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AI AI AI AI AI !

Posted on December 10, 2025 by suesspiciousminds

This is an appeal in private law proceedings following a finding of fact hearing. The mother in the case disagreed with the District Judge’s decision not to make findings of domestic abuse against the father. She lodged an appeal which was considered by a Circuit Judge and refused.

D (A Child) (Recusal) [2025] EWCA Civ 1570 (09 December 2025)
https://www.bailii.org/ew/cases/EWCA/Civ/2025/1570.html

After that, she wrote a letter to the District Judge asking him to recuse himself due to judicial bias

On 15 January 2025, the mother sent a letter to District Judge Hatton asking that he recuse himself from the proceedings. In the letter she wrote:
Enclosed in the letter was a document headed “Grounds for Recusal”, running to 60 typed, single-spaced pages, in which the mother set out at great length her complaints about the judge’s judgment and findings. The document quoted many passages from the judgment, each followed by the mother’s extensive challenges and criticisms. On many occasions, the mother introduced the criticism with the words “your judgment demonstrates bias”. Examples included the following:
“Your judgment demonstrates bias by misrepresenting the facts and dismissing evidence that clearly contradicts its conclusions.”
Your judgment demonstrates bias by dismissing clear evidence of a concerning pattern in [the father’s] persistent use of images of children, failing to critically analyse the implications of this behaviour within a safeguarding framework.”
“Your judgment demonstrates bias and a lack of contextual analysis by failing to adequately address the pattern of [the father’s] coercive and emotionally manipulative behaviour, that created a distressing environment and posed a risk both to my autonomy and the emotional well-being of our child.”
“Your findings that [the father’s] application arose from a ‘lack of effective communication’ demonstrates bias and is not based on fact.”
“Your judgment demonstrates bias by disregarding my detailed and consistent account of events ….”.
In the final paragraph of the document, the mother wrote:

“As a Judge, it is both your duty and right to ensure that findings are impartial, fair, and firmly rooted in the evidence presented. However, due to the significant misrepresentation of my evidence and the apparent bias reflected in your decisions, I contend that several erroneous and unjust findings have been made. These issues are underscored by the serious procedural irregularities detailed above. In light of these concerns, I respectfully request that Your Honour recuse yourself from this case to preserve the appearance and reality of judicial impartiality. The principle of natural justice, enshrined in R v. Sussex Justices, Ex parte McCarthy [1924] 1 KB 256, emphasizes that “justice should not only be done but should manifestly and undoubtedly be seen to be done.” In this case, the procedural handling has compromised the perception of fairness, making recusal a necessary step to uphold the integrity of the judicial process. I must reiterate, the test for apparent bias, as established in Porter v. Magill [2001] UKHL 67, requires that the court consider whether a fair-minded and informed observer would conclude there was a real possibility of bias. The cumulative effect of the procedural irregularities and the misrepresentation of evidence supports a reasonable apprehension of bias in this matter. Given these circumstances, I urge Your Honour to consider the principles of judicial fairness and impartiality and recuse yourself to ensure that justice is administered free from any appearance of prejudice.”

Next comes the paragraph of the Court of Appeal judgment which warrants this article

The document included a number of citations of reported cases. Some citations were correct and appropriate. As subsequently pointed out by the father’s counsel at the hearing before us, however, other cases cited were not authority for the propositions for which they were advanced and, in some instances, did not exist at all. At the hearing before us, the mother accepted that she has used artificial intelligence to assist her in preparing the document.

(they come back to this later, as the documents lodged before the Court of Appeal by the mother had also been assisted by Artificial Intelligence, and again the AI had hallucinated that some well-known cases were supportive of mother’s case when in fact they had nothing whatsoever to do with the issues and the quotations the AI cited were imaginary)

In reply, the mother, acting in person, submitted a lengthy skeleton argument responding in detail to every paragraph in Mr Spencer’s skeleton argument, describing much of it as factually inaccurate or incomplete and misleading. She reiterated many of her complaints and criticisms of the district judge’s judgment set out in her “grounds of recusal” document and her original grounds of appeal. The skeleton argument cited a number of authorities. As before, some citations were non-existent cases – for example “Re M (Paternity: Appeal by Mother) [2003] EWHC 2832 (Fam)”. Other cases were cited in support of a proposition for which they were not authority. For example, Re B (Children) [2008] UKHL 35, the well-known decision of the House of Lords on the standard of proof in children’s cases, was erroneously cited for the proposition that “the father’s conscious choice to ignore correspondence that did not assist his position demonstrates wilful evasion and further undermines his credibility”. Re W (Children) [2010] UKSC 12, the equally well-known decision on the principles which should guide the exercise of the court’s discretion in deciding whether to order a child to attend to give evidence in family proceedings, was cited for the proposition that “findings reached through a procedurally compromised process cannot stand”.

Finally, I return to the issue raised by the father’s representatives about the mother’s erroneous citation of authority (see in particular paragraph 54 above). I absolve the mother of any intention to mislead the court. Litigants in person are in a difficult position putting forward legal arguments. It is entirely understandable that they should resort to artificial intelligence for help. Used properly and responsibly, artificial intelligence can be of assistance to litigants and lawyers when preparing cases. But it is not an authoritative or infallible body of legal knowledge. There are a growing number of reports of “hallucinations” infecting legal arguments through the citation of cases for propositions for which they are not authority and, in some instances, the citation of cases that do not exist at all. At worst, this may lead to the other parties and the court being misled. In any event, it means that extra time is taken and costs are incurred in cross-checking and correcting the errors. All parties – represented and unrepresented – owe a duty to the court to ensure that cases cited in legal argument are genuine and provide authority for the proposition advanced.

For reasons that aren’t clear to me and weren’t clear to the Court of Appeal, following receipt of the mother’s letter asking the DJ to recuse himself, the DJ made an order recusing himself and noting that the mother had moved to a different area transferred the case to that area. The father had not been heard before the DJ made that order.

The mother then argued that her recusal application having succeeded that there should be an appeal granted of the findings made. The appeal was heard before a Circuit Judge who determined that the allegations of judicial bias had not been made out BUT that because the reasons for the DJ recusing himself were not clear, he would relist a final hearing.

Under the heading “The appeal”, the judge then set out his decision in the following paragraph:

27. Regarding the two grounds of appeal which were initially allowed I have carefully read the transcripts of the hearing, and the judgment. It is not the contents of the transcripts that make the judge’s findings unsafe, it is the context in which they were made. The judge has agreed he should recuse himself without saying why and for that reason, I cannot see how the judgment of District Judge Hatton can stand. Looking at the test for appeal, it seems to me that where a judge recuses himself in the face of allegations of bias and fails to give reasons how that bias is established, this amounts to a serious procedural or other irregularity arising from a process that has been adopted which is procedurally irregular and unfair to an extent that it renders the decision unjust. The judge has acted on a request made without the knowledge of the father and has then made a decision without giving reasons with the possible acceptance that he has behaved with bias throughout the three day hearing. This process adopted by the district judge lacks transparency and thereby, fairness. It must follow that any decision arising form that process must be set aside.”

The father appealed and the Court of Appeal considered that the order from the DJ recusing himself should be set aside BUT that leave having been granted to the mother for an appeal of two elements of the findings should still take place and that that aspect was allocated to a Circuit Judge to resolve.

AI is becoming a feature of family law and is likely to become more so, particularly for litigants in person. It is obviously attractive that a litigant in person can with careful prompts produce grounds for appeal and legal argument including references to authority that would be very hard to achieve even with many hours of careful research. But whilst the hallucination problem remains unfixed and AI simply hallucinates cases that doesn’t exists or cites real cases that simply don’t say what the AI quotes them as saying or deciding, it is really unsafe for anyone to rely on them without careful checking that the case actually exists and that it does genuinely say what the AI claims.

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An adoption horror story

Posted on October 17, 2025 by suesspiciousminds

I’m going to begin this story by saying that I’m talking here about a case in America, in the 1920s to 1950s. Obviously adoption is different over there, and a hundred years is a long time ago. But it is a shocking story, and despite thirty years in the profession it isn’t something I’d ever heard of until last month. It is a story of abuse of power, mistreatment of the vulnerable and how corruption spreads. We have to look into the abyss sometimes, and in doing so, the abyss looks back.

On the face of it, Georgia Tann was an extremely impressive woman. In a time when career opportunities and education weren’t easy for women, she got a law degree. Despite having a Judge for a father, she wasn’t able to get a job in law and went instead into one of the few professions open to educated women at the time, social work. She became the head of the Tennessee Children’s Home Society.

Also, at that time, adoption wasn’t really viewed as taking a child into your home to be part of the family and instead rather as having another pair of hands to do housework or manual labour on farms. Georgia was fundamental in changing that, and did a great deal to popularise adoption as being a way of taking children who needed homes and placing them as part of the family. She was one of the early pioneers of describing children and their personalities as a way of promoting families to come forward for them. She placed children with celebrities such as Joan Crawford and the attendant publicity really helped to turn around people’s ideas about adoption. Adoption became fashionable and desirable amongst the wealthy and influential, and that effect rippled outwards. She was described as the woman who invented adoption in America.

(The wrestler Ric Flair was a child who was adopted through the Tennessee Children’s Home)

Under her guidance, the Tennessee Children’s Home flourished. By way of example, in 1920 Boston placed only five children for adoption in a year, but in 1928 the Tennessee Children’s Home placed 206 children.

HOWEVER….

Georgia had a strong conviction that children from low-income families, particularly with single mothers, should be removed from them and placed with families of what she described as ‘the higher type’.

And her methods of securing children to be placed was, well, criminal.

For example, take the case of Alma Sipple. Alma was a single mother and her daughter Irma developed an illness. Georgia attended her home and told her that Irma was very sick and needed to go to hospital. Alma didn’t have insurance and couldn’t pay the medical bills, but Georgia had a solution for that. Alma could sign some paperwork and then Georgia would be able to use her own medical insurance to get Irma’s treatment. Alma agreed. Irma never came back.

Alma visited the hospital and was told by staff that her daughter had died. She asked to see her and was refused. The hospital staff were on the take from the Tennessee Children’s Home (whilst state arranged adoptions cost adoptive parents $7, the service from the TCH was charging their rich and keen clients as much as $5,000 – that’s about $81,000 today) and this was a very well-established technique. Alma was told that her daughter had been buried but nobody was willing to tell her where. She went to the police, who were also receiving bribes, as were the Judges stamping the adoption paperwork, and the police told her that the best she could hope for was to be charged with her intention to defraud the medical bills.

It took Alma until 1989 when watching a documentary to recognise Georgia Tann as the woman who stole her baby, and thankfully as a result, she and Irma were able to reconnect.

Irma was one of many children adopted by deception. Mothers would be told to sign paperwork whilst they were still groggy from anaesthesia post birth, and doctors would lie that they had been awake and fully competent when they signed. Sometimes children would just be snatched from the street.

Under Georgia’s command, the Tennessee Children’s Home was estimated to have stolen 5,000 babies. Nineteen children awaiting placements, or having been returned from placements that broke down, died of neglect and mistreatment at the Children’s Home and were buried at a local cemetary in a single large plot with no headstones.

In 2015 a memorial was put up, reading “In memory of the 19 children who finally rest here unmarked if not unknown, and of all the hundreds who died under the cold, hard hand of the Tennessee Children’s Home Society. Their final resting place unknown. Their final peace a blessing. The hard lesson of their fate changed adoption procedure and law nationwide.”

The exact number of children who died is unknown, but some estimates put the figure as high as 500 children. Many of the survivors talked of abuse and mistreatment by adopters – Georgia Tann had a very firm view that children under 7 would have no memories of their original families and sold that belief to adopters hard. When adopters found that those children were (to us very understandably) confused by their new names and traumatised by loss of families, they found that difficult to cope with and rejection and abuse happened far too often.

In 1950 an investigation began into allegations that the Tennessee Children’s Home was selling children for profit. Georgia died of cancer just three days before charges were filed – prosecutors estimated that she had made around a million dollars from child trafficking – around $16 million in today’s money. By that time, Georgia was the head of the Adopted Children’s Association of America.

That money corrupted and poisoned everything – every person who should have spoken out and stopped what was happening kept silent and took the money.

(I’m very grateful to episodes 116 and 117 of the Heart Starts Pounding podcast, which tells this story in a sensitive, vivid and compelling way, and to the Tennessee Children’s Home Society Collection, which keeps an archive of information to keep this vital story alive)

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Protect your source

Posted on June 12, 2025 by suesspiciousminds

This is an interesting case, although Ms Justice Henke makes it plain that it is fact specific (and that actually no decisions were made on the issue) so it is not intended to be a precedent.

In this case, a journalist sought to attend a hearing, and those representing father put into a case summary that they were seeking an order that the journalist should reveal who had contacted her. This was never actually pursued at the hearing, although a draft order including the provision was circulated and served upon the journalists.

The journalist asked the Court to confirm how this order had arisen – as set out above, it was not an order that was ever made.

Nonetheless the High Court set out the wider judgments as to why journalists sources are protected, that might not be widely known to family practitioners, and it is useful in that regard.

Tickle v The Father & Ors [2025] EWFC 160 (09 June 2025)
URL: https://www.bailii.org/ew/cases/EWFC/HCJ/2025/160.html

The Statement of Case provided by Ms Tickle and dated 21 October was written in response to the father’s initial position statement and the draft order. It sets out her understandably strong opposition to any journalist being ordered by a court to reveal their source. The reasons she gives are based firmly in the ethical code that all accredited journalists follow. She rightly took me to Telegraaf Media Nederland v The Netherlands (App 39315/06), paras [126]-[127] which states as follows:

“126. Under the terms of Article 10 § 2, the exercise of freedom of expression carries with it duties and responsibilities which also apply to the press. Article 10 protects a journalist’s right – and duty – to impart information on matters of public interest provided that he is acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism.

Protection of journalistic sources is one of the basic conditions for press freedom, as is recognised and reflected in various international instruments […] Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest.”

For the test Ms Tickle cited Goodwin v UK (App 17488/90) (1996) 22 EHRR 123, para [39]

“Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of Contracting States and is affirmed in several international instruments on journalistic freedoms. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 (art. 10) of the Convention unless it is justified by an overriding requirement in the public interest.”

I was also taken by Ms Tickle to British Steel Corporation v Granada Television Ltd [1981] AC 1096, 1129-1130 per Lord Denning MR in CA (appeal to HoL dismissed):

“The public has a right of access to information which is of public concern and of which the public ought to know. The newspapers are the agents, so to speak, of the public to collect that information and to tell the public of it. In support of this right of access, the newspapers should not in general be compelled to disclose their sources of information … The reason is because, if they were compelled to disclose their sources, they would soon be bereft of information which they ought to have. Their sources would dry up. Wrongdoing would not be disclosed. Charlatans would not be exposed. Unfairness would go unremedied. Misdeeds in the corridors of power — in companies or in government departments — would never be known. Investigative journalism has proved itself as a valuable adjunct of the freedom of the press … It should not be unduly hampered or restricted by the law. Much of the information gathered by the press has been imparted to the informant in confidence. He is guilty of a breach of confidence in telling it to the press. But this is not a reason why his name should be disclosed. Otherwise much information, that ought to be made public, will never be made known. Likewise with documents. They may infringe copyright. But that is no reason for compelling their disclosure, if by so doing it would mean disclosing the name of the informant.”

I accept the authorities cited by Ms Tickle accurately reflect the law.

As every journalist knows, the principle is that you protect your source at all costs, even if necessary being willing to go to prison rather than name them.

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Caesar’s wife and care proceedings

Posted on May 23, 2025 by suesspiciousminds

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But legally, more tricky.

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Private law costs order

Posted on March 4, 2025 by suesspiciousminds

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

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

Re E : Children: Costs 2025 EWCA Civ 183

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

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

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

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

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

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

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

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

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

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

Analysis and conclusion

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

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

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

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

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

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

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

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

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

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

To that extent, I would allow the appeal.

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Should Judges be anonymous? The Sharif Court of Appeal decision

Posted on January 24, 2025 by suesspiciousminds

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

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

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

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

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

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

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

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

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

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

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

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

Here’s the link to the appeal judgment

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

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

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

Anyway, here are the grounds for the appeal

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

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

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

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

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

The Judges in question were approached for their views:-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Posted on January 23, 2025 by suesspiciousminds

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

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

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

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

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

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

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

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

I think that this paragraph is significant :-

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

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

The national guidance says this :-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Setting aside an adoption order

Posted on January 17, 2025 by suesspiciousminds

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusions

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

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

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

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

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Adoption Support

Posted on January 14, 2025 by suesspiciousminds

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

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

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

Theis J summarises the issues accordingly

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

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

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

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

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

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

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

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

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

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

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

Theis J summarises the legal position regarding adoption support

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Posted on December 4, 2024 by suesspiciousminds

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

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

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

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

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

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

Here are some that I’ve really enjoyed

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

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

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

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

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

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

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

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

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

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

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

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

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

My god, they’re both so incredible.

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

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

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

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

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Posted in Uncategorized and tagged k-drama, kdrama, korean-drama, netflix, romance. Bookmark the permalink.

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