground alone.

An utterly misconceived application

Hi everybody !


I always like when the President opens a judgment with


“1.This is another utterly misconceived application”


Because it lets me know that this one has potential. It is Re SW (no 2) 2018


And Re SW was one of my favourite weird cases (an application in the Court of Protection to have a best interests decision that a woman, SW, should undertake surgery in order to give a bone marrow transplant to her adopted brother. The applicant was the son of SW, asking that the surgery be carried out by husband of SW, also coincidentally a surgeon, also coincidentally who had been stuck off as a surgeon, also coincidentally he also had a friend who would assist him, also coincidentally his friend had also been struck off. Link below.  Oh, they also failed to show that the brother needed the surgery, or that SW actually lacked capacity to agree to it or refuse it.  It is fantastic in every regard)



I dismissed a previous application on 12 April 2017: Re SW [2017] EWCOP 7. Of that application, I said this (para 33):




“As it has been presented to the court, this scarcely coherent application is totally without merit, it is misconceived and it is vexatious. It would be contrary to every principle of how litigation ought to be conducted in the Court of Protection, and every principle of proper case management, to allow this hopelessly defective application to proceed on the forlorn assumption that the son could somehow get his tackle in order and present a revised application which could somehow avoid the fate of its predecessor.”




This time around, SW’s son was applying to the Court of Protection for a best interests decision that the Inland Revenue be prohibited from coming into SW’s home or taking any action against her.




3.The present application was issued by the son on 15 September 2017, supported by his witness statement dated 6 September 2017. P was named as the applicant’s mother, who I shall continue to refer to as SW. The respondent was named as the Commissioners for Revenue and Customs (HMRC), who were described in the application as being “Competent Authority”. The relief sought was, and I quote:




“A Declaration from the Court, under its inherent jurisdiction, that it shall be unlawful for the Respondent to effect forced entry of the property of P or to restrict P’s liberty of movement without permission from the Court of Protection.”

4.The son’s witness statement and the various exhibits attached to it make clear that the complaint arises out of the execution on 29 September 2016 by officers of HMRC of search warrants under section 8 of the Police and Criminal Evidence Act 1984 authorising the search of two properties owned by SW and in one of which SW was living at the time. The searches were in connection with suspected VAT frauds relating to companies of which the son and his father, Dr Waghorn, were directors. The son was subsequently arrested on 27 October 2016, according to a witness statement of the arresting officer “on suspicion of submitting false documentation to HMRC in order to reclaim VAT repayments contrary to s 72(1) of the Value Added Tax Act 1994 and the subsequent money laundering offences under sections 327 and 329 of the Proceeds of Crime Act 2002.”



One might cynically think that this application benefits the son and his father more than SW, since they are the people under investigation for VAT fraud, and that they are just using the mother/wife SW as a shield or device to escape prosecution for VAT fraud. You dreadful cynic.



5.The son’s witness statement is explicit that he was not present at the events on 29 September 2016. Having set out extracts from various statements which, he says, were “given as evidence in prosecution at the Crown Court”, and exhibited documents relating to a complaint he made to HMRC and to a complaint made by Dr Waghorn to the Independent Police Complaints Commission in relation to the actions of HMRC, the son concluded his witness statement as follows:




“I am unaware that the Authority has obtained any authorisation, either urgent or standard, from the Court of Protection to control and manage the property of P nor to restrict P’s liberty of movement.”

6.On 22 September 2017 District Judge S Jackson struck out the application. The District Judge’s order read as follows:




“Upon considering an application for an order under the inherent jurisdiction of the Court of Protection and upon the court not having an inherent jurisdiction and upon the court considering that the application and statement in support is incomprehensible and therefore without merit.




  1. Application struck out


  1. This order was made without a hearing. Any person affected by it may apply (on form COP9), within 21 days of the date on which the order was served, to have the order set aside, pursuant to rule 89 of the Court of Protection Rules 2007.”

7.By an application dated 1 October 2017 and received by the court on 3 October 2017, the son sought an order that the District Judge’s order be set aside and that the court grant a declaration in the terms previously sought. His grounds were as follows:




“1) Parliament has granted jurisdiction to the Court of Protection in Deprivation of Liberty cases by introducing into the Mental Capacity Act 2005 safeguards through the Mental Health Act 2007 (which received Royal assent in July 2007), in order that those who lack capacity have the protection of law which will comply with Article 5(1) and 5(4) of the European Convention of Human Rights (“ECHR”).


2) P’s determination of her protected rights is envisaged in Article 6(1) of the ECHR and guaranteed in the EU Charter of Fundamental Rights (Article 47 – Right to an effective remedy and to a fair trial).”


He submitted no further evidence.



The President was able to deal with the appeal fairly simply




10.I can deal with the matter briefly. I agree entirely with both the decision and the reasoning of the District Judge. I add three points.



11.First, a ‘best interests court’, in which I include the Court of Protection, the Family Court and the Family Division of the High Court of Justice, has no power to regulate or adjudicate upon the decision of a public authority exercising its statutory and other powers: see, generally, A v Liverpool City Council and Another [1982] AC 363, (1981) 2 FLR 222, and, specifically in relation to the Court of Protection, Re MN (Adult) [2015] EWCA Civ 411, [2015] COPLR 505, appeal dismissed N v ACCG and Others [2017] UKSC 22, [2017] COPLR 200. But that is precisely what the son is seeking to persuade the Court of Protection to do here. He is seeking an order, albeit in declaratory form, to prevent HMRC exercising its powers “without permission from the Court of Protection.” The appropriate remedy, if one is needed, is by application to the criminal court, in a case such as this, or to the Administrative Court. I make clear that I am not to be understood as suggesting that, in the circumstances, any application the son might make to either court stands the slightest prospect of success; my view, for what it is worth, is that it would not.



12.Second, there is, in any event, no evidence before the court to demonstrate SW’s incapacity, which alone can give the Court of Protection jurisdiction.



13.Third, on the basis of the evidence which the son has put before the court, there is simply nothing to support any contention that HMCR has acted unlawfully or that it either has in the past done, or that it threatens in future to do, any of the things apparently alleged by the son: that is, to effect forced entry to SW’s property, to control and manage her property, or to restrict her liberty of movement. The son has placed before the court a number of witness statements prepared for the purpose of the criminal proceedings by officers of HMRC. He has not sought to challenge any of the facts asserted by those officers – indeed, he seeks to rely upon parts of their witness statements. And since, as I have said, he was not present, he is in any event hardly in a position to gainsay what they assert. The simple fact is that there is nothing in any of this material which even begins to suggest that what the son is asserting is even arguably right. On the contrary, what the material demonstrates is the seeming propriety with which HMRC obtained and executed the search warrants, the very proper concern which the HMRC officers involved had for the potential impact on SW of what was going on around her while the relevant search warrant was being executed, and the very proper steps which they appropriately took to protect and safeguard her welfare.



14.The son’s application as it was presented to the District Judge was, in my judgment, totally without merit, misconceived and vexatious. His application under Rule 89 is equally devoid of merit. It must be dismissed, with the consequence that the District Judge’s order striking out the original application remains in place.


Local Authority unlawfully caring for child for four years (section 20 abuse)


Herefordshire Council v AB 2018


This is the case referred to in my earlier blog posts, and in this news story in the Guardian


The Guardian piece is not overselling it.


  This judgment concerns two unconnected young people who have been accommodated pursuant to the provisions of The Children Act 1989, section 20 (the 1989 Act) for a very considerable period of time.  Their treatment by Herefordshire Council (‘the local authority’) represents two of the most egregious abuses of section 20 accommodation it has yet been my misfortune to encounter as a judge.

May as well open with the key bit


In the case of one of the 42 children accommodated by the local authority referred to above, the mother withdrew her consent for her child to be accommodated in 2013.  The local authority not only did not return the child to her mother’s care, it effectively did nothing in terms of care planning for the child.  Thus, for four years the local authority unlawfully had care of this child. 


That wasn’t the only example.


On 28 March 2010 CD’s mother gave formal written notice to the council of the withdrawal of her consent to CD being accommodated.  In response, the local authority (1) did not return CD to her care, but (2) advised her to seek legal advice if she wished CD to be returned to her care.  The director has acknowledged that this was a misuse of the local authority’s powers and it should have made immediate arrangements to return CD to his mother’s care.  It is, however, far worse than being a misuse of powers.  The local authority acted unlawfully and unlawfully retained care of CD until at least February 2013 when it appears from the chronology that the mother was engaging with the local authority and agreeing to CD remaining in care. 


The Judge, Keehan J, made orders that the Director of Children’s Services file statements explaining what had gone wrong with these two children and to set out all of the children that were in section 20 accommodation with details.


  1. I required the Director of Children’s Services to file and serve (i) a statement explaining the events and lack of planning in respect of CD and GH, and (ii) a statement detailing the circumstances of each and every child accommodated by this local authority pursuant to the provisions of section 20.
  2. The latter document made very grim reading.  Excepting CD, GH and three other children who are now the subject of public law proceedings, the local authority is accommodating 42 children.  Of these 42 children, the local authority have now recognised that 14 have wrongly and abusively been the subject of section 20 accommodation for a wholly inappropriate lengthy period of time and/or should have been the subject of legal planning meetings and/or care proceedings at a much earlier time.


My mathematical skills are not perfect, but that’s about a third of the children that they were accommodating that were being wrongly and abusively accommodated.




  1. Mr Chris Baird was appointed the permanent Director for Children’s Wellbeing for this local authority (otherwise known as the Director of Children’s Services and hereafter referred to the as ‘the Director’) on 10 November 2017.  It is right that I record at an early stage in the judgment that he (a) has readily and timeously complied with all directions made by this court for the filing and serving of statements and letters (b) has been completely frank and open about the past failings of this local authority (c) has provided a ready explanation of the steps he has taken or will take to remedy past mistakes, and (d) has chosen to attend court hearings in person.
  2. Later in this judgment, I will be roundly critical of egregious failings of this local authority in relation to CD and GH but also in relation to the 14 children to whom I have referred above.  Nevertheless, it is important for me to recognise and acknowledge that Mr Baird and the new senior management team at this local authority have taken and will take steps to ensure that such dreadful failures in the care of and planning for children and young people in its care will not occur in the future.  I have every confidence in the sincerity and commitment of this director to improve very significantly the planning for and provision of services to the children and young people for whom it is responsible.



Very decent of Mr Baird not to throw his predecessor under the bus.


(I also note with pleasure the use of the word ‘timeously’ which I was naming to a friend as one of my favourite words just last week)


  1. In February 2017, I sent a letter to the Director of Children’s Services of each of the 22 local authorities on the Midlands circuit with the consent and approval of all of the circuits’ designated family judges and of the chairs of the circuits’ ten local family justice boards.  One of the principal topics addressed was the use of section 20 accommodation.  I offered the following guidance:

“The use of section 20 by a local authority to provide accommodation to children and young people is perfectly legitimate if deployed in appropriate circumstances.  It is a useful tool available to local authorities.  I offer the following as examples of the appropriate use of section 20 but I emphasise these are examples only and not an exhaustive list: (a) a young person where his or her parents have requested their child’s accommodation because of behavioural problems and where the parents and social care are working co-operatively together to resolve the issues and to secure a return home in early course; (b) children or young people where the parent or parents have suffered an unexpected domestic crisis and require support from social care to accommodate the children or young people for a short period of time; (c) an unaccompanied asylum-seeking child or young person requires accommodation in circumstances where there are no grounds to believe the threshold criteria of section 31 of the Children Act 1989 are satisfied; (d) the children or young people who suffer from a medical condition or disability and the parent or parents seek respite care for a short period of time; or (e) a shared care arrangement between the family and local authority where the threshold of section 31 care is not met yet, where supported, this intensive level is needed periodically throughout a childhood or part of a childhood. 

“In all of the foregoing, it is likely the threshold criteria of section 31 of the Children Act 1989 are not or will not be satisfied and/or it would be either disproportionate or unnecessary to issue public law proceedings.  It is wholly inappropriate and an abuse of section 20 to accommodate children or young people as an alternative to the issue of public law proceedings or to provide accommodation and to delay the issue of public law proceedings.  Where children and young people who are believed to be at risk of suffering significant harm are removed from the care of their parent or parents, whether under a police protection and emergency protection order or by consent pursuant to section 20, it is imperative that care proceedings are issued without any delay.”


  1. This guidance, which was given by me in my role as the Family Division Liaison Judge of  the Midland Circuit, has neither legal effect nor greater significance than, as was intended to be, helpful advice to the respective directors, their senior staff, their social workers and the local authority’s child care solicitors. 



We shall see whether the Supreme Court agree with that formulation – they might well do.


CD was accommodated on 14th October 2009.


On 28 March 2010, the mother wrote to the local authority formally to withdraw her consent to CD remaining accommodated by the local authority pursuant to the provisions of section 20.  The local authority did not act on this withdrawal of consent and, instead, advised the mother to seek legal advice if they wished CD to be returned to their care.  I shall return to this issue later in the judgment. 



To make it absolutely plain, once mother does that, the LA have to return the child to her care or obtain an order from the Court authorising them not to do so.  They can’t just pretend she didn’t say it.  It is particularly rich to suggest to the mother that she seeks legal advice, when the LA obviously weren’t doing that themselves, or at least weren’t following it.


If the LA had asked me at that point what the legal status of the child was, I would have sent them this image


And, if you want to make provision for the damages claim that’s about to follow, you may want to locate “Treasure Island”


  1. A further LAC review was held on 29 April 2010.  That review recommended that the local authority should take steps to address CD’s legal security and permanence.  A legal planning meeting was held on 4 August 2010.  The legal advice given was to issue care proceedings to gain greater clarity around the parties’ views and timescales to secure permanence for CD as early as possible and for CD to have a voice in the proceedings through his guardian and solicitor.  Nothing was done.
  2. A further LAC review held on 18 November 2010, during which CD’s independent reviewing officer raised concerns about the delay in achieving permanence for CD and reiterated that the legal advice given needed to be followed.  Nothing was done.
  3. Two further legal planning meetings were held on 16 February 2011 and, following the completion of an updated assessment of CD’s needs again, on 30 March 2011, there was agreement at that latter meeting to initiate care proceedings.  At a further LAC review on 6 April 2011, no further recommendations were made as a clear decision had been made on 30 March. 
  4. On 5 May 2011, the decision to initiate care proceedings was retracted by the then Assistant Director of Children’s Services who stated she was not, “agreeing to issuing proceedings and considered that seeking a care order would not make a significant difference to CD’s care given he had been accommodated for some time”. 
  5. This decision was fundamentally misconceived and fundamentally wrong.
  1. The next LAC review was held on 28 February 2013 where it was agreed that CD should remain looked after until his 18th birthday.  There had been a query about his legal status.  The decision was made that he remained accommodated pursuant to section 20, noting that CD’s mother was engaging well with the arrangements.  A further LAC review was held on 16 July 2013.  No changes were recommended to CD’s care plan.  The same approach was taken at the next LAC review on 9 December 2013 but there were discussions about the possibility of CD’s foster carers applying for a special guardianship order. 


There are a string of further LAC reviews, all thinking that the section 20 was okay  (basing that presumably on the Feb 2013 view that “Mother was engaging well with the arrangements”), then


There was a further LAC review on 3 April 2017.  On 5 September 2017, legal advice was sought at a legal gateway meeting.  It was recognised that CD had been accommodated under section 20 since 2009.  Somewhat surprisingly, the section 20 accommodation arrangement was deemed appropriate.  Thereafter, the decision was made to issue these public law proceedings. 


GH was accommodated on 9th July 2008 – the LA relying on the purported consent given by his mother, who was fourteen.


  1. At a LAC review held on 4 March 2014, there was a change of plan by the local authority.  The local authority decided to take GH’s case to a legal planning meeting.
  1. It was decided at the legal planning meeting that care proceedings should be instigated. The care plan of the same date stated that the local authority is considering the need to obtain a full care order. Nothing, however, was done

Well, at least they decided after nearly six years to issue care proceedings. Job done.


  1. In June 2016 a comprehensive review was undertaken of all section 20 accommodation cases by this local authority.  A LAC review was then held in respect of GH on 8 December 2016 where it was reported that legal advice regarding the continuing use of section 20 had been sought.  The decision was made that (i) an application for a care order needed to be initiated, and (ii) the local authority needed to gain parental responsibility due to GH’s complex health needs and the fact that he might need to move to a new placement in the near future. Nothing was done.


Okay, so having decided after six years that they needed to do something, they didn’t do anything for a further two years, then reviewed it and realised that they needed to do something. Then did nothing.


A further legal gateway meeting took place in March 2017.  The case was escalated by the independent reviewing officer to the Children with Disabilities Team at regular intervals between May and July 2017.  The independent reviewing officer then raised the matter with the Head of Service for Safeguarding and Review, who in turn escalated it to the relevant Head of Service in July.  It was not until 22 September 2017 that this application for a care order was in fact made. 



Oh boy.


  1. I have never before encountered two cases where a local authority has so seriously and serially failed to address the needs of the children in its care and so seriously misused, indeed abused, the provisions of section 20 of the Children Act 1989.  By happenchance alone, as it appears to me, both children have remained in the care of quite extraordinary and superlative carers who have met their respective needs extremely well.  I offer the warmest of thanks and congratulations to CD’s foster carers and to GH’s foster carer.  For periods of at least eight years they have each cared for the two boys without any parental responsibility for either of them.  Both sets of foster carers have in many ways been failed by this local authority, but their commitment to CD and GH respectively has been undaunted and unfailing. 
  2. Nevertheless, serious and long lasting damage has resulted.  Contact between CD and his mother had never properly been considered nor promoted.  The mother is not without blame on this issue.  It led however to an extremely unfortunate event recently where the mother and CD inadvertently came across each other in public and the mother did not recognise her son.  CD was dramatically affected.  What child could reasonably cope with their mother or father not recognising them?
  3. In respect of GH, his mother was so young when he was born that she needed the greatest possible advice, support and consideration.  She was not given any of the foregoing.  The local authority, as referred to above, did not even consider whether she was capable of consenting to GH’s accommodation.  Thereafter she was frankly side-lined.  As she grew older and matured, little, if any, consideration was given as to whether she could then care for GH or whether she could and should play a greater role in his life.  I have a very real sense that her role as his mother, albeit, or perhaps because, she was so very young, was simply overlooked and ignored.  Fortunately, with the issuing of these proceedings it has been possible to secure the placement of both children.  In respect of CD with his current carers as special guardians.  In respect of GH, to secure his placement with ZA but then to consider where his interests lie in a future long-term placement.  It has also enabled CD’s foster carers to be invested with parental responsibility for him.
  4. I have been seriously critical of the actions and inactions of this local authority.  I do not, despite the explanations offered, understand how or why this local authority failed these two children so very badly.  Nevertheless, I am satisfied that the appointment of a new director and a new management team, who are alive to the past failings in these and in other cases, will lead to an improved service for the children and young people who are now or hence forward will be placed in the care of this local authority.



The Local Authority argued that they should not be named in this judgment.  Given that the title of the case is Herefordshire Council v AB 2018,  how do you think that application went?



  1. I have indicated to the parties at earlier hearings that I was minded to give a public judgment in respect of both cases.  It was submitted on behalf of the local authority that I should anonymise the names of all parties, including the local authority, because the adverse publicity would be damaging to the council.  I subsequently received a letter from the director bringing to my attention Hereford’s struggle to recruit solicitors and social workers and that “adverse publicity for the local authority does count in the minds of some prospective employees and it would be unfortunate if our historic failings were to turn people away.”  The contents of this letter, which had been disclosed to all of the other parties, caused me to consider once more whether it was necessary for me to name the local authority in this case.  After long and careful reflection I have concluded that it is.  I decided that a public judgment which named the local authority was necessary for the following reasons: (a) the President has repeatedly emphasised the importance of transparency and openness in the conduct of cases in the Family Division and in the Family Court; (b) the public have a real and legitimate interest in knowing what public bodies do, or, as in these cases, do not do in their name and on their behalf; (c) the failure to plan and take action in both of these cases is extremely serious.  There were repeated flagrant breaches of guidance from the judges of the division and of standard good practice; (d) it is evident that this case emanates from the Midlands Circuit.  Not to identify the relevant local authority would unfairly run the risk of other authorities on this circuit coming under suspicion; and (e) the President and the judges of the division have always previously taken a robust approach on the identification of local authorities, experts and professionals whose approach or working practices are found to be below an acceptable standard. 
  2. The director is understandably concerned about the potential adverse consequences of a public judgment.  I fully understand those concerns, but, for the reasons I have given above, I do not consider these concerns should lead me to anonymise the local authority.  In my view these concerns are addressed, or at least ameliorated, by the court making it clear, as I do in paragraphs 11 and 12 above and in the paragraphs below, that the criticisms set out in this judgment relate to the past actions of this local authority and that there is now a new director and leadership team in place who are committed to change and to improve the care and provision of services to the children and young people in its care.


To be fair, even as someone who practised law for ten years in the Midlands, I had no idea that Hereford was considered to be in the Midlands circuit, so it wouldn’t have been on my suspect list had the Court just said “a Local Authority in the Midlands”

Geography is not my strong suit.  I have yet to establish what my strong suit is, other than snark.


Hereford will now be waiting to see what the Supreme Court decide in Hackney about human rights claims arising from section 20 misuse.  These are very bad ones.  If HRA claims are still going after Hackney, expect this to break all records.

DAM (I wish I was your lover)



An appeal about the structure of a judgment and whether it was sufficiently deficient to warrant overturning the decision (I’m sure that combination of italicised words is already making David Burrows writhe in agony…. )


Re DAM (Children) 2018


(There are obvious alternative jokes about the way the case name sounds if you read it aloud, but you know me and pop music, I wasn’t going to be able to resist a Sophie B Hawkins reference)


But obviously, beware the eyes that paralyze



The decision being appealed was from HHJ Tolson QC.   The lead Judge in the Court of Appeal was Jackson LJ .   (If you ARE being appealed about the manner in which you construct your judgment, you probably would not elect Jackson LJ to be critiquing your judgment, in much the same way as you would not want Rodin turning up to your pottery class to tell you if your bodged-up clay ashtray is any good)



5.Judges hearing care cases in the Family Court are engaged in one of the most difficult of all judicial tasks. The decisions are of huge significance for children and their families. The evidence is often difficult and distressing, and the level of emotion high. Achieving good case management and timely decision-making, not just for the children in the individual case but for all the children who are awaiting decisions, is a demanding challenge for the specialist judges who undertake this work.



6.In every care case, the Children Act 1989 and the Human Rights Act 1998 require the court to address a series of questions. What are the facts? Has the threshold been crossed? If so, what order is in the child’s best interests? Is that outcome necessary and proportionate to the problem? There is much authority from the appeal courts about each of these questions but at its simplest every valid decision will answer them.



7.It is in the judgment that the judge’s reasoning is found. There is no one correct form of judgment. Every judge has his or her own means of expression. Different cases may call for different types of judgment. Some judgments will be given at the time and others will be reserved. What is necessary in every case is that the judgment should be adequately reasoned: Re B-S [2013] EWCA Civ 1146 at [46]. That is a matter of substance, not of structure or form: Re R [2014] EWCA Civ 1625 at [18]. The judgment must enable the reader, and above all the family itself, to know that the judge asked and answered the right questions.



8.This is not to say that the structure of a judgment is irrelevant. A judgment that lacks structure or is structured in a confusing way makes the judge’s reasoning harder to follow and may raise the possibility that the process by which the decision was reached was faulty. Inevitably, that increases the possibility of an appeal.



There was an educational psychologist instructed in the case who seems to have had an idiosyncratic approach to her role


Dr Rothermel’s approach: – The judge described this as the most bizarre aspect of the matter. Having filed her lengthy report, she was directed on 18 July to provide copies of her notes and correspondence. She said that would take six hours and sought payment for it, having already exceeded her budget. She was then directed to bring the documents to court on the first day of the hearing. They amounted to more than a hundred pages of, in particular, email exchanges with the mother. The other parties made extensive criticisms of Dr Rothermel, and the judge summarised the material as revealing her to be an expert who had strayed far beyond her limited brief, advising the mother on the presentation of her case, gathering evidence for her and, when giving evidence, being an advocate for home education and for the mother. She disposed of the key elements of her instruction in what the judge described as a few bland lines.




36.The grounds of appeal included the contention that the judge was wrong to reject the evidence of Dr Rothermel as worthless in its entirety, and to conclude that the children had not been educated at home. This argument was not developed by Mr Twomey. In my view, the judge’s verdict on Dr Rothermel’s contribution was fully justified, and his finding of fact about the children’s lack of education at home could not be disturbed in this court.


Fundamentally, the appeal was based on the assertion that the trial Judge had wrongly approached the case as one that was decided on threshold, that having found threshold met he swiftly ruled mother out and announced his decision on orders and AFTER that, dealt with welfare matters including the welfare checklist and briefly.



33.Mr Twomey QC and Mr Boyd start their submissions with an analysis of the way the judge structured his judgment as showing that he had fallen into substantive error. They make these undeniable observations:





(1) The judge stated that the key to the case lay in the threshold criteria. [48]


(2) Having found the threshold to be made out [61], he immediately eliminated the mother [62] and announced his conclusion, stating that there was no other realistic option but foster care for D and A [63, 65].


(3) He did not carry out any welfare assessment, by balancing the advantages and disadvantages of placements at home or in foster care. He did not refer to the welfare checklist until [73], long after he had stated his decisions, and in doing so, he stated, “I check my conclusions against the welfare checklist.”


(4) When identifying factors in the welfare checklist, he did not mention (g), the powers of the court, such as an interim or final care order with placement at home, or injunctions or undertakings to ensure schooling and medical care, perhaps as conditions to a supervision order under Schedules 2 or 3.


(5) He made no proportionality crosscheck.

34.As a matter of law, Mr Twomey submits that the use of the welfare checklist as an afterthought is not compliant with s.1(4), which requires the court to have regard to the matters in s.1(3) when it “is considering” whether to make a care order. It must, he argues, be considered before a decision is reached, not afterwards. He also draws attention to the encouragement given by Baroness Hale to judges to address each of the factors in the welfare checklist in any difficult or finely balanced case so as to ensure that no particular feature of the case is given more weight than it should properly bear: Re G (Children) [2006] UKHL 43 at [40].



35.In an ambitious submission, Mr Twomey argued that the court was not entitled to make a care order separating the children from their mother without being satisfied that “nothing else will do”.


[For those who are not fluent in Judge, ‘ambitious’ here is not a compliment]


The Court of Appeal don’t explicitly mention Re B 2013, and the words of Lord Neuberger, which are what sets that particular hare running (in my respectful view)



  1. It appears to me that, given that the Judge concluded that the section 31(2) threshold was crossed, he should only have made a care order if he had been satisfied that it was necessary to do so in order to protect the interests of the child. By “necessary”, I mean, to use Lady Hale’s phrase in para 198, “where nothing else will do”. I consider that this conclusion is clear under the 1989 Act, interpreted in the absence of the Convention, but it is put beyond doubt by article 8. The conclusion is also consistent with UNCRC.


  1. It seems to me to be inherent in section 1(1) that a care order should be a last resort, because the interests of a child would self-evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests. That is reinforced by the requirement in section 1 (3)(g) that the court must consider all options, which carries with it the clear implication that the most extreme option should only be adopted if others would not be in her interests. As to article 8, the Strasbourg court decisions cited by Lady Hale in paras 195-198 make it clear that such an order can only be made in “exceptional circumstances”, and that it could only be justified by “overriding requirements pertaining to the child’s welfare”, or, putting the same point in slightly different words, “by the overriding necessity of the interests of the child”. I consider that this is the same as the domestic test (as is evidenced by the remarks of Hale LJ in Re C and B [2001] 1 FLR 611, para 34 quoted by Lady Hale in para 198 above), but it is unnecessary to explore that point further


(Now of course in Re B, the care plan was adoption, and it might well be that those passages are intended to be read as ‘a care order where the care plan is adoption’, but the bare language is “should only have made a care order if satisfied that it was necessary to do so in order to protect the interests of the child and by necessary I mean ‘where nothing else will do’ “ )


I think there’s at least an argument to be had on that aspect. I have seen a Parker J case in which it was posited that this formulation applies to interim care orders as well, which I think goes too far.


The Court of Appeal don’t agree




(5) I reject the argument that a court considering whether to make a care order has to be satisfied that “nothing else will do”. A care order is a serious order that can only be made where the facts justify it, where it is in the child’s interests, and where it is necessary and proportionate. But the aphorism “nothing else will do” (which, as has been said, is not a substitute for a proper welfare evaluation and proportionality check) applies only to cases involving a plan for adoption. That is clear from the case in which it originated, In re M (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, which concerned an application for a care order with a care plan for adoption. It is clear, where it is not explicit, that all the justices were addressing a situation involving the severance of the parental relationship altogether, and not one involving physical separation under a care order, where the parent retains parental responsibility. That is confirmed by the summary given by the President in Re B-S:


“22. The language used in Re M is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are “a very extreme thing, a last resort”, only to be made where “nothing else will do”, where “no other course [is] possible in [the child’s] interests”, they are “the most extreme option”, a “last resort – when all else fails”, to be made “only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do”: see Re M paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215.” [my emphasis]


I may be utterly wrong about the impact of Lord Neuberger’s words, but it is a shame that they weren’t considered explicitly, because that’s what gives rise to the suggestion that any order that permanently separates a child from birth parents has to be measured against that necessity and ‘nothing else will do’ yardstick.



On the other matters, the Court of Appeal decision is as follows:-


41.Despite the neat way in which the mother’s case has been presented, my clear conclusion is that the judge’s findings of fact, set out at paragraph 29 above, amply satisfy the threshold for making public law orders and adequately underpin the welfare decision. Taking full account of the matters that appear below, it has not been shown that the judge was wrong to conclude that the mother’s parenting falls so far short of what the children need, and that her approach is so ingrained and unchangeable, that care orders were necessary. He had an excellent opportunity to assess the mother’s personality and behaviour during the course of the proceedings. Nor is it irrelevant that there is now no challenge to the judge’s decision that M, who had grown up for 4½ years in her mother’s care, should remain with her father. The home circumstances that justified that decision were shared by the older children.



42.Dealing specifically with the criticisms of the judge’s approach, set out in paragraph 33 above:




(1) It was unwise of the judge to characterise the decision as one that turned on the threshold findings. The threshold is concerned only with harm, while the welfare checklist addresses a much wider range of factors. There are cases involving very serious abuse where the threshold definitively determines the outcome, but this was not one of them. Nonetheless, despite the way the judge expressed himself, his decision did not in fact rest on the threshold alone, but on all the welfare considerations mentioned in the judgment.


(2) The term “realistic options”, deriving from cases such as Re B-S [2013] EWCA Civ 1146, ensures that time is not wasted on outcomes that are merely theoretical, so that attention can be focused on the genuine possibilities. In this case, the realistic options for D and A were placement at home or placement in foster care. The fact that one was discarded in favour of the other made it a rejected option, not an unrealistic one, and the judgment, read as a whole, shows that this is how the judge in fact proceeded.


(3) In the almost 30 years since it was devised, the ‘welfare checklist’ has stood the test of time and its value to decision-makers, as described in Re G, cannot be overstated. It is obligatory to have regard to its contents when considering what order should be made. That obligation will be discharged if it is evident that in substance all the relevant, significant welfare factors have been taken into account. I do not accept that there is an obligation to articulate a checklist analysis before announcing a decision. However, to omit any reference to the substance of the checklist, or to relegate the exercise until after the court has stated its conclusion, carries risks of the kind seen in this appeal.


(4) The absence of a point in the judgment where the judge can be seen to have drawn together the welfare factors for comparative evaluation is an undoubted weakness. However, analysis of the judgment as a whole shows that the judge did evaluate all the significant welfare factors, although not in a methodical order that would have made his reasoning easier to appreciate.



(6) To continue, I do not accept Mr Twomey’s submission that the judge did not consider the powers of the court, as required by checklist factor (g). He dealt with that matter squarely at paragraph 51 (see 31 above).


(7) I accept that the judge did not explicitly return to the issue of proportionality, but he clearly had it in mind from his self-direction and in my view his decision is not undermined by that omission.

43.I therefore conclude that the submission that the judge’s decision was wrong must fail.



The Court of Appeal did, it seems to me, consider that there were failings in the structure and approach of the judgment; but these were not such as to fatally flaw the judgment. A considered reading of the judgment answered all of the questions posited in the opening remarks in the appeal judgment and this piece.






44.I would also reject the submission that the decision was unjust because the form of the judgment amounted to a serious procedural irregularity. The judge gave a substantial judgment that, on close examination, adequately reasons his decision.



45.However, I am also in no doubt that permission to appeal was rightly granted. Had the judgment proceeded simply and methodically through the stages of the decision-making process, this might have been avoided. It should not be necessary for an appeal court to undertake a laborious explanatory exercise of the kind contained in this judgment. That can only affect the parties’ confidence in the decision. In the meantime, this family has been left in a state of uncertainty for a further four months and the costs of the appeal to the public purse have, we were told, amounted to some £37,000.

Radical mountaineering in Leicestershire

A family with their three adult children and three minor children were stopped at Harwich port, we don’t know the reasons  (but can probably guess).  The father’s home was searched as a result and some significant things found as a result.

(The LA involved is not named to assist in anonymity, so please don’t assume that it is Leicester or Leicestershire because of the title of the post. You will see why I gave it that title later, be patient!)


The family’s version of events was that all of them were travelling to Holland, with the intention of visiting a children’s play park for the day, to sleep in their rented car overnight and travel back the next day.  That made the authorities query why it was that the father had been to a camping store the day before, spending six hundred pounds.  This was not a wealthy family.

One of the adult siblings gave evidence that the camping and outdoors equipment was for a later trip planned to Scotland, where they would be climbing mountains.


  1. Then there is B’s evidence about the equipment. She told me that the planned trip was to Scotland at Easter. The father had talked about his pleasure in going to Aviemore as a teenager. She appeared never to have heard of the Cairngorms when she was asked but perhaps that is not absolutely fatal to her case. More importantly, Aviemore is a ski resort, is at elevation, and there was likely to be still snow up there. To suggest that this family planned to sleep in a tent in potentially harsh weather conditions is absolutely fanciful. The father has diabetes and other health conditions. He needs to relieve himself frequently. B told me it was planned that she and the other children would go for long walks and climb a mountain. There was no suggestion as to what was going to happen to the father, and how he was going to keep up, or how the younger children would cope if they were tired or wet or cold. I may be wrong in having detected an inconsistency in B’s evidence as to whether or not they were intending to sleep in different camp sites taking their equipment with them, or whether they were going to stay at the same (unidentified) campsite every night and go for walks during the day. It is inconceivable that the father either would have subjected himself to such conditions or that he would have been left shivering in a tent whilst the family went on without him.
  2. I asked B whether she had ever climbed a mountain and she said she thought she had in Wales. She then said she had climbed one in Leicester recently. It had been very high and very steep. Leicester is an extremely flat part of the country. It is obvious to me that B was making up her evidence as she went along and I am quite satisfied that the Aviemore trip was a smokescreen. The family cannot even agree for when it was planned.
  3. I am satisfied that I have been told a series of untruths by the adults about the background to the Holland trip, what was intended, and the surrounding circumstances, and that in itself is probably one of the most important features of my findings


Indeed, Leicestershire is not known for its  mountains. Taking my lead from the Hugh Grant movie, I have established that there is one summit in Leicestershire which squeaks into being classified as a mountain, being (just) over 2000 meters in height.  Preparation for the Cairgorms it is not.


Perhaps the family were misinformed


Humphrey Bogus, sorry Bogart


Re Y children (findings as to radicalisation) 2018


  1. Radicalisation cases have only come to the forefront of the court’s attention during the last two and a half years, particularly since the escalation of troubles in the Middle East with the Syrian conflict and the rise of the Islamic State, called as well by various other different names. Radicalisation is not new.
  2. I stress that the courts see cases where religion is said to be harmfully impressed on children, or provides a harmful environment or lifestyle for them, as in cases of other religions as well. I have professional experience of childcare litigation concerning fundamentalist Christian sects and certain Hindu and Jewish groups, for example. I recognise also that the UK has not been immune from sectarian Christian violence both historically and recently.
  3. I repeat, as I have said to the parties, that not only do I realise how sensitive is this case, but how difficult are issues which concern freedom of thought, religion and expression; and personal autonomy. At the same time I have to look at s.31 of the Children Act in respect of care proceedings now presently in being in respect of the three index children. This case is about significant harm or the risk thereof and child welfare in respect of young people who cannot truly decide on their political and religious beliefs, and crucially, activities stemming therefrom.


The Judge heard evidence as to some of the matters found within the families purchases/packing, which was compared to the instruction list prepared by Isis and circulated to people who were intending to join up with them in Syria. In a peculiar set of circumstances, possession of this list is a criminal offence (don’t google the list, it will almost certainly flag you up with people / agencies you don’t want to be flagged up with), so even the Judge having temporary possession of it was potentially placing her in breach of the criminal law.


  1. There are a number of other matters which give rise to concern. They had an itinerary with them which Mr. Poole submits is written in stilted and unusual terms. It is not the kind of list of activities that one might expect to see, and has detail, particularly in relation to timings, which seems, objectively, unnecessary for this sort of trip. It is suggested that this is a kind of decoy document, intended to distract the authorities from the real purpose and to support the case that this was a weekend jaunt. Isis documentation online giving guidance about a planned journey to Syria via northern Europe suggests that such documentation might be useful and also suggests obtaining return tickets, so the existence of returns does not help. The father does not have very much money. The passports had been obtained in contemplation of this trip many months before, costing over £200. Yet the journey had not been booked. There are various other expenses, such as the ferry, which cost over £400. The suggestion is that this was a very unusually expensive trip to make for what was going to be just a day and a morning in Holland, for the purposes of a trip to the play park. The necessity or desirability of visiting that venue has not really been established.
  2. Further the father was unable to give a convincing reason for the presence of a Turkish phrase book in the property since the family had never been to Turkey. In the father’s house there was found a list signed with the signature of R and there was another list obtained made by B, headed “Things to get”. The day before the trip was made the father went to two branches of a camping shop, one in Area T and one in Area S, and spent over £600 on equipment. That equipment has considerable correspondence with a “suggested equipment list” in another document called “Hijrah (emigration) to the Islamic State”, emanating from supporters of Islamic State which is to be found online, the possession of which is a criminal offence. I have been given a copy of that document in the hope that I am not transgressing by its being in my possession. I have tried to protect the parties and they have accepted this by ensuring that the document’s copies are numbered and are retained, will be returned, and are viewed only within the courtroom.



For the same reasons, the Court has to be careful in stipulating the commonalities between the family’s camping shopping/packing for Holland and the Isis list.

The father was a member of a prescribed organisation, ALM and had involved the children in their activities

  1. I am satisfied on all the evidence that the father is closely associated with ALM. I accept that he was not charged along with those recently convicted. I accept that there is no evidence that he has spoken or written in public on its behalf. However he has supported it online, and it has a significant online presence which I accept is important for the promotion of its ideas. I do not know whether he is a member, I do not know whether one can be a member of an organisation such as ALM, I doubt very much whether it has a list of members, or whether it has a joining fee or anything of that kind. Z told me that the father is well known to the membership. He is not part of the management or governance insofar as there is one – the ‘inner echelons’ as it was termed in the hearing- and, therefore, not one of the decision makers, but he is intimately known within and loosely part of the organisation.
  2. Sub-question (b) is whether ALM is a proscribed organisation, which it is accepted it is.
  3. The next sub-question is “(c) Did the father take the children to inappropriate ALM demonstrations?” There were two particular demonstrations. He took J (then aged 9) and F (then aged 7) to one in 2009 in London attended by HA. The second was a demonstration outside the Pakistani Embassy after the Pakistan Army had become involved with students in “The Red Mosque” incident. I have seen photographs of the father standing next to HA, outside the Embassy with F and L. The two boys were holding a placard of which the father said he was not able to tell me the origin, which refers to the Pakistan Army as, essentially, “the devil”. There are other placards next to the boys. I note one, relevant to another issue, supporting the introduction of Sharia law for Pakistan, because, the father told me, the students in the Red Mosque had called for Sharia law in Pakistan.
  4. I recognise that some people take children on political demonstrations (although not usually to events where violence might be predicted) and persuade their children to carry placards. Sometimes children are too young even to take persuading, sometimes the placards are put in the child’s pram. It could be said that the children, who probably do not understand in the least the point of the demonstration, are being used in order to put over and support adult views, in a way which could be seen as manipulative and even abusive. I recognise that this is not in any way an activity which is limited to any particular social or religious group. What the father involved the boys in was not illegal, and as a one-off would have been unlikely to have led to any child welfare intervention. However, the demonstration was linked with ALM, and it was not appropriate, in my view, for the boys to be actively involved in such a demonstration or such an organisation, knowing the views expressed by members and the possible consequences of the expression of those views: a public disturbance over which the father had no control, or the expression of harmful views. The father said these were peaceful protests but he was not to know that they would be so. Most importantly it demonstrates the influences to which he has wished to or at least been prepared to expose the boys. It is part of the overall picture.
  5. The next sub -question therefore is (d),
    1. “Did the father expose the boys to harmful views at ALM- inspired talks and take them to talks given by individuals later convicted and/or charged with terrorism offences?”
  1. The father was an attendee at Da’wah (proselytization or outreach) stalls. These are booths displaying literature in public areas, and not confined to ALM. Z told me that from his knowledge someone who attended such a stall who showed a particular interest in extremist themes might, after several visits, be invited to attend an evening meeting, once a degree of familiarity and common ground had been established between the stall minder and the enquirer. That was how he had come to be invited to evening events. The father told me that all were welcome at the stalls, of whatever age or religion, men or women, and this demonstrated how innocuous they were. He also said that Z had been welcome when it was thought that he was genuine, but would not have been had it been known that he was an undercover policemen. The father could not explain why this would be, if there was nothing wrong with the stalls. Z told me, and I accept, that the Da’wah stall attended by the father, to which at one time he took the boys, linked with ALM. At one time he took the boys, but stopped doing so. Z does not know why he stopped taking the boys, but it was at about the time ALM had spread the news that supporters were at risk of care proceedings.
  2. I conclude that the stalls were used as recruitment tools where people were given literature supporting ALM’s aims, and tested out, from which they were drawn into the inner circle as and when it was thought appropriate.
  3. Photographs of the father with ALM affiliates have been recovered from telephones of those persons. I accept that the father attended other protests with London ALM affiliates with many senior associates.
  4. Z told me that the father had been to a number of meetings with the boys, probably about five, at a local church hall. These were small meetings, 30 people only, where theological matters were discussed. The father is devoutly religious and it seems to me to be well within the acceptable spectrum of behaviour for the children to go to meetings – even if they may not be terribly interested and may not actually understand what is going on – which may express views about religious practices, even though they may be of more interest to the adults than the children. Those attendances do not seem to me to be of serious significance in themselves, but ALM members, later convicted of terrorist offences were present, and the father could not have predicted exactly what views would be expressed. It is all part of a pattern.


The police also found a letter in the family home from Lee Rigby’s killer.  If there’s an innocent reason to be in correspondence with him, I can’t think of it.


  1. Related also to this evidence and the conclusions that I have drawn is another reference to the killer of Lee Rigby, Michael Adebolajo. When the father’s home was first searched a letter was found from this gentleman from prison; whether it was an original or whether it was a copy does not matter. I suspect that, in the circumstances, it may very well have been a document made available to a number of people within this circle. It is a letter which is covered by r.39 of the Prison Regulations, which is intended to go to the legal representative. It is, in fact, quite a strongly worded letter making various strong comments about religious matters. It is both assertive and rambling and is quite closely written. It makes reference to a number of religious concepts, using a number of Arabic words, and also it makes various aggressive comments as to the role of various people in English political life, generally, and those who are connected with the Islamic religion. The father accepts that it was found in his house. He told RX that he did not know how he had come by it. He at first told me the same thing. Then he said that he had been given it, but could not remember who by. When asked again, he said that it had been a man. He could not remember who or the circumstances, just that he had been told or encouraged to read it. He said that he had not read it himself. He could not remember any conversation with the donor, such as, “Why are you giving this to me; what this is about; what am I going to get from this; what is its importance?” and so on. He cannot say why he kept this document, although he says that he did not read it and never gave it any thought afterwards. I do not accept this explanation. He must have known about the contents of and welcomed this letter in order to both have and retain it.


The police inspected all of the family’s electronic devices.  (Which, by the way, is the common denominator between cases where the LA have been able to prove radicalisation and the ones where the electronic devices are not explored are the ones where findings don’t get made)


  1. Various photographs emerged from the search of the family devices. I have a number of separate photographs of the children and the father, dressed in what looks like Middle Eastern style red-and-white headgear, in the case of both the children and father, with their faces partly obscured by the cloth and holding what I am told are ornamental swords. The adult children said these had been purchased by the family as a set at a boot fair, or similar outlet, and to be ornamental only. The two younger children were very little when these photographs were taken and I suppose they may not have been aware of the significance, as it is asserted by Mr. Poole to be, of this style of dress. The father says also that this cannot be connected with Islamic State because it was not then in existence. Mr Poole submits that that this is a style of dress associated very much with Islamic fighters, and has been for some time, and that posing with weapons is very much a radicalised style. Mr. de Burgos accepts that this style of dress and presentation would be regarded, and rightly so, as extremely culturally offensive if worn at a fancy-dress show or party, as to many people’s eyes it will have very significant associations with terrorism and with politically and religiously motivated violence.
  2. I cannot go so far as to say that the photographs of the two younger children, in themselves, would have caused them harm at the time, but it is quite possible that viewing them online later as older children might have done so and have given them expectations as to how they are expected to behave, what beliefs they are supposed to have and how they are supposed to treat other people. There are pictures of the older children, including J, when much younger, also in similar poses, in similar attire and with similar weapons. There are pictures of A with a gun, which he says was taken when he was working on someone’s home and he simply asked whether he could pose with that particular gun, an air rifle, as a joke. There are photographs of the father with a BB gun, also in a very similar pose. These are strongly reminiscent of the poses in photographs of ALM members posted online, referred to above. There are photographs of other weapons, the significance of which, the family has not been able to explain. RX told me that he perceived a clear association with the graphic execution scenes online, and so, independently, do I.

  1. Some of the material found, particularly on R’s telephone, is very shocking and very disturbing indeed. It does not come from normal news sites. Father says that they might have come from Fox News, but I find it very difficult to imagine or to accept that heads in buckets, details of crucifixions, the process of execution, dead bodies and dead fighters showing, it is asserted, the joy with which they died, material relating to bombings, a man with a knife to his throat, execution quads, would be shown on normal news channels. It is not my experience of the mainstream press. I cannot say where this material came from, but the evidence that I had from RT, the technical expert relied on by the police, and his overall view, was that there had been a lot of internet searching for this kind of horrific image, particularly relating to the process of decapitation. There was particular footage, which has nothing to do with Islam or the Islamic State at all, which relates to horrors in South America. He told me that that was an indication of the kind of search that was going on and that someone in the home had had a pre-occupation with looking for this material. No-one in the family has been able to tell me who that might be. The father tells me, and I accept, of course, that, as a Muslim whose family emanates from South Asia, although via East Africa, he has an interest and a passionate commitment to finding out what is going on in the Islamic world and I quite understand that, but the material which has been downloaded does not fit with what the father told me about his focus of interest, or with the pre-occupation with terrorism, demonstrated also by books removed from the home.


(I mean, there’s a lot wrong with Fox News, but I don’t feel I can hold them responsible for this)



  1. I cannot say who in the family has downloaded this material, but it is most likely that it has been a number of them. There were images found not only on R’s phone and other material on other devices as well. There is a very strong theme of there being someone in this family, or perhaps more than one someone, who has an interest in painful things being done to other people. This is not just related to terrorism. I saw a video retrieved from one of the family phones of the youngest child, who must have been seven or eight, perhaps younger, it is difficult to see. It is footage, apparently, taken by J, the child who is now nearly 16, of her younger brother being made to eat a raw chilli by his older sister, R. The young people around him seem to be totally unconcerned about the pain which it is causing him and the distress that he is showing. Anyone who has inadvertently bitten into a piece of raw chilli in a meal knows that it causes intense pain to the mouth, a very sensitive area. There is laughing in the background. It is not just that this was done, and it is a wholly inappropriate form of punishment, but that it does not seem to have evoked any form of sympathy or empathy at all. RX suggested that this might have been a punishment for some kind of religious transgression, but I cannot say. I am, of course, conscious that children used to have their mouths washed out with soap for swearing in the old days and I appreciate that treatment of children, which we would regard now as barbaric, was considered to be appropriate in the past. Nonetheless, the combination of features, lack of feeling for the victim, group participation in this punishment and it being filmed, no doubt for some form of record or enjoyment, gives rise to a very uncomfortable feeling indeed. It chimes with my sensation that there a nastiness about some of the attitudes in this family.
  2. I am also very struck by the father’s reaction to the discovery of this material. According to the father he has scarcely asked R why she has had this material on the phone, and took some time to even state that he had. The point is made by Mr. de Burgos that she is an adult and is entitled to do what she wants, but I would have thought that the father would want to enquire as to why his daughter had such interests, particularly because he is a loving father and the children have always been closely tied to the home and also, obviously, feel a high degree of responsibility for him. He does not seem to have tackled this issue at all, and the most likely explanation is that access to these kinds of images and their sharing was part of the norm. Furthermore, he told me that his little son had never told him about the chilli incident. He had not spoken to R or, indeed, any of the other children about why the video had been taken or what had been going on, or why she had punished L in this way. If that is true, it shows at the least a remarkable derogation of parental responsibility and lack of interest in what has been happening. His lack of interest strongly suggests that this was a form of punishment that was part of the norm within this family.
  3. DS has told me that all the electronic devices in the family were open to all members of the family. The father said that they were password protected. RT told me that he overrode one password. I am not prepared to accept that the children did not have access to this kind of material. I cannot say for certain whether they had. There is no actual evidence that they did. It may be unlikely that they would try to break into password protected material, but it may have been very easily available.
  4. It is highly likely that the children were shown it. I say that in particular because, during the family’s Eid celebration, there is a video of the family in front of the cake and a particular film being shown on the television. There are photographs of the family living room decorated with the Black flag bearing the Arabic word ‘shahada’. The father says that this was just part of a continuous streaming through YouTube or music that he wanted to listen to. Whether that is so, I am not going to decide, but let us assume that it is. It showed the ISIS flag and a black-clad figure against a desert background. It is very similar to some of the photographs found online and a very obvious approbation of the ISIS regime. Pro-Caliphate speeches can be heard in the background. The flag, the father accepts, which pictures the seal of the Prophet, is, as far as he knows, and as any of us know, only used by ISIS and not by any other group. So although it may incorporate a perfectly acceptable and holy image, it has very obvious connotations if shown on the screen. The children seemed to me to be looking at the screen in the photograph. The father says they were interested in the cake, but this video was very obviously there, right in front of their faces, and available to be watched. The father says that he was not interested in the background; he was merely interested in the “Nasheed”, the religious songs which accompany it. I do not find that an acceptable explanation. At the very least, the father was extremely careless about what he exposed his children to, but it is far more likely that this was a form of entertainment which the family wanted to look at and was available to the younger children as well.



We learn even that during the care proceedings, the father was posting pro Islamic State material on his Twitter feed, which he claimed was in protest at the way the English Courts were treating him and his family.


In case you are wondering, the later judgment


Re Y Children Radicalisation 2018


shows that all three of the younger children were made the subjects of Care Orders and placed in care.

Unlawful killing




A very peculiar case and one in which leading counsel puts self in harms way in order to demonstrate breach of article 6 and succeed in appeal.


Re R (Children) 2018


In this case, the central issue related to


On the evening of 2 June 2016 the mother of two young children died in the kitchen of their family home as a result of a single fatal knife wound to her neck; the wound had been inflicted by their father


The father was arrested and the two children were removed into foster care. The father faced criminal trial and was acquitted of all charges. There was a finding of fact hearing in the High Court and the father was made the subject of a finding that “he had used unreasonable force and unlawfully killed the mother”


He appealed that finding, successfully.




5.The mother’s death occurred in the context of an acrimonious relationship between the parents following the father’s discovery, in December 2015, that the mother was having an affair. The parties had separated and at the time of the killing the mother was living away from the family home where the two children still lived with their father. The mother returned to the house regularly to have contact with the children; the evening of 2 June 2016 was one such occasion. During the course of an argument between the couple in the kitchen of the property, the mother picked up a kitchen knife and slashed out with it so as to cause significant injury to the child A’s arm and to the back of the father’s head.



6.The father was able to usher A out of the immediate vicinity. He then struggled with the mother and at some stage gained possession of the knife. It was at that stage that the mother sustained the fatal wound to her neck. The knife caused a single but very substantial wound which severed most of the internal structures of the centre and right side of the neck including a complete transection of the right common carotid artery and internal jugular vein. As a result the mother experienced an immediate very substantial loss of blood causing her to collapse and die shortly thereafter. Cause of death was exsanguination due to the severity of the neck wound.



7.The father’s account, both during his criminal trial and before Theis J, was that he had done no more than was reasonable in the circumstances to protect himself and the children.



8.Although it is not my intention to descend to detail it is necessary, for the purposes of understanding an aspect of the father’s Article 6 appeal, to set out the terms of an account presented by his criminal defence solicitors to the experts in the criminal trial in a letter dated 2 December 2016 which reads as follows:




“He was holding the knife in his right hand by the handle. (Mother) came at him and he swung in a circular motion with the knife which connected with the left side of (mother’s) neck. The knife entered the neck at this point and went straight through the neck to the other side and in fact the tip was pointing through. The skin on the front of the neck was intact. The blade of the knife was facing [the father]. [The father] was still holding the knife in this position as the movement continued and he pushed (the mother) backwards whereby the knife was cut out of the throat as the blade was facing [the father]. The knife has come out of the neck/throat as (the mother) has fallen away. “

9.Again in very short terms, the significance of that account was, on the unanimous evidence of the expert pathologists called in the proceedings, that for the knife to go into the neck and be followed by the action of pushing the mother backwards causing the knife to slice forward and exit the neck, involved two planes of motion, whereas the shape of the wound on the mother’s body indicated a single continuous movement rather than two.



The father’s appeal was based on two major facets. Firstly, that the High Court had become very bogged down in criminal terminology when conducting the fact finding hearing (as a result of the word ‘unlawfully’ in the threshold finding sought, the defences to lawful killing – self-defence and loss of control, played a significant part in the case) and secondly that the timescales set down by the High Court for the preparation of father’s case were so short and unrealistic that it put the father in the position of having his very skilled and experienced representative feeling that she was not in a position to properly put his case.



(Being fair to the LA here – because threshold requires that a parent’s behaviour which caused the harm was ‘not being what it would be reasonable to expect’, they may well have concluded that the father if asserting that he acted in self-defence which was reasonable might have a basis for concluding threshold was not met and felt that they needed to establish a higher level of culpability on his part. It is very very tricky drafting threshold in a set of circumstances like this. I think I might have tested the water to see if something along the lines of “The children were exposed to an extreme incident of violence leading to the violent death of the mother, which would have been extremely frightening and distressing and which will be likely to have lifelong implications for their mental and emotional wellbeing” might have been accepted, but it is a lot easier to make that call in the benefit of hindsight)


The criminal bit first





31.For the appellant, Miss Venters’ response to the court’s interjection was to state firmly and clearly that the Family Court should not involve itself in analysis based upon the criminal jurisprudence. In particular, by reference to this case, she submitted that it was unnecessary and impermissible for the Family Court to make findings of “unreasonable force” or “unlawful killing”.



32.Miss Janet Bazley QC, leading Miss Catherine Jenkins, who both appeared below, pointed to the terms of the local authority’s pleaded case as set out in a “final threshold document and schedule of findings” dated 26 June 2017:




“On 2 June 2016, the father killed the mother by cutting her throat…he used unreasonable force or, alternatively, his actions were reckless in all the circumstances.”


Miss Bazley informed the court that the local authority had not intended to establish a link between the findings that it sought and any test within the context of criminal law. Miss Bazley pointed to the formal response to the proposed findings made on behalf of the father which asserted that he had used “reasonable force” and, for the first time, brought in criminal law concepts which, as the trial progressed, lead all the parties to address the issues in the case by reference to the relevant criminal case law.

33.However, in the local authority Opening Note the following appears:




“The local authority’s current position is that the preponderance of the relevant evidence is that the father was behind the mother when he caused the fatal injury. If the court concludes that this is more likely than not to have been the case, the local authority will invite the court to conclude that the father killed the mother deliberately.”


Miss Bazley submitted that it is permissible for the Family Court to make a finding that killing was “deliberate”. She is explained that at no time did the local authority seek a finding of “murder”. However, Miss Bazley later accepted that the local authority’s “closing submissions” document includes the following under the heading “conclusion in relation to the other findings sought”:


“In relation to the mother’s death, the local authority invites the court to conclude on all the evidence, that this was an unlawful killing, probably pre-meditated or otherwise carr[ied] out in anger. The court is respectfully invited to firmly reject the father’s assertion that he acted either instinctively (an accident), or in self defence, using reasonable force.”

34.More generally, and in response to this court questioning why it was necessary for the Family Court to establish precisely how the mother was killed, Miss Bazley submitted that detailed findings were important because of the difference they might make to the welfare determination that the court would have to make at the end of the family proceedings.



35.Miss Bazley submitted that it was appropriate for the Family Court to use the word “reasonable” in a non-legal manner. She also asserted that the local authority had not sought a finding that the mother’s killing had been “unlawful”. Such a finding, she submitted, was not necessary in the context of the family proceedings.



36.On the facts of this case, as found by the judge, any reference to the father acting in “self defence” evaporated as the judge rejected his account. Thus, whilst the local authority accepted their part in the collective error by the advocates in encouraging the judge to consider the criminal case law as to self defence, and accepted that the judge should not have made a finding of “unlawful” killing in the family proceedings, Miss Bazley submitted that the detailed factual findings of the judge should stand. She submitted that the references to criminal law, “unreasonable force” and “unlawful killing” were extraneous for the purposes of the Family Court process and they could be struck out from the judge’s judgment and findings without the need for a re-trial of the factual evidence.



37.For the children’s guardian Mr Malcolm Chisholm, who also appeared below, argued that, as the father’s case was that he was defending himself from an attack by the mother, a finding as to the degree of force used was important and would heavily influence the determinations about the children’s welfare that the Family Court would, in due course make. Mr Chisholm accepted that it was neither necessary nor helpful for the Family Court to analyse these issues by reference to parallel provisions in the criminal law, or, for that matter, the civil law (as for example in Ashley v Chief Constable of Sussex Police) [2008] UK HL 25). Mr Chisholm accepted the court’s observation that, in contrast to criminal or civil proceedings, the focus of the Family Court is not on the adult, or the need to establish a finding of culpability against him; the Family Court’s focus is upon the children and their future welfare. Put shortly, Mr Chisholm said that the question for the Family Court is “is he safe or is he unsafe?” Detailed findings of fact are therefore necessary to determine, for example, whether an individual has over reacted or whether they have been honest and are reliable.



38.Like Miss Bazley, Mr Chisholm urged this court to strip out the judge’s extraneous references to criminal law and the attribution of criminal law labels to her specific findings, whilst leaving the detailed findings themselves standing. Mr Chisholm submitted that there was a real integrity to the judge’s fact finding judgment as a whole. The factual findings are supported by a wealth of reliable evidence and were, in his words, “absolutely rock solid”.



39.In response, Miss Venters submitted that the whole trial before the judge and the resulting judgment were tainted by reference at every point to the need to conduct the analysis of the factual evidence and make findings in a manner compatible with the criminal law. All parties now accept that that approach was wrong and, as a consequence, the judgment as a whole cannot stand.



Conclusions on that aspect



61.Although the father’s grounds of appeal implicitly accepted that the judge had been obliged to apply the relevant elements of the criminal law directly within her analysis of the evidence and in drawing factual conclusions, at an early stage of the oral appeal hearing the court questioned whether the criminal law should have any place in a fact-finding determination made in the Family Court. As a result of our intervention, all parties before the court readily accepted that the structure and substance of criminal law should not be applied in the Family Court and, to the extent that that had occurred in the present case, the court process and the judge’s evaluation had been conducted in error.



62.The parties were right to concede the point, and to do so without argument, as they did. The focus and purpose of a fact-finding investigation in the context of a case concerning the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a criminal court. The latter is concerned with the culpability and, if guilty, punishment for a specific criminal offence, whereas the former involves the determination facts, across a wide canvas, relating to past events in order to evaluate which of a range of options for the future care of a child best meets the requirements of his or her welfare. Similarly, where facts fall to be determined in the course of ordinary civil litigation, the purpose of the exercise, which is to establish liability, operates in a wholly different context to a fact-finding process in family proceedings. Reduced to simple basics, in both criminal and civil proceedings the ultimate outcome of the litigation will be binary, either ‘guilty’ or ‘not guilty’, or ‘liable’ or ‘not liable’. In family proceedings, the outcome of a fact-finding hearing will normally be a narrative account of what the court has determined (on the balance of probabilities) has happened in the lives of a number of people and, often, over a significant period of time. The primary purpose of the family process is to determine, as best that may be done, what has gone on in the past, so that that knowledge may inform the ultimate welfare evaluation where the court will choose which option is best for a child with the court’s eyes open to such risks as the factual determination may have established.



65.The extracts from the judgments of Butler-Sloss P and Hedley J helpfully, and accurately, point to the crucial differences between the distinct roles and focus of the criminal court, on the one hand, and the Family Court, on the other, albeit that each may be considering the same event or events within their separate proceedings. Against that background, it must be clear that criminal law concepts, such as the elements needed to establish guilt of a particular crime or a defence, have neither relevance nor function within a process of fact-finding in the Family Court. Given the wider range of evidence that is admissible in family proceedings and, importantly, the lower standard of proof, it is at best meaningless for the Family Court to make a finding of ‘murder’ or ‘manslaughter’ or ‘unlawful killing’. How is such a finding to be understood, both by the professionals and the individual family members in the case itself, and by those outside who may be told of it, for example the Police? The potential for such a finding to be misunderstood and to cause profound upset and harm is, to me, all too clear.



66.Looked at from another angle, if the Family Court were required to deploy the criminal law directly into its analysis of the evidence at a fact-finding hearing such as this, the potential for the process to become unnecessarily bogged down in legal technicality is also plain to see. In the present case, the judge’s detailed self-direction on the law of self-defence, and the resulting appeal asserting that it was misapplied, together with Miss Venters’ late but sound observations about the statutory defence of ‘loss of self-control’, are but two examples of the manner in which proceedings could easily become over-complicated and side-tracked from the central task of simply deciding what has happened and what is the best future course for a child. It is also likely that the judges chosen to sit on such cases in the Family Court would inevitably need to be competent to sit in the criminal jurisdiction.



67.There is no need to labour this point further. For the reasons that I have shortly rehearsed, as a matter of principle, it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts. As my Lord, Hickinbottom LJ, observed during submissions, ‘what matters in a fact-finding hearing are the findings of fact’. Whilst it may not infrequently be the case that the Family Court may be called upon to re-hear evidence that has already been considered in the different context of a criminal prosecution, that evidence comes to the court simply as evidence and it falls to be evaluated, in accordance with the civil standard of proof, and set against whatever other evidence there may be (whether heard by the criminal court or not) for the sole purpose of determining the relevant facts.



68.That the Family Court process in the present case fell into error in the manner that I have described is now conceded and is not in doubt. That it did so is a matter of both surprise and regret in circumstances where the highly experienced advocates for all three parties jointly advised the judge that it was necessary to rely directly on the criminal law and, so far as the local authority are concerned, where a specific finding of ‘unlawful killing, probably pre-mediated or otherwise carried out in anger’ was sought.



69.What is the impact of this error on the overall integrity of the process before Theis J and the judge’s detailed underlying findings? Miss Venters submits that the whole hearing was irrevocably tainted by focus on the criminal law and the need to achieve a finding of ‘unlawful killing’ against the father. The local authority and the guardian, conversely, argue that the high-level findings of ‘unreasonable force’, ‘unlawful killing’ and ‘loss of control’ are extraneous and can be struck out leaving the judge’s discrete factual findings intact.



70.Given the scale of the hearing before Theis J, in terms of time, endeavour and cost, any rehearing should only be contemplated if there is no alternative available course. As will be apparent from this judgment, this court has not begun to evaluate the soundness of the judge’s underlying findings and, for these purposes, I am prepared to accept that each of the 17 detailed findings made at paragraph 141 may be, as Mr Chisholm cast them, ‘absolutely rock solid’. It remains the case, however, that the court was led into fundamental error in relation to a matter of legal principle. It is clear from the local authority opening statement and from its closing submissions that it was presenting its case on the killing in the terms of the criminal law; that was the case that the father understood he had to meet and that was plainly the mindset of all three legal teams and of the judge. The fact that this appeal was being run, and responded to, as a detailed debate conducted within the criminal law of self-defence is proof enough that the fundamental error that has now been identified (and accepted) was not understood by any of the parties prior to the hearing in this court.



71.Given the importance, in terms of its scale and the potential impact upon him, I regard the fact that the court was wrongly drawn into making a finding of ‘unlawful killing’ within these family proceedings, and given the manner in which the proceedings were wrongly focused from the start on establishing culpability in the context of the criminal law, I would be minded to accept Miss Venters’ submission that the case as a whole was tainted to such an extent that it is insufficient simply to strike out certain offending words from the judgment. But, before reaching a conclusion on this all-important question, I propose to consider the father’s case more generally in relation to ‘fair trial’.



The fair trial point



The father was acquitted on 30th May 2017. The family Court had a directions hearing on 9th June 2017 setting the case down for a finding of fact hearing. The LA produced its schedule of findings sought on 26th June 2017 seeking (for the first time) a finding of ‘unlawful killing’ – the fact finding hearing was due to begin on 11th July – eleven working days later.


Eleven working days to effectively prepare a murder trial is obviously compressing realistic timescales considerably. Under protest from the father’s team, the Court granted a five day adjournment, giving effectively three working weeks for father to prepare. For a fact finding hearing involving 42 witnesses, from a standing start.





44.In relation to the appellant’s case under Article 6, Miss Venters makes one overarching submission and one very specific submission each pointing to the overall unfairness of the process.



45.The overarching submission can be recorded shortly. It is that, despite their very best endeavours, the father’s legal team were simply not able adequately to prepare for the fact finding hearing. Although the “criminal bundle” had been disclosed and copied to the father’s legal team in the family proceedings as the criminal process went on, it had not been read by them because the material in it was not, at that time, relevant to any factual issues that were to be litigated before the Family Court. Miss Venters, understandably, states that any time spent working on the criminal papers would, in any event, not have been covered by the father’s Family legal aid certificate at that stage.



46.In relation to equality of arms, Miss Venters points out that the local authority had taken three weeks after the conclusion of the criminal trial to consider the criminal material before disclosing, for the first time, that they intended to seek findings upon it. Thereafter, in contrast, the father was given just 7 days to file his response.



47.The specific point relied upon by the appellant under Article 6 which was, again, unfortunately, raised for the first time in oral argument, relates to the reliance placed upon the letter from the father’s criminal defence solicitors dated 2 December 2016 (set out at paragraph 8 above) during the Family Court trial.



48.I have already explained the significance placed on the 2 December account by the experts, it being the unanimous expert view that the mechanism described in that letter would involve two planes of motion, whereas the injury to the mother was likely to have resulted from one single movement of the blade.



49.Miss Venters told this court that the 2 December 2016 letter was not provided by the father’s criminal team to the advocates in the family proceedings until 1 August, a week prior to the second part of the hearing when the experts were due to attend and, thereafter, the father was due to give his evidence. During the hearing the terms of the December 2016 letter were taken by all parties, including Miss Venters, as being the father’s account. It is only, Miss Venters reports, as a result of consideration she has been able to give to the case since the conclusion of the Family Court trial, and after the judge’s judgment, that she now understands that the second part of the December 2016 account, namely that the father pushed the mother backwards, has never been an account given by him in police interviews, during the criminal trial or during the family proceedings. The December 2016 letter was put to the father in the witness box before Theis J and he simply accepted that that account had been given.



50.Miss Venters submits that the fact that she failed to notice that the pushing element in the December 2016 account was not, in fact, a description that her client had ever actually given in evidence, is but one example, albeit a very significant one, of her overall inability to be on top of her client’s case as a result of the wholly unrealistic time afforded to the father’s team for preparation.



51.Miss Venters offered as a further example, the lack of sufficient time for her to consider whether or not the eldest child, A, should be called to give oral evidence within the family proceedings.



52.Candidly, Miss Venters told the court that she is not now able to identify other specific aspects of the father’s case which, as a result of the pressure of work, were not presented to the court. Her position was, however, that, as an experienced professional she “simply did not have a grip on the evidence” in order to identify what issues should be raised in cross-examination or otherwise.



53.Miss Venters reports that, despite expressly raising in detail the many difficulties she faced, and despite taking up a dozen or so pages of her opening Position Statement at the start of the hearing listing the difficulties that were still outstanding, the court pressed on with the hearing with the result that Miss Venters told this court that she felt that she simply “wasn’t being heard in anyway” on these points by the other parties or by the judge.



And in conclusion



72.Having set out the key elements in the appellant’s case in relation to the ability of his legal team to meet the case against him in a manner that was fair and proportionate, it is possible to deal with this aspect of the appeal shortly.



73.An advocate as experienced and robust as Miss Venters deserves to be taken seriously when she tells an appellate court that, in consequence of the difficulties that she has explained, she ‘simply did not have a grip on the evidence’ and that, despite giving a clear and specific account of her professional difficulties, her client’s case in that regard was not heard. When the factual finding that the court has made is of the magnitude and, in terms of its impact in the family proceedings and elsewhere, importance as the one reached by the judge here, the need to take what is said seriously is particularly acute.



74.Although we have not drilled down to detail, or examined the trial documents and other material, there is no real dispute about the scale of the task facing the father’s lawyers when, for the first time on 26th June, they understood that the criminal evidence was all to be re-heard within the family proceedings. They had, initially, 11 working days to prepare and, although that was subsequently extended to 15 and the experts were not called until 3 weeks after that, it seems likely to me that the timetable imposed by the court on the father’s team was, in the circumstances, untenable.



75.It is of particular note that it was only in the local authority Opening Note, dated 11th July, that the father will have read for the first time that a finding of ‘deliberate’ killing was being sought against him in the Family Court.



76.Although no specific example of the father’s case not being correctly or fairly presented to the judge is pleaded in the Grounds or Skeleton Argument, Miss Venters’ late reference to the importance of the 2nd December 2016 criminal solicitor’s letter is of significance. She, as the advocate who was in charge of the father’s case, has told this court that what is said in the second part of the account in that letter has never actually been directly given in evidence by her client. It has simply been taken as read as being his account and, then, dismissed as tenable by the experts in a manner which the judge, understandably, found to be of importance. For my part I did not regard the five references to which we were taken by Miss Bazley as being conclusively against the point that is now being made; they may be or they may not be. Equally, the extract from the transcript of the father’s cross examination, rather than being reassuring that what was said in 2 December document was his accurate memory, seemed to bring the issue yet further into doubt.



77.The importance of the father’s account on whether there was one motion or two movements with the knife is plainly high. In terms of determining the issue of ‘fair trial’, it is neither necessary nor wise for this court to analyse the matter further. For my part, the fact that the father’s advocate has now raised the issue, and has told this court that, because of the speed of preparation (and the document’s late delivery), she only appreciated its significance after the end of the proceedings, may well establish that, as a result of the undue pressure of time, an important aspect of the father’s case may not have been presented fairly to the court.





78.The hearing of this appeal took an unusual course. As a result of the intervention of the court, we have not heard the full appeal. Instead, the advocates responded to and conceded the point of principle raised by the court concerning the relevance of criminal law and we then heard shortly on the ‘fair trial’ issues before adjourning to take stock of the appeal in the light of those submissions.



79.Having now undertaken the stock-taking exercise, and for the reasons that I have expressed thus far, it is clear, firstly, that a serious error occurred in the trial in relation to the relevance of the criminal law. Secondly, that error may not, of itself, justify ordering a rehearing, but the option of simply striking the offending words from the judgment may not be an adequate remedy given the significance of what had been, wrongly, said. Thirdly, whilst, again, the points made about a lack of a fair process may not establish, as night follows day, that only a rehearing will provide a remedy, what is said about the 2nd December letter, given its importance in the case, is of real concern.



80.Although an error of law may not necessarily lead to a finding that there has not been a ‘fair trial’, in the present case, when that error goes to the very focus of the fact-finding process and the judge’s analysis, I consider that the point sits squarely within the rights protected by Article 6. The two matters that I have thus far considered separately in this judgment should therefore, properly, be drawn together. If that is done then, albeit with a heavy heart, I am fully persuaded that in combination, looking at the matter overall, and taking both elements into account, this appellant has not been afforded a sufficiently fair trial in the Family Court



The Court of Appeal then give some specific guidance in relation to family Courts hearing allegations which have been tried in the criminal Court.



81.Moving beyond the circumstances of the present appeal, and building upon what is said at paragraphs 61 to 67 above, the following general observations as to the approach of a family court when trying, or re-trying, factual issues which could also be framed as a criminal charge are intended to be of assistance to all levels within the Family Court, where the need to undertake such a fact-finding exercise is by no means unusual.



82.By way of summary, the following points are, in my judgment, clear:




  1. a) The focus and purpose of a fact-finding investigation in the context of a case concerning the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a criminal court [paragraph 62 above];


  1. b) The primary purpose of the family process is to determine what has gone on in the past, so that those findings may inform the ultimate welfare evaluation as to the child’s future with the court’s eyes open to such risks as the factual determination may have established [paragraph 62];


  1. c) Criminal law concepts, such as the elements needed to establish guilt of a particular crime or a defence, have neither relevance nor function within a process of fact-finding in the Family Court [paragraph 65];


  1. d) As a matter of principle, it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts [paragraph 67].

83.Where there has been, or may be, a criminal prosecution in relation to the actions of a parent or other person connected with a child whose future welfare is the subject of public or private law proceedings before the Family Court, the question of whether the factual matters that may support such a prosecution should also be litigated within the family proceedings falls to be determined by the Family Court on a case-by-case basis.



84.The Family Court should only embark upon a fact-finding process where it is necessary to do so. The recently updated Practice Direction FPR 2010, PD12J ‘Child Arrangements and Contact Orders: Domestic Abuse and Harm’, relating to private law proceedings includes the following guidance which is of more general application to all proceedings relating to the welfare of children where ‘domestic abuse’ or other potentially criminal activity is alleged:





‘Directions for a fact-finding hearing



  1. The court should determine as soon as possible whether it is necessary to conduct a fact-finding hearing in relation to any disputed allegation of domestic abuse –




(a) in order to provide a factual basis for any welfare report or for assessment of the factors set out in paragraphs 36 and 37 below;




(b) in order to provide a basis for an accurate assessment of risk;




(c) before it can consider any final welfare-based order(s) in relation to child arrangements; or




(d) before it considers the need for a domestic abuse-related Activity (such as a Domestic Violence Perpetrator Programme (DVPP)).



  1. In determining whether it is necessary to conduct a fact-finding hearing, the court should consider –




(a) the views of the parties and of Cafcass or CAFCASS Cymru;




(b) whether there are admissions by a party which provide a sufficient factual basis on which to proceed;




(c) if a party is in receipt of legal aid, whether the evidence required to be provided to obtain legal aid provides a sufficient factual basis on which to proceed;




(d) whether there is other evidence available to the court that provides a sufficient factual basis on which to proceed;




(e) whether the factors set out in paragraphs 36 and 37 below can be determined without a fact-finding hearing;




(f) the nature of the evidence required to resolve disputed allegations;




(g) whether the nature and extent of the allegations, if proved, would be relevant to the issue before the court; and




(h) whether a separate fact-finding hearing would be necessary and proportionate in all the circumstances of the case.’

85.In addition the factors listed at paragraphs 36 and 37 of PD12J are also likely to be relevant in deciding whether to conduct a fact-finding process in relation to ‘domestic abuse’ or any other potentially criminal activity in any proceedings relating to the welfare of a child:




’36. In the light of any findings of fact or admissions or where domestic abuse is otherwise established, the court should apply the individual matters in the welfare checklist with reference to the domestic abuse which has occurred and any expert risk assessment obtained. In particular, the court should in every case consider any harm which the child and the parent with whom the child is living has suffered as a consequence of that domestic abuse, and any harm which the child and the parent with whom the child is living is at risk of suffering, if a child arrangements order is made. The court should make an order for contact only if it is satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact, and that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent.


  1. In every case where a finding or admission of domestic abuse is made, or where domestic abuse is otherwise established, the court should consider the conduct of both parents towards each other and towards the child and the impact of the same. In particular, the court should consider –



(a) the effect of the domestic abuse on the child and on the arrangements for where the child is living;



(b) the effect of the domestic abuse on the child and its effect on the child’s relationship with the parents;



(c) whether the parent is motivated by a desire to promote the best interests of the child or is using the process to continue a form of domestic abuse against the other parent;



(d) the likely behaviour during contact of the parent against whom findings are made and its effect on the child; and



(e) the capacity of the parents to appreciate the effect of past domestic abuse and the potential for future domestic abuse.’

86.On the basis of the guidance in PD12J, and on the basis of general principles, a family court should only embark upon a fact-finding investigation where it is both necessary and proportionate to do so, having regard to the overarching purpose of public law proceedings of (a) establishing whether the CA 1989, s 31 threshold criteria are satisfied and (b) determining the future plan for the child’s care by affording paramount consideration to his or her welfare.



87.Where, as is in the present case under appeal, one of the parents has died in the course of an altercation with the other parent, it may well be necessary to investigate the broad context of the relationships within the family and the behaviour of the parents over a period of time, but it does not follow that it will also be necessary for the court to determine precisely how the death occurred and the role, if any, that the surviving parent played in it. In each case, it will be a matter for the judge in the Family Court to decide, in the circumstance of each individual case, whether some or all of the issues that relate directly to the death need to be investigated in the family proceedings and, if possible, determined.



88.For my part, and from experience of a number of such cases over the years, the importance, in some cases, of the court and the children knowing whether or not the surviving parent’s actions were reasonable or not in relation to the circumstances of the death itself is likely to render a fact-finding hearing necessary, but this, it must be stressed, is a matter for the trial judge to determine in each case. That general observation is in line with the judgment of this court [Wall LJ and Neuberger LJ] in Re K (Non-accidental Injuries: Perpetrator: New Evidence) [2004] EWCA Civ 1181; [2005] 1 FLR 285 at paragraph 56:




‘… we are also of the view that it is in the public interest that children have the right, as they grow up into adulthood, to know the truth about who injured them when they were children, and why. Children who are removed from their parents as a result of non-accidental injuries have in due course to come to terms with the fact that one or both of their parents injured them. This is a heavy burden for any child to bear. In principle, children need to know the truth if the truth can be ascertained.’

89.The potential for future harm to a child where one parent has been directly involved in the circumstances that have led to the death of the other parent, is by no means limited to the risk that the surviving parent may physically injure the child. Indeed, future physical injury may be low on the spectrum of future potential harm. It is the potential for future emotional and psychological harm arising, either directly from the ‘fact’, if fact it be, that the surviving parent caused the death of the other, or indirectly from the way in which the parent will conduct him/herself in the future as a consequence, which is likely to be of far more importance.



90.Lastly, I would mention the specific matter of the use of language. The potential for the court to become drawn into reliance upon criminal law principles is demonstrated by the present appeal. Even where the family court succeeds in avoiding direct reference to the criminal law, it is important that, so far as it is possible to do so, the language of the judgment (and in particular any findings) is expressed in terms which avoid specific words or phrases which may have a bespoke meaning in the context of the criminal jurisdiction, for example ‘self-defence’, ‘reasonable force’ or ‘the loss of self-control’. Phrases such as ‘inappropriate force’ or ‘proportionate force’ may reflect the judge’s findings in a particular case, and avoid the risk that the judge’s words may be misunderstood as expressing a finding based directly upon criminal law principles.



91.At the end of the day, the often very difficult role of a judge once it has been determined that a finding of fact hearing is necessary can be reduced to the short statement that the family judge’s task in such cases is simply to find the facts. Once any facts are found, they will then form the basis of a more wide-ranging assessment of any consequent risks to the child whose future welfare needs will then fall to be determined


The Court of Appeal did disagree as to whether a finding of fact hearing would be necessary at all (in a minority judgment) and how the Court at a re-hearing was to determine whether father’s actions were or were not reasonable (again, in a minority judgment). We may not have had the final word on this sort of thing.    (The minority judgment was suggesting that threshold akin to my earlier formulation – that regardless of culpability for the death of the mother, the emotional harm suffered by the children by witnessing her violent death was the real issue and thus a finding of fact as to culpability for death would not always be necessary. )



Cross-examining alleged victim without a lawyer


Readers may remember a long-running issue about the fact that in crime, an alleged perpetrator of rape is banned from cross-examining the alleged victim whereas we have ended up in private family law of that being something that is not only not banned but cropping up more and more as an issue, because the Government cut legal aid.  Readers might also remember that following a campaign in the Guardian, the Lord Chancellor at that time declared that legislation would be introduced to fix that problem. The draft legislation was drawn up, and then the Government decided to embark on the Greatest Political Idea of All Time TM, in which in order to increase their working majority, they held an election years early and converted said working majority into a hung Parliament.

I’m afraid that I can’t see the draft legislation now for all of the long grass that it is hiding within. Anyone in the Press want to remind the Government that they promised to fix this mess and haven’t?


Apologies in advance for pedants – the law report uses McKenzie Friend and MacKenzie Friend completely interchangeably and nobody in the Court of Appeal seems to have corrected this.  It should be Mc, NOT Mac.  /Furiously checks document

This is an appeal where the father in a set of private law proceedings was accused of having raped the mother and he denied it. He did not have a lawyer, but did have a McKenzie Friend. Should the McKenzie Friend have been given rights of audience and allowed to cross-examine the mother?



Panini McKenzie Friend stickers album – “Got, got, need, got, oh NEEED”


(actually, the sticker should have been one of Duncan’s friends, not Mr McKenzie himself….)


Re J (Children) 2018

  1. There was no objection to the father having the assistance of a Mackenzie Friend and no objection to the identity of the particular Mackenzie Friend involved who, indeed, the judge described as “obviously a very experienced Mackenzie Friend”. The issue related to what, if any, rights of audience the Mackenzie Friend might be afforded.
  2. It is now well known that difficulties exist where challenge is made by a litigant in person, who is identified as the perpetrator of serious abuse, and that challenge falls to be put in cross-examination to the key witnesses who support those allegations. The case law on this topic was developing during the currency of the present proceedings and, by July 2015, this court had given judgment in the case of Re K and H (Children) [2015] EWCA Civ 543 which rejected the suggestion that there was jurisdiction in the court to direct that HMCTS, or indeed any other agency, should provide public funding for limited legal representation. HHJ Allweis noted that decision and rehearsed the key details of it in his short judgment. He noted that ‘the case is a difficult one in which, in extremely broad terms, the parents make serious allegations against each other’. He focused upon the application for rights of audience for his McKenzie Friend made by this father in these proceedings at paragraph 15 of that judgment in these terms:
    1. “15. The idea of a McKenzie Friend, however articulate and experienced, either cross-examining a parent accusing a partner of serious sexual violence or indeed serious physical violence, or even of cross-examining the parties’ 16 year old child if in due course X gives evidence against his father, is highly unpalatable and this court would be very disturbed by that prospect. [The McKenzie Friend] has suggested that he has been given rights of audience frequently by judges and I pressed him as to whether this had ever happened in Greater Manchester. In effect he said that it had not and that there may be geographical differences. I told him in no uncertain terms that I have never come across it in Greater Manchester and this court, of course, is one of the busiest, if not the busiest, family court in the country.”
  3. The judge then reminded himself of the relevant practice guidance on McKenzie Friends ([2010] 2 FLR 962), in which the President, at paragraph 4, states that McKenzie Friends may not, inter alia, “address the court, make oral submissions or examine witnesses”.
  4. The judge refused the application saying:
    1. “19. At the end of the day, for the reasons I have given, the application is refused. I contemplate with profound disquiet, and that is putting it pretty mildly if I may say so, the prospect of a McKenzie Friend, in effect with rights of audience, cross-examining a mother in relation to serious and complex allegations, let alone a teenage child of the parties if and when X gives evidence so the application is refused.”



What ended up happening in the case is that the finding of fact hearing never took place, because of the anxieties the Court had about how the mother could be questioned about these events. By the conclusion of the private law proceedings, the children were expressing very strong views about their father


  1. The judge provided an extensive summary of the NYAS worker’s report which recorded that the children were “extremely loyal to their mother” and adamantly against contact. So far as A is concerned the judge said:
    1. ‘A gave [NYAS worker] a statement he had prepared and said no-one had read. He would be delighted to give evidence against his father. Despite what he said, it appeared later in the report that the children, which really means A and B, had written at the suggestion of their mother acting on advice from her solicitor. … What I do note is that A’s statement … even assuming that what A was saying factually was true, is a very disturbing document to read. It has the imprint of his mother’ accusations. However, even allowing for the possibility of him imbibing unquestioningly all his mother had said, he nevertheless presents as an intelligent and fiercely independent young man’.

The judgment continues by describing the content of the statement the force of A’s negative opinion of the father that is expressed within it, before recording the judge’s overall opinion that the statement

‘is an extremely distressing read – I am not sure I have seen such a vitriolic condemnation of a parent by a teenager for many a long year.’

  1. The judge’s detailed summary of the children’s wishes and feelings, as described by the NYAS worker, continued by setting out B’s wishes, which were in line with his older brother. The youngest child, C, was also ‘clear that she did not want to see’ her father. The judge’s account of her wishes includes the following:
    1. ‘She wrote that she wanted all the bad things dad had caused to go away. She wished they had never gone to the refuge and she wished she did not have nightmares about dad. She did not want to see him EVER (ever in capital letters). No-one could drag her kicking and screaming to see her father. On the second visit she was even more emotional and angry.’


At the Court of Appeal, the father had the assistance of his McKenzie Friend and the Court of Appeal were complimentary about the help that the McKenzie Friend had given to the Court.


  1. For some time now the Court of Appeal has normally granted rights of audience to a bona fide McKenzie Friend. The experience of doing so has been very largely positive in that those McKenzie Friends who have taken on the role of advocate have done so in a manner which has assisted both the court and the individual litigant, as, indeed, was the case in the present appeal. Although it may have become the norm at this appellate level to grant rights of audience, that should not greatly impact upon the altogether different issue of rights of audience at first instance, particularly in a fully contested hearing. Assisting a litigant to marshal and present arguments on appeal is a wholly different task from acting in the role of counsel in a trial.


The Court of Appeal recognised the vexed issues that this case threw up.


  1. Direct questioning of an alleged victim by the alleged perpetrator has long been considered to be a highly undesirable prospect by family judges. It was contemplation of that process which led Roderic Wood J to flag the problem up in the first place in H v L & R. In Q v Q and in Re K and H, the need to look for alternative acceptable means for cross examination led to the court sanctioning orders against HMCTS. It is clear that the experience of those judges who have felt forced to permit direct questioning from an alleged abuser is extremely negative. In very recent times Hayden J, in Re A (above) has concluded that, following his experience in that case, he is not prepared to contemplate repeating the process in any subsequent case. Hayden J’s clear and eloquent observations deserve wide publication:
    1. ’57. As I have made clear above it was necessary, in this case, to permit F to conduct cross examination of M directly. A number of points need to be highlighted. Firstly, F was not present in the Courtroom but cross examined by video link. Secondly, M requested and I granted permission for her to have her back to the video screen in order that she did not have to engage face to face with F. Thirdly, F barely engaged with M’s allegations of violence, choosing to conduct a case which concentrated on undermining M’s credibility (which as emerges above was largely unsuccessful).

58. Despite these features of the case, I have found it extremely disturbing to have been required to watch this woman cross examined about a period of her life that has been so obviously unhappy and by a man who was the direct cause of her unhappiness. M is articulate, educated and highly motivated to provide a decent life for herself and her son. She was represented at this hearing by leading and junior counsel and was prepared to submit to cross examination by her husband in order that the case could be concluded. She was faced with an invidious choice.

59. Nothing of what I have said above has masked the impact that this ordeal has had on her. She has at times looked both exhausted and extremely distressed. M was desperate to have the case concluded in order that she and A could effect some closure on this period of their lives and leave behind the anxiety of what has been protracted litigation.

60. It is a stain on the reputation of our Family Justice system that a Judge can still not prevent a victim being cross examined by an alleged perpetrator. This may not have been the worst or most extreme example but it serves only to underscore that the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.’

  1. Hayden J’s words demand respect, both because they come for a highly experienced family lawyer and judge, but also because of the force with which they were expressed following immediately upon first-hand experience of observing an alleged victim being directly cross examined by her alleged perpetrator and despite the significant degree of protection the court had sought to provide for her.



In deciding whether the Judge was wrong to refuse the McKenzie Friend rights of audience to conduct the cross-examination of the mother, the Court of Appeal decided that he was not


  1. In between the option of direct questioning from the alleged abuser and the alternative of questioning by the judge sits the possibility of affording rights of audience to an alleged abuser’s McKenzie Friend so that he or she may conduct the necessary cross examination. The possibility of a McKenzie Friend acting as an advocate is not referred to in PD12J and, as has already been noted, the guidance on McKenzie Friends advises that, generally, courts should be slow to afford rights of audience. For my part, in terms of the spectrum of tasks that may be undertaken by an advocate, cross examination of a witness in the circumstances upon which this judgment is focussed must be at the top end in terms of sensitivity and importance; it is a forensic process which requires both skill and experience of a high order. Whilst it will be a matter for individual judges in particular cases to determine an application by a McKenzie Friend for rights of audience in order to cross examine in these circumstances, I anticipate that it will be extremely rare for such an application to be granted.

  1. For the reasons that were given earlier, if the complaint in Ground ‘B’ is that the McKenzie Friend should have been permitted rights of audience in order to cross examine the mother and A, I do not consider that the judge’s decision is open to challenge on any basis. Such an application should rarely, if ever, be granted. The material before us falls short of establishing that there was a blanket policy in place in Manchester prohibiting the grant of rights of audience to McKenzie Friends to cross examine key witnesses. If the judge’s observations are no more than a report that, from his knowledge, such an application had never been granted in Manchester, then, on the basis of the view that I have expressed, that would not be surprising.
  2. If, on the other hand, the judge can be taken to have refused any rights of audience to the McKenzie Friend, on the basis that the local practice was never to grant any form of rights of audience, then, again for the reasons that I have given, the judge was in error. Each application for rights of audience should be determined on the basis of the specific factors that are in play in the individual case. Rights of audience may be granted for a particular hearing, or for a discrete part of a particular hearing, and a blanket policy of never granting such rights is not supported by the Practice Guidance or generally. Whilst it will be rare for full advocacy rights to be granted at a sensitive fact-finding trial, it may be an altogether different matter to permit a McKenzie Friend to address the court at a directions hearing.


The Court of Appeal did, however, find that the Court was wrong not to have resolved the factual dispute between the parties at a finding of fact hearing.  The appeal succeeded on that basis.


However, it was a pyrrhic victory, because the Court of Appeal ruled that because the children were still of the same strong views about contact as they had been 18 months earlier they saw no prospect of father re-establishing any contact (the children were now 16 and 11) and did not order a re-hearing.