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Unconditional consent

This is an Appeal about a decision to make a Parental Order in a surrogacy case.

Re C (Surrogacy : Consent) 2023

https://www.bailii.org/ew/cases/EWCA/Civ/2023/16.html

In the original hearing, the woman who gave birth to the child had become more attached to the child than she had envisaged when she originally agreed to the surrogacy, and she was concerned that she would be shut out of the child’s life if a Parental Order was made. She was not legally represented at the hearing and it took place remotely.

The mother at the hearing had said that she would agree to the making of a Parental Order IF and only IF there was a Child Arrangements Order to specify that she would be able to spend time with the child.

Parental Orders are governed by the Human Fertilisation and Embryology Act 2008 and one of the requirements in making them is :-

Section 54(6), with which the present case is concerned, provides that:
“(6) The court must be satisfied that both —
(a) the woman who carried the child, and
(b) any other person who is a parent of the child but is not one of the applicants […],
have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.”

(There’s a s54(7) which allows the Court to waive parental consent only if the biological parent cannot be found, but that isn’t relevant for this case. )

Unlike say a Placement Order which the Court can make even if the parent objects if the appropriate legal test is met, there is no discretion for the Court on a Parental Order – if the criteria in s54(6) is not met, the Court cannot make the Parental Order.

The Court did make a Parental Order and a Child Arrangements Order that the biological mother should be able to spend time with the child. The mother later appealed. There is also ongoing private law litigation about contact.

The issue as to whether the consent has been given freely, with full understanding of what is involved and unconditionally is a matter for the Court, and it is understandable that the Court of Appeal wanted to look very carefully at the transcript of the hearing.

The hearing took place between 10.08 am and 10.30 am. We have been provided with a transcript and have also listened to the recording. It is necessary to set out some parts of the transcript to fairly understand the course of the hearing, with editing to maintain anonymity.
The effective part of the hearing started with an introduction from the Respondents’ counsel. She explained that the parties had agreed the terms of a child arrangements order, and although the court could not make such an order on its own initiative in the parental order proceedings, it could grant permission for an application to be made under the Children Act, and then make an order. However, she noted the requirements of section 54(6) and informed the judge that Ms A would be saying that her consent to a parental order was conditional on the making of a child arrangements order. Counsel nonetheless invited the court to consider making a parental order on the basis of Ms A giving her consent, with a child arrangements order being made “as a separate matter”.
After some consideration of the Children Act provisions and the proposed contact arrangements, the judge then addressed the Appellant:
“THE JUDGE: Ms A, Ms Maxwell has outlined the position to me and, as I think you probably know, there are a number of matters in the statute, section 54, that I have to be satisfied about and one of those Ms Maxwell has rightly reminded me is that you, freely and with full understanding of what is involved, agree unconditionally to the making of the order. If you only agree to the making of the order if there is a child arrangements’ order, then that would obviously not be freely and unconditionally given consent.
The other matters in the statute are all dealt with amongst the papers in particular and also in Mrs Chapman’s report, so I do not think any of those cause me a difficulty in making the order. The only one that does is the consent because, although I understand there is an agreement that there will be contact, and I will be asked to make a child arrangements order, I cannot do that as a condition of making the parental order. I can only make the parental order if you freely consent and without conditions, so, first of all, does that make sense to you, what I have just said? I know sometimes for a non-lawyer it gets a bit convoluted. You are nodding so that is helpful, thank you.
Then, I suppose, first of all, is there anything you want to ask me and then is there anything you want to say in response, as it were?
The Appellant then replied in these terms:
MS A: Thank you, your Honour, there is nothing I want to ask you but in terms of the condition, the unconditional consent, I think I would be lying if I said that I unconditionally consent to it because it is a– I would like to see C and so I am making the parental– the consent on that I see C. If I– I don’t unconditionally give it because I am fearful that I won’t have time to spend time with C and so that’s why I can’t quite unconditionally consent.
However, I do believe it is in all of our interests to move on with our lives and to kind of start rebuilding our relationship again and I do feel that having a child arrangements order is best for all of us along with a parental order being made, but I couldn’t lie and say that I do give my consent unconditionally. If that helps, your Honour.”
The judge responded at some length, starting in this way:

“THE JUDGE: Well, it is very clear and I fully understand what you are saying. It does not help me– and this is not a criticism of you, it does not help me get over the legal obstacle. Let me look at it in a different way and, please, let me be very clear, I am not trying to put any pressure on you at all because that would be wrong, because the whole point is that I make an order only if everybody consents… I cannot make a child arrangements order in this particular proceedings probably for very good reason, because if it was part of the issues, then it probably would not be freely consented to…
She then explained that she would be content to hear an oral application for a child arrangements order, saying:
“So in terms of trying to reassure you, I am told that application would not be opposed. You could make it orally once I have concluded the making of a parental order but I cannot make the parental order unless you do consent to it… — and if you do not consent, and again I am not saying this in any way to put pressure on you– sometimes it may sound a bit like that but of course if you do not consent, you will all be in this limbo moving forward until somebody attempts to make a different application which obviously the applicants may do but I cannot adjudicate on that in advance.
So we are in a slightly difficult position… I think you consent to the concept that the applicants are, as it were, C’s parents and that is recognised in law. I think the issue is one of concern about the way forward for contact, so– but unless I have you unconditionally consenting I think we cannot move on from this limbo, so I am not– try to think about what I have just said for a minute and while you are thinking about that, I am going to go to Mrs Chapman to see if she would like to add or say anything because I think apart from this difficulty she feels that the criteria are met but I just want to check with her.
The judge then turned to Mrs Chapman, who confirmed that the Appellant was happy with the parenting C was receiving but that she did not want to consent because she wanted a legal right to spend time with C and was scared of having no contact.
The judge then returned to the Appellant for these important exchanges:
THE JUDGE: … so, Ms A, we are in the position that as a matter of law and also considering C’s welfare, I think all of us agree that a parental order is the right thing for him. Everybody agrees that it is right for him to see you and to know you but it is just coming back to the original question, so having heard what has been said, what is your thinking now?
MS A: Then the only way forward is for me to give my unconditional consent, your Honour.
THE JUDGE: I am sorry?
MS A: I will provide my unconditional consent.
THE JUDGE: And you are quite sure about that?
MS A: I don’t see that there is any other way for us to move forward without it.
THE JUDGE: Well, I think that was the right decision and I think that is extremely helpful for everybody, for all of you and perhaps most importantly of course for C. I am very grateful to you and I expect the applicants are as well. So what I will do is I will make the parental order… Then in terms of a child arrangements’ order, now that the parental order has been made, everybody agrees that it is… right for Ms A to have contact and under the Children Act you can make an application or I can treat an oral application as having been made and given the amount of information I have about all of you, I do not need you to go through the normal process of getting enquiries from Cafcass because obviously I already have that information from Mrs Chapman, so I would be content to make a child arrangements’ order and Ms Maxwell has said that the agreed way forward is the every six weeks– I appreciate there will be a little bit more detail to this but every six weeks for a day, holidays and Christmas and– so that is her position. So from your side, Ms A, is that agreed by you as the way forward?
MS A: It is, yes.
THE JUDGE: In that case, I had better go back to Mrs Chapman in case from a welfare point of view she has any concerns. Mrs Chapman, from a welfare point of view for C would you be happy to endorse that order?
MRS CHAPMAN: Yes, I am happy to endorse that order.
THE JUDGE: So in that case that order will then follow, so we have a parental order and there will then be a child arrangements’ order. I think then I hope very much that all of you can relax a little after what has been quite a difficult time and move forward. C is going to be one soon and I think it would be very nice to move forward knowing all the decisions have been made, so if I go back to Ms Maxwell; Ms Maxwell, is there anything else you want to add?
MS MAXWELL: Your Honour, no, thank you very much.
THE JUDGE: Okay. Ms A, is there anything else you want to add?
MS A: No, thank you.
THE JUDGE: Well, thank you very much, and, Mrs Chapman, is there anything else you want to add?
MRS CHAPMAN: No, I have got nothing more to add, thank you.
THE JUDGE: Well, thank you very much for your help and my thanks to everybody for their help because I know it can be quite stressful in a situation like this, so I am very grateful to everybody for having achieved the right way forward for C…
Okay, thank you all very much for attending. I know it has been difficult for everybody and I can see for Ms A in particular, so I will thank you all for attending and I will let you all go now. Thank you very much everybody.
MS A: Thank you, bye.
THE JUDGE: Bye.”

My feeling when reading this exchange is that the mother had not freely and unconditionally consented at the outset, and that by the end of hearing she was saying that she did unconditionally consent although it is hard to see that she genuinely meant it.

The biological mother argued at appeal that she had not unconditionally consented, and that the division that the Court made of making the Parental Order with ‘unconditional consent’ on the basis that moments later an uncontested Child Arrangements Order would be made did not vitiate that lack of consent.

The carers were arguing that the Court was entitled to separate out the two orders and have them run sequentially in “sealed deliberations” and that therefore the biological mother’s consent was unconditional. They further argued that if the Court of Appeal was not with them on that, that s54(6) should be read as though the words “Such consent not to be unreasonably withheld” were added.

(This is apparently something which is currently being actively considered by the Law Commission who are looking at surrogacy)

The Court of Appeal set out their decision:-

There are three questions to be answered in this case. The first is whether, on a straight reading of s.54(6), the Appellant gave free and unconditional consent to the making of the parental order. The second is whether, if that is not the case, the Convention requires the court to assume and exercise a power to dispense with consent, and thereby to preserve the parental order. The last question is what order this court should make in respect of the underlying application for a parental order if the answer to each of the above questions is ‘No’.
The requirement that a person has “freely, and with full understanding of what is involved, agreed unconditionally to the making of the order” means exactly what it says. Although it may be forensically convenient to separate out the individual elements, what is required is a consent that is free, informed and unconditional. If that is achieved, it is immaterial whether the consent is given gladly or reluctantly.
Where there is any doubt about consent, it will be a matter for the court to judge, giving consideration to all the circumstances. One relevant factor is likely to be the means by which consent has been expressed. Because of the profound consequences of the underlying choice, it is normal for there to be a degree of formality. This is reflected in the preference in FPR 13(11) for consent to be in writing, using Form 101A and with the parental order reporter as witness. Even then, consent can be withdrawn at any stage before the order is made. This degree of formality is not mandatory but its absence should put the court on its guard to ensure that the proffered consent is valid. In the present case, the disputed consent was given orally in the face of the court and via CVP. In that unusual situation, a sharp eye had to be kept on the possibility that the court process might of itself be exerting pressure to the extent that any stated consent was devalued.

Further, although the hearing was conducted with complete courtesy, there were a number of other objective features to put the judge on her guard. In the first place this was a remote hearing in a sensitive case, with the Appellant being alone and unrepresented. The inevitable stress on any litigant was then inadvertently exacerbated by the way in which the Appellant found herself out on a limb, with her position on consent being represented as the only obstacle to an overall solution: “if you do not consent, you will all be in this limbo”. Also, an unrepresented litigant who is addressed by a judge at some length may be influenced by feelings of deference. Again, I recall that the judge was motivated by her assessment of what was in the best interests of C, the Respondents and indeed the Applicant herself. That welfare assessment was very probably sound but it had nothing to do with the question of consent. Had the resulting arrangements been satisfactory to all concerned, the problems with consent would no doubt have faded from memory, but the fact that the outcome has been so disappointing so far tends to show that the order was not built on solid foundations.
I would accept as a matter of principle that it is possible to conceive of a parental order and a child arrangements order coexisting. None of the reported cases has had that outcome, but they may not be representative of all problematic surrogacies. Some unproblematic surrogacies do not lead to parental orders at all, and contact with a surrogate will sometimes take place without any thought of a child arrangements order, even where a parental order has been made. However, in cases where there is less trust, there must still be a narrow path available to parties who genuinely agree that dual orders are the solution. While the statute does not envisage such orders, it does not expressly exclude them and to that extent I would accept Mr Vine’s submission that it might be possible for this outcome to be achieved. What the statute does, however, unequivocally exclude, in order to protect the surrogate, is twin orders in circumstances where one order is the price for the other. That is what occurred in this case.
For these reasons, the answer to the first question is that the Appellant’s consent was not merely reluctant but neither free nor unconditional. It was given in reliance on the promise of a child arrangements order and the Appellant’s statement that she gave it unconditionally did not reflect the reality. Furthermore, the eventual expression of consent was given under unwitting but palpable pressure. The parental order should not have been made.
Coming to the second question, I unhesitatingly reject the submission that section 54(6) can be read in such a way as to confer a dispensing power upon the court. The right of a surrogate not to provide consent is a pillar of the legislation and the assumption by the court of such a power would go far beyond permissible judicial interpretation of the kind found in A v P and in Re X. It is beyond doubt that the proposed setting aside of the parental order would clearly fall within the scope of the private and family life aspects of Article 8: Mennesson at paras. 87 and 96. However, the rights of the Respondents and of C are not violated by the setting aside of the order for want of consent on the part of the Appellant. The Strasbourg court has recognised a considerable margin of appreciation in this area and the potential availability of adoption to secure C’s legal relationships is also relevant, even if that route would be sub-optimal: Valdis Fjölnisdóttir v Iceland, Application no.71552/17, 18 August 2021. I would take this view even if this court were to make its own Article 8 assessment at the present date. I therefore conclude that the Convention does not require the parental order, made without valid consent, to be left in place.

The final question is what order should be made in respect of the underlying parental order application. The choice is between dismissing it or remitting it. I would look favourably on remitting if a parental order could possibly result from the parties being given another opportunity to take stock. I have noted that the judge might have adjourned the hearing for that purpose, and Ms Bazley has accepted that this option was open to her. But that was in the middle of 2021 and we are now in early 2023. In the meantime, relationships between the parties have deteriorated further, as the ongoing Children Act proceedings show. Even with the benefit of their current representation, the parties have been unable to devise a solution of their own. The Appellant’s position is that she will not consent to a parental order.
In these circumstances, I am driven to conclude that to remit the parental order application would perpetuate the process that led to the making of the original order. I would therefore allow the appeal and dismiss the application for a parental order. That C should be brought up by the Respondents and have contact with the Appellant was intended by all. It remains agreed by all that C will continue to be brought up by the Respondents, but the appropriate legal mechanism for that, and the question of contact with the Appellant are matters that are beyond the scope of this appeal.

I’m very glad that the Court of Appeal did not decide to read words into the statute which are not there – we’ve seen in recent years dilution of the statutory principle about only reasonable expenses being paid in surrogacy and about the time limits for making the application. If the Law Commission makes recommendations for changes that are approved by Parliament then so be it, but I personally don’t care for the Court amending statute to solve hard cases.

The family Court learning from criminal Courts

Trigger warning – this post contains discussion of the law around rape – I will not be going into any detail about allegations and confine the post to legal principles, but I’m aware that both the subject and the whole issue of how rape has been dealt with by the Courts may be triggering for some.

Over the last two years, the family Court has been rather tying itself up in knots about the interelationship between the criminal law about rape and how such cases are dealt with and how allegations of rape are dealt with in the family Court.

I’d thought that Re HN had largely resolved this, with this guidance

In Re H-N, the Court of Appeal was addressed at length by a wider range of parties and interveners than were present in these appeals on whether the family court should analyse factual issues within the criminal law framework. At [71], the Court of Appeal reaffirmed the general principle that:
“The Family Court should be concerned to determine how the parties behaved and what they did with respect to each other and their children, rather than whether that behaviour does, or does not, come within the strict definition of “rape”, “murder”, “manslaughter” or other serious crimes.”
At [65] of Re H-N, the President emphasised that there was a clear distinction between (a) family judges needing to have a sound understanding of the potential psychological impact that serious sexual assault may have on a victim’s behaviour, both during and after the event, and in the way that they may give their evidence and present in court and (b) family judges avoiding being drawn into an analysis of factual evidence based on criminal law principles and concepts. However, issues concerned with process in the family court such as the conduct of the hearing and the scope of cross examination could potentially draw upon good practice in the criminal court [74]:
“The distinction between a court having an understanding of likely behaviour in certain highly abusive settings and the tightly structured requirements of the criminal law will not, of course, be clear-cut. That is particularly so when the judge in the Family Court must conduct their own analysis of issues such as consent, and must do so in the context of a fair hearing. In this regard, the procedural manner in which the hearing is conducted and, in particular, the scope of cross examination of an alleged victim as to their sexual history, past relationships or medical history, justify consideration separately from the general prohibition in determining the substantive allegation. Nothing that is said in Re R, or endorsed in this judgement, should inhibit further consideration of such procedural matters. They are beyond the scope of this judgement and are more properly to be considered elsewhere.”

But Knowles J was asked in this case to give some further guidance

https://www.bailii.org/ew/cases/EWHC/Fam/2022/3089.html

Re A and Another v B and Others 2022

These were the issues the High Court was asked to give a view on :-

A) Whether the family court should apply a consistent definition of (i) rape, (ii) sexual assault or (iii) consent, making clear the difference between consent and submission;

B) Whether the failure to have a consistent approach to these issues was in breach of the Article 6, 8 and 14 rights of the Appellant mothers;

C) Whether the definitions of rape, sexual assault and consent used in the criminal justice system should be either a starting or finishing point for judges in the family court;

D) What the approach of the family court should be to a complainant’s sexual history when determining allegations of rape or sexual assault; and

E) Whether, when determining allegations of rape and/or sexual assault, judges in the family court should give themselves a warning about rape myths. Generally, such myths concern themselves with the behaviour or experiences of a complainant.

The Court addressed A) and C) together

23. In my view, the correct starting point is that the family court must not import criminal definitions as an aid to fact-finding. Its focus, as Re R and Re H-N made clear, is to determine how the parents of a child behaved towards each other so as to be able properly to assess risk and determine the welfare issues in each case. I note that Parliament recently passed the Domestic Abuse Act 2021 and, in so doing, expressly replicated in the family court some provisions applicable in the criminal courts, for example, in relation to cross-examination by litigants in person. However, Parliament declined to legislate for a framework in the family court within which to determine allegations of rape and sexual assault: it was not invited to do so during the passage of the Act. In those circumstances, it is difficult to conceive that this court might now attempt to do so.
At first instance, the family court determines allegations of rape and sexual assault without a legislative definition or framework. That is consistent with the purpose of a fact-finding exercise in family proceedings, which is to determine only such factual issues as are necessary to assess risk and to illuminate the welfare issues. That approach in private law proceedings is consistent with the approach in public law proceedings in which the family court conducts fact-finding in circumstances where, for example, a parent is alleged to have caused the death of a child, or where a parent is alleged to have inflicted injury on a child.
The Appellants placed reliance on examples of variable approaches taken by first instance judges sitting in the family court to the factual determination of allegations of rape or sexual assault. It is unnecessary for me to identify the judgments in issue since the relevance of those decisions was not the characterisation of behaviour by reference to concepts of consent or submission to sexual intercourse but rather that the court had accurately determined narrative findings which could inform the subsequent risk and welfare analysis. In that regard, I am very clear that the comments of the Court of Appeal at [71] in Re H-N are crucial in underscoring the clear distinction between the family and the criminal court, namely that:
“Behaviour which falls short of establishing “rape”, for example, may nevertheless be profoundly abusive and should certainly not be ignored or met with a finding akin to “not guilty” in the family context. For example, in the context of the Family Court considering whether there has been a pattern of abusive behaviour, the borderline as between “consent” and “submission” may be less significant than it would be in the criminal trial of an allegation of rape or sexual assault”.

It is my firm view that a focus on seeking to characterise or establish behaviour as meeting a particular definition runs the risk of the court becoming “unnecessarily bogged down in legal technicality” (see [29] of the decision of Cobb J in F v M (Appeal: Finding of Fact) [2019] EWHC 3177 (Fam) and [66] of Re R in the Court of Appeal). Applying criminal definitions narrows the court’s focus inappropriately away from the wider consideration of family relationships at play in a fact-finding hearing. In Re R, albeit in the context of findings of “murder” or “manslaughter”, McFarlane LJ identified at [62] the scope and purpose of a fact-finding hearing in the family court as follows:
“The focus and purpose of a fact-finding investigation in the context of a case concerning the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a Criminal Court. The latter is concerned with the culpability and, if guilty, punishment for a specific criminal offence, whereas the former involves the determination of facts, across a wide canvas, relating to past events in order to evaluate which of a range of options for the future care of a child best meets the requirements of his or her welfare…
… In family proceedings, the outcome of a fact-finding hearing will normally be a narrative account of what the court has determined on the balance of probabilities) has happened in the lives of a number of people and, often, over a significant period of time. The primary purpose of the family process is to determine, as best that may be done, what has gone on in the past, so that that knowledge the ultimate welfare evaluation where the court will choose which option is best for a child with the court’s eyes open to such risks as the factual determination may have established”.
Thus, a family judge must consider a “wide canvas” and scrutinise the family relationships – whether of adult to adult or adult to child – over a period of time in order to arrive at a factual determination relevant to both risk and welfare. Whilst I recognise the effort which Mr Metzer KC and Dr Proudman have invested in their framework for determining allegations of rape and sexual assault/abuse, that framework is too narrowly focused on the specifics of whether a sexual relationship is “willing” or not. In essence, it substitutes the word “willing” for “consent” and would be as prescriptive as applying the concepts used in the criminal courts. It is, in my view, too narrow a prism through which to view and investigate the true nature of an adult relationship.

The danger of adopting too narrow a focus on the sexual relationship between two adults was evident in the decision of the Court of Appeal in K v K [2022] EWCA Civ 468 where, amongst other matters, the Court of Appeal was critical of a family judge for failing to stand back and take account of the whole of the evidence before him. In [61], the Court of Appeal stated this:
“In this case, however, by failing to step back and take into account the whole of the evidence before him, the judge placed unjustifiable weight on the issue of whether the mother had had a conversation with the father about her unhappiness at his initiating sex when she was asleep. He elevated that issue into the determinative one, saying that if it were proved, the allegations would themselves be made out. The judge failed to bring the various points of challenge made by the father into his evaluation. Those failures meant that there cannot be said to have been a fair consideration of these important allegations from the father’s perspective. At no stage did the judge step back and consider the mother’s credibility in the round, bringing into account his findings that the mother had put forward false allegations of reporting to Dr C, of financial control, and (also) of isolation from her family when in fact the family had lived with her parents between 2004 and 2012.”
K v K is also of importance because it emphasised yet again what ought to be the focus of a fact-finding exercise in children cases where there are allegations of domestic abuse, namely whether the adult relationship was characterised by coercion and/or control. In [51] of Re H-N, the Court of Appeal was at pains to emphasise that “consideration of whether the evidence establishes an abusive pattern of coercive and/or controlling behaviour is likely to be the primary question in many cases where there is an allegation of domestic abuse, irrespective of whether there are other more specific factual allegations to be determined”. Barely a year after Re H-N was determined, K v K sought to clarify a perception that it was a requirement for a family judge to determine each and every allegation of domestic abuse during a fact-finding exercise. In robust terms, the Court of Appeal stated this was not the case and that a family court should determine “only those factual matters which are likely to be relevant to deciding whether to make a child arrangements order and, if so, on what terms” [67]. That steer from the Court of Appeal underscores my view that as wide a canvas should be brought to the determination of specific allegations of sexual abuse as is brought to any overarching allegations of coercive and controlling behaviour.
As to any criticism of PD12J for a failure to contain a framework to assist in determining specific allegations of sexual abuse, that is, in my view, misplaced. PD12J sets out a specific procedural framework for managing and determining allegations of domestic abuse within private law children proceedings. It includes definitions of the sorts of behaviour which constitute domestic abuse and general principles by which the court should be guided but, rightly, does not contain a detailed framework to assist the family court either in evaluating evidence or in determining what might constitute domestic abuse in an individual case. As I have already indicated, the inclusion of the type of framework advocated for by Mr Metzer KC would inappropriately narrow the court’s focus and run the risk of becoming a tick box exercise rather than a holistic evaluation of the evidence in a particular case.
I also acknowledge that there are examples of the family court analysing evidence by reference to principles established in the criminal court. Thus, the Lucas direction with respect to lies (R v Lucas (1981) QB 720) is firmly established as a principle in the family court and, when determining allegations as to whether an injury is inflicted, the family court not infrequently relies upon the guidance in R v Henderson and Others [2010] EWCA Crim 1219 and R v Cannings [2004] 2 Crim Ap Reports 63, namely that the court should resist the temptation to believe that it is always possible to identify the cause of injury to a child. Finally, in F v M [2021] EWFC 4, Hayden J had regard to s 76 of the Serious Crime Act 2015 when considering allegations of coercive and controlling behaviour. The first two examples do not concern definitions of criminal concepts or frameworks for establishing an offence. As Miss Fottrell KC submitted and I accept, these relate to the broader task of evaluating evidence more generally. Although in F v M, Hayden J considered the substantive framework for the offence of coercive and controlling behaviour, he analysed such behaviour by reference to the definitions contained in the FPR, specifically disapproving of an overly formulaic analysis which might tend “to obfuscate rather than illuminate” the nature of such behaviour within family proceedings (see [108]).
A recent example of the family court’s approach to allegations of sexual abuse within private law children proceedings is the case of Re B-B (Domestic Abuse: Fact Finding) [2022] EWHC 108 (Fam). This judgment followed a re-hearing of allegations of domestic abuse following the Court of Appeal’s decision to allow an appeal against the original first instance decision (see Re H-N at [78]-[115]).

Thus, for the reasons set out above, I reject the need for the family court to apply consistent definitions of rape, sexual assault, and consent. I also hold that the definitions of rape, sexual assault, and consent used in the criminal justice system should have no place in the family court.

The Court considered the Article 6, 8 and 14 rights point B) at paras 33 and 43 of the judgment and concluded that there was no basis for concluding that the approach of the family Courts in relation to allegations of rape or sexual assaults was a breach of those rights.

In relation to D) – guidance about introduction of evidence of sexual history, the Court was in agreement that some guidance would be beneficial – Practice Direction 12 J did not provide specific guidance on these matters.

Having reflected on the invitation to give some guidance on this issue, I do so mindful of the comments in [74] of Re H-N which did not inhibit further judicial consideration of procedural matters such as the scope of cross-examination of an alleged victim as to their sexual history and past relationships. The framework I offer for determining these issues is firmly grounded in the established approach to evidence in the family court.
My starting point is that the established approach to evidence in the family court can accommodate circumstances in which a parent, either making or facing allegations of sexual abuse, seeks to adduce evidence of the other person’s sexual history, or their own sexual history or their shared sexual history. To summarise, this involves the following process:
(a) An assessment of the relevance of the evidence for which permission is sought to be adduced, having regard to the need for the court to consider the “wide canvas” of evidence;

(b) Thereafter, where objection is made to such evidence being adduced, a balancing exercise as to the competing interests and Convention rights involved;

(c) At all times, consideration of the breadth of the court’s powers to control the manner in which evidence is to be placed before it.

Going into more detail as the process, the High Court said this:-

When considering these matters, the first step must be to consider the admissibility of the evidence in question. Admissibility is determined by relevance and the question of relevance is one of fact, degree, and proportionality (see [23] of Dunn v Durham County Council [2013] EWCA Civ 1654).
When considering the question of relevance and evaluating the weight to be afforded to evidence which crosses that threshold, the family court applies well established principles, many of which were developed in the context of public law proceedings, but which are equally applicable to private law proceedings:
(a) The court must consider the “wide canvas” of evidence.
(b) Evidence cannot be evaluated and assessed in separate compartments but must be considered in its totality. The court must consider each piece of evidence in the context of all the other evidence (see [33] of Re T [2004] EWCA Civ 558 per Butler-Sloss P).
(c) The decision on whether the facts in issue have been proved to the requisite standard must be based on all the available evidence and falls to be assessed against the wider context of social, emotional, ethical, and moral factors (see [44] of A County Council v A Mother, A Father, and X, Y and Z [2005] 2 FLR 129).
(d) The assessment of credibility generally involves more than mere demeanour, the latter being mostly concerned with whether the witness appears to be telling the truth as s/he believes it to be. Memory becomes fainter with every day that passes and the imagination becomes correspondingly more active. Thus, contemporary documents are always of the utmost importance (see [29]-[30] of A County Council v M and F [2012] 2 FLR 939).
The second step, where a party objects to the admission of otherwise relevant evidence, is to undertake a balancing exercise. Though determined in the context of an application for disclosure against the local authority, the approach articulated by Maurice Kay LJ at [23] in Dunn v Durham County Council is the correct one. It was followed by MacDonald J in R v Secretary of State for the Home Department (Disclosure of Asylum Documents) [2019] EWHC 3147 (Fam). I observe that the Court of Appeal in Secretary of State for the Home Department and G v RH [2020] EWCA Civ 1001 at [52]-[54] endorsed the approach to disclosure taken by MacDonald J and confirmed that it had application to a wide range of documents where disclosure was sought in family proceedings.
The approach in Dunn v Durham County Council is as follows [23]:
“What does that approach require? First, obligations in relation to disclosure and inspection arise only when the relevance test is satisfied. Relevance can include “train of inquiry” points which are not merely fishing expeditions. This is a matter of fact, degree and proportionality. Secondly, if the relevance test is satisfied it is for the party or person in possession of the document or who would be adversely affected by its disclosure or inspection to assert exemption from disclosure or inspection. Thirdly, any ensuing dispute falls to be determined. We determined ultimately by a balancing exercise, having regard to the fair trial rights of the party
seeking disclosure or inspection and the privacy or confidentiality rights of the other party and any person whose rights may require protection. It will generally involve a consideration of competing ECHR rights. Fourthly, the denial of disclosure or inspection is limited to circumstances where such denial is strictly necessary. Fifthly, in some cases the balance may need to be struck by a limited or restricted order which respects a protected interest by such things as redaction, confidentiality rings, anonymity in the proceedings or such other order. Again, the limitation or restriction must satisfy the test of strict necessity.”

53. Insofar as an application might be made by an alleged perpetrator of sexual abuse to adduce evidence of a complainant’s sexual history with another individual, I find it difficult to envisage circumstances in which this would satisfy the test of relevance. How might such evidence about behaviour with person A make a complainant’s allegation of rape or sexual assault against an alleged perpetrator, person B, more or less probable? In making that observation, I do not intend that this should operate as an absolute bar on adducing such evidence since it is ultimately a matter for assessment by a particular court dealing with a particular case
More complicated is the question of relevance in relation to evidence of a complainant’s sexual history with the alleged perpetrator. The fact that adult parents had previously or subsequently engaged in consensual sexual activity of any sort does not mean that they were not raped or sexually assaulted on another occasion. However, evidence as to the parents’ sexual relationship may be logically probative of an allegation of partnership rape or sexual assault. Thus, communications between the parties of a sexual nature may well be relevant as may communications between them either before or after the relevant incident or time period. That approach is in keeping with the court’s obligation to consider the wide canvas of evidence and its duty to have regard to patterns of behaviour – both of the complainant and the alleged perpetrator – as described in Re H-N. It does not give an alleged perpetrator permission to produce any material that they wish if it is irrelevant and, if relevant, where it fails to meet the approach articulated in [23] of Dunn v Durham County Council.
Mr Metzer KC invited me to state that there would be a strong presumption against the admission of evidence relating to a complainant’s sexual history with an alleged perpetrator and to declare that the circumstances should be exceptional. I decline to do so. First, that approach runs contrary to current practice in the family court which has been centred on relevance and is free from presumption or starting point. It also runs contrary to the basic principle that, by adopting an inquisitorial approach, the court requires the best relevant evidence before it to assess both the risk posed by a parent or the welfare best interests of the child. Second, and practically speaking, the Appellant’s approach runs the risk of depriving the court of evidence relevant to its factual determination. I observe that there may well be circumstances in which evidence of sexual history as between partners is relevant to the court’s assessment of the dynamic, their respective patterns of behaviour and the nature of their relationship.
Based on the analysis above, I do not regard it as necessary for a party wishing to rely on evidence of sexual history between partners to make a specific application to the court for permission to do so. Practically speaking, this would add complexity and cost to already contentious children proceedings where a high proportion of litigants are self-representing.
Though not addressed in either the written or oral argument because it is not a matter at large in these appeals, I note that a complainant may wish to adduce evidence of an alleged perpetrator’s sexual history with other individuals to demonstrate a pattern of allegedly abusive behaviour (such evidence being described as similar fact evidence). The Court of Appeal in R v P (Children: Similar Fact Evidence) [2020] EWCA Civ 1088 set out the approach to be taken to the admissibility of such evidence at the case management stage in [19], and [23]-[24], emphasising the test of relevance and the need for the court to have available the best evidence to illuminate the subtle and persistent patterns of behaviour involved in coercive control, harassment and stalking.
In conclusion and to assist family judges in their case management task, I offer the following procedural framework, loosely based on that I articulated in Re M (A Child) (Private Law Children Proceedings: Case Management: Intimate Images) [2022] EWHC 986 (Fam), namely:
(a) If a party wishes to adduce evidence about a complainant’s sexual history with a third party, a written application should be made in advance for permission to do so, supported by a witness statement;
(b) It is for the party making such an application to persuade the court of the relevance and necessity of such material to the specific factual issues which the court is required to determine.
(c) Any such application will require the court’s adjudication preferably at a case management hearing.
(d) The court should apply the approach set out above at [45]-[49].
(e) If a party wishes to rely on evidence about sexual history between partners, they do not need to make a specific application to do so unless reliance is also placed on intimate images. In those circumstances, the party must issue an application in accordance with the guidance at [77]-[78] in Re M (Intimate Images).
(f) If a party objects to evidence of sexual history between parents/parties being filed, it should make an application to the court in advance, supported by a witness statement explaining why this material is either irrelevant or should not be admitted.
(g) Any such application will require the court’s adjudication preferably at a case management hearing.
(h) The court should apply the approach set out above at [45]-[49].

Finally, and probably the most interesting, the “rape myths” point. Should the Family Court Judge give themselves a similar reminder about some of the common misconceptions surrounding rape and alleged rape that a criminal Judge would give to a jury to provide valuable context?

Proposition 5: Whether, when determining allegations of rape and/or sexual assault, judges in the family court should give themselves a warning about rape myths. Generally, such myths concern themselves with the behaviour or experiences of a complainant.

Mr Metzer KC submitted that family court judges needed to have a full understanding about the types of rape myths/stereotypes which had been pervasive in the judicial system for a long time. He noted that Crown Court judges were advised to give specific directions to juries about the types of stereotypes which were common in cases of sexual assault. He drew my attention to the relevant passages of the Equal Treatment Bench Book (July 2022), to the Crown Court Compendium and to the Crown Prosecution Service Guidance found at “Rape and Sexual Offences – Annex A: Tackling Rape Myths and Stereotypes”. The latter guidance contained a comprehensive list, outlining various rape myths by category and which contained subsections dealing with intoxication, victim behaviour, sexual history, inconsistent accounts and a victim’s response to sexual assault. The CPS Guidance is a dynamic document which is regularly updated in accordance with new case-law. Mr Metzer KC submitted that this Guidance would be a useful starting point for judges to remind themselves of rape myths and stereotypes before and during any fact-finding exercise.
In response, Miss Fottrell KC noted that family judges are now required to have Judicial College training in relation to sexual assault awareness as well as to attend extensive training programmes on domestic abuse. If this court considered that there were further training issues which may benefit family judges, the appropriate course was to bring this to the attention of the head of the Judicial College, Lady Justice King. However, if the court considered that the CPS guidance and the Equal Treatment Bench Book were useful, it was invited to say so for the benefit of judges in the family court.
None of the other advocates suggested anything markedly different from the submissions made by Mr Metzer KC and by Miss Fottrell KC. All the advocates accepted that, anecdotally, family judges not infrequently directed themselves as to rape myths and stereotypes.

I have reflected very carefully on what it is appropriate for me to say on this matter. Judicial training is a matter reserved to the Judicial College. In my view, the College is best able to assess what training is needed for family judges determining factual disputes between parents about the nature of their relationship, especially where those disputes concern allegations of sexual assault. In that regard, I note that the Court of Appeal highlighted the training available to family judges in [67]-[68] of Re H-N as follows:
(67) Following the judgment of Russell J and at the request of the President, the Judicial College devised a freestanding sexual assault awareness training programme for Family judges. The programme draws heavily on the successful “serious sexual assault” programme for criminal judges. Since July 2020, it has been a mandatory requirement for all judges who hear any category of Family cases to undertake this programme. The programme, which is under constant review, includes elements in respect of psychological reactions to sexual assault and trauma, and has the benefit of contributions having been made by a number of victims of sexual assault discussing the impact that an attack has had upon them. In addition to the more general training in relation to domestic abuse, which is already in place for Magistrates, bespoke training suitable for the work they undertake in respect of sexual assault and trauma is in the process of being developed.

(68) This bespoke Family training these in turn into, and is further developed within, the extensive training programmes that are run in relation to domestic abuse by the Judicial College for the fee paid and salaried judges. These courses have been in place for some years and play a key role in both induction courses for newly appointed Family judges and continuation courses run for Family judges who are already in post.

On the basis that I have found what follows of assistance in my own practice as the lead judge for domestic abuse, I draw the attention of family judges to Chapter 6 of the Equal Treatment Bench Book (July 2022) entitled “Gender”. Under a subheading entitled “Sexual Offences: Who is Affected?”, there is information about sexual offences which includes several paragraphs addressing rape myths which may feature in criminal proceedings (see [74]-[91]). Though written to assist those sitting in the criminal courts, there is much in that section which family judges may find useful. The Equal Treatment Bench Book is publicly available on the judiciary.uk website at Equal Treatment Bench Book July 2022 revision (2) (judiciary.uk). Likewise, the CPS Guidance on Rape and Sexual Offences at Annex A provides a comprehensive guide to the unhelpful stereotypes which may cloud judicial thinking in cases involving sexual assault. It too is publicly available on the cps.gov.uk website and was last revised in May 2021: Rape and Sexual Offences – Annex A: Tackling Rape Myths and Stereotypes | The Crown Prosecution Service (cps.gov.uk).

I have also come to the view that I should not produce a list of common rape myths or stereotypes or attempt to craft a standard self-direction about sexual assault stereotypes which a family judge might give her/himself. No list would be comprehensive. Further, it would run the risk of creating a rigid framework to which adherence would be given. That would deprive a family judge of the flexibility to think about what is apposite in the particular case, having been appropriately trained to recognise unhelpful stereotypes, and should they consider it necessary to do so, for a family judge to draw attention in her/his judgment to the manner in which they have guarded against applying any relevant stereotypes. Secondly, any self-direction I might devise would be equally inflexible because it cannot encompass the great variety of stereotypical thinking outlined, for example, in the two sources to which I have referred.

Finally, Mrs Justice Knowles, did remark that in cases where findings of fact are made it is helpful to ensure that they are recorded in writing and ideally appended to the order made.

Finally, I have already commented on the failure by the judge to either produce his own schedule of findings or, if what I was told was correct, to endorse the schedule drafted by counsel. He was not alone in so doing, as the judge in the ABC appeal also failed to produce her own schedule of findings (though one was later produced by counsel at her invitation and attached to her order). Paragraph 29 of PD12J requires a schedule of findings to be attached to the court order following a fact-finding determination. In my view, it is desirable that, with the definitions of domestic abuse contained in PD12J firmly in mind when doing so, a judge produces her/his own schedule of findings, either incorporated into the body of a judgment or appended to its conclusion. That course avoids any lack of clarity about the detail of what the judge found, and any schedule can then be incorporated in or appended to the court’s order. I make this suggestion fully conscious of the pressures on the family judiciary engaged in what can often be a relentless train of successive fact-finding determinations, but it is not intended to make the task of judgment writing more difficult. On the contrary, I hope it represents good practice which may help to illuminate a judge’s evaluation of the evidence and to inform their ultimate findings.

Gender of ISW

This is a Court of Appeal decision arising out of a case management decision in private law proceedings. The father appealed a case management decision to instruct a female ISW, on the basis that it was a breach of his human rights – notably his article 9 rights to freedom of religious expression.

N (A Child), Re (Instruction of Expert) [2022] EWCA Civ 1588 (06 December 2022)

https://www.bailii.org/ew/cases/EWCA/Civ/2022/1588.html

I do slightly wonder why permission to appeal was given here (it is EXTREMELY hard to successfully appeal a case management decision ) , particularly given that the appeal process meant that the final hearing listed in the case had to be adjourned but the case does throw up some interesting elements.

The parents were both raised as members of the Hassidic Haredi Orthodox Jewish community, the father in the United States of America, the mother in England. In 2013, they underwent an arranged marriage in Jerusalem and thereafter lived together in Israel. In November 2014, the mother gave birth to A.

Within the proceedings, the mother was making complaint that some of the father’s religious practices due to his strict religious observance was making her home life intolerable. Within her complaint she raised that the father showed discomfort in the presence of women, including sometimes herself.

The Court was asked to approve the instruction of an expert to undertake an assessment of the family. The father had originally put forward a female ISW with a background in undertaking assessments of people within the orthodox Jewish faith. The application only put forward one ISW. The mother opposed this because she said :-

In her position statement, the mother’s counsel objected to the appointment of Ms Leifer, stating:
“The mother is concerned that Ms Leifer is associated with Ezer lyoldos, a Charedi organisation which works strictly within the Charedi community. This raises concern that she may be a biased choice. The Part 25 application does not propose any other expert which is unusual. The mother would prefer Cafcass to carry out the report as they are more likely to offer a neutral standpoint.”

The Judge agreed that enquiries should be made of CAFCASS to see if they had any workers with experience of carrying out work within the Orthodox Jewish community.

That didn’t really come to anything and thus both parents put forward alternative ISW experts. The father was putting forward a man, and the mother two women.

The Court decided to instruct one of the female experts.

The father appealed on the basis that :-

the order permitting the instruction of a female social worker is an infringement of his human rights.

Within the appeal, the father asserted that the Court’s case management decision was an infringement of both his article 6 right to fair hearing and article 9 right to freedom of religion and right to manifest his religious beliefs.

The Court of Appeal considered the issues in the case and broadly determined that the process that the trial Judge had followed to reach the decision was appropriate. They took into account that no evidence in relation to article 9 had been placed before the Court at first instance and that it had been raised only in submissions – and that certain steps by the father (not least the initial identification of a female ISW) undermined an assertion that only a male ISW could undertake the work without infringing father’s article 9 rights.

There was nothing in any document filed in the proceedings before the hearing on 20 July to suggest that the father objected to the instruction of a female independent social worker on the grounds that such an appointment would compromise his ability to engage in the proceedings due to his beliefs or that it would therefore be a breach of his right to a fair hearing under Article 6 and his right to manifest his religious beliefs under Article 9. It was only in oral argument before the judge that the father’s counsel suggested that given the father’s beliefs the appointment of a woman would be a breach of his Article 6 rights. This assertion was unsupported by any evidence filed by the father and undermined by a number of steps taken on his behalf in the course of the proceedings. In those circumstances, the judge was entitled to reject it.
In these circumstances it is not necessary to say whether it could ever be right to specify an expert of a particular gender. I do not, however, rule out the possibility that such an order could be justifi
ed. As ever, all will depend on the circumstances. Justice requires the court to adopt a procedure which pays due respect to persons whose rights are significantly affected by its decisions. It is, however, imperative that any application that the expert instructed be of one specified gender must be clearly explained and fully supported by evidence demonstrating why such a stipulation should be included.

King LJ in her judgment set out the Court’s powers to take creative steps to assist vulnerable persons in ensuring that their evidence can be given as fairly as possible and drew the parallel that the same can apply to assessments to be carried out.

I agree that the appeal should be dismissed for the reasons given by Baker LJ and Dingemans LJ. I would only add a little about the extensive case management powers available to judges which allow them to conduct proceedings in such a way as to give proper respect to the views and/or beliefs of those who appear before them, whilst at the same time ensuring that justice is achieved.
The well-known and well established ‘overriding objective’, found at FPR 2010 r.1.(1) is the procedural code designed to enable the court to deal with cases justly, having regard to any welfare issues involved.
The balance of the rule amplifies the proper approach to be adopted in order to achieve the overriding objective. This includes at FPR r.1.4(1) the requirement that the court “must further the overriding objective by actively managing cases”. The rule goes on at FPR 1.4(2) to set out 13 matters of active management which include at FPR r.1.4(2)(5) “controlling the use of experts” and at FPR 1.4(3) a total of 16 examples of the court’s case management powers which are in addition to those given by virtue of any specific enactment.
It is against the backdrop of these extensive powers of case management that, as noted by Baker LJ at paragraph 37, the appeal courts have repeatedly emphasised their reluctance to interfere with case management decisions made by a judge at first instance.
Those who drafted the Children Act 1989, and the judges at all levels who have sought to interpret it, have been conscious that in order to achieve the best possible outcome for children, whether in private or public proceedings, their parents and carers must be placed in a position so as to enable them to give their best evidence.
Statutory examples include s98(2) Children Act 1989 which provides for a statement or admission made in care proceedings not to be admissible in evidence in proceedings for an offence other than perjury. In Re X (Disclosure of Evidence) [2001] 2 FLR 440, Munby J, in that context, emphasised that the interests of a child are served by encouraging frankness and the importance of encouraging people to tell the truth in cases concerning children.
A further, but very different, example is the use of intermediaries and of physical special measures (screens, separate entrances and the like) designed to enable those who are vulnerable or victims of domestic abuse to attend court and to give their best evidence. The FPR r.3A.4 and r 3A.5 specifically require a court to consider “whether the quality of evidence given by a party or witness is likely to be diminished by reason of vulnerability”.
In Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948 (para 36), Baroness Hale referred to the flexibility inherent in family proceedings and said that “The court’s only concern in family proceedings is to get at the truth. The object of the procedure is to enable witnesses to give their evidence in the way that best enables the court to assess its reliability”.
In Re S (Practice: Muslim Women Giving Evidence), [2006] EWHC 3743 (Fam), [2007] 2 FLR 461, Macur J made arrangements by way of screens and the ingenious use of a large umbrella, so that she could see the witness, but that the litigant’s male counsel would not be able to see his lay client. In this way the Muslim woman litigant, who was accustomed to wearing the veil, was able to remove her veil whilst giving oral evidence. Macur J stressed the importance of witnesses in family cases being able to present their evidence to the satisfaction of the court. Macur J however also sounded a note of caution, saying that “Each case must obviously be looked at in its own circumstances, and the court must be alert to any opportunistic attempt to derail proceedings”.
The need to obtain the best possible evidence applies equally to that part of proceedings which takes place before the hearing, whether in the form of assessments or the commissioning of expert’s reports. The court has at its disposal the raft of case management powers referred to above which will enable it to find creative solutions to any difficulties which may be thrown up as Macur J did in Re S and as did the appellant in the present case. The court was informed that the appellant had used an intermediary and a telephone, without a video link, in order to enable him to give instructions and to take advice from his female solicitor.
As highlighted by both Baker LJ and Dingemans LJ the court will not however be in a position to utilise these case management powers in order to identify a way around a potential problem unless and until the problem in question has been properly identified, put before the court and where necessary, evidence adduced in relation to the same.

Relaunch the PLO – 26 weeks back again?

The President of the Family Division has published the latest View

The link doesn’t seem to work so it is

https://www.judiciary.uk/guidanceandresources/a-view-from-the-presidents-chambers-november-2022/

Basically as all of us working in Family Justice know, due to the immense pressures on the Court service anyway and exacerbated by the Covid pandemic – which took Tier one out of the picture for two years and caused a huge backlog, in many cases now where the evidence is all gathered and ready for final hearing it is taking four-six months to get a final hearing.

That knowledge had a knock-on effect – what was the value in professionals busting a gut to get all of the evidence ready by a week 20 IRH when there was NO possibility whatsoever of getting a final hearing in the 6 weeks after that to hit 26 weeks?

And so drift came back in to the system.

The President is now saying, this is the time to restart thinking about 26 weeks and trying to achieve it. I don’t know where they are magically going to summon up Judges to clear the backlog of cases (frankly, it probably requires a year of getting every single Recorder with a care ticket to sit more or less full time, to get rid of those and allow a clean start)

But the President does have some suggestions – really centred around the issue that if you take directions hearings out, or at least greatly reduce them, you’ll have more space in the diary for final hearings.

So, the big ideas are :-

  1. Care proceedings should have 3 hearings only. The third one should be the final hearing. I.e, you have an ICO hearing/CMH, an IRH and a final hearing. If you reduce the number of hearings that have to be squeezed into a Court diary, then more of the space available in that diary can be used for final hearings, so you’ll wait less time for one.
  2. Parents are to identify alternative family members for assessment by the time of the CMH (or within a week of it). At the moment, I think that the delay in care proceedings is generally at the IRH-waiting for final hearing stage, rather than the being ready for IRH stage, but it would obviously be better to identify family members and do that assessment as early as possible. I’ve been talking about the “Auntie Beryl” problem for years – that it is at the point where parents realise that adoption is being recommended that they really dig deep into family and find someone who would offer to be assessed, and is a Court ever going to turn down a realistic proposal that comes in late – especially with the Re B-S and Re B guidance about adoption being “nothing else will do”. I think this is a good proposal, but we’ve heard it all before, and are Judges genuinely going to be backed by the Court of Appeal if they refuse assessments of family members put forward at week 18? (and even if they do, is that actually a good thing?)
  3. Cut down on experts – the statistics apparently are that expert instructions have gone up 33% since 2016. I wonder what proportion of that are having to do updating hair strand tests because the final hearing is months later than hoped for. It’s probably no bad thing to remind everyone of the strictures of Part 25 and it does seem over the last few years that we’ve drifted back to a feeling of experts being the norm rather than the exception.
  4. Limiting the issues to be considered by the Court at final hearing – is threshold satisifed, where should the child live, what are the contact arrangements, what final orders should be made? That’s what the Children and Families Act 2014 said the Court HAD to consider at final hearing, but in practice it has been difficult. What is a Court to do where the plan is, for example for a parent and child to move from a parent and baby placement into the community but the housing is simply not available?
  5. Robust case management and focus on compliance with orders, making every hearing count and so on.

Without the ability to pump more resources into the system – which isn’t within the President’s gift and if anything the direction of travel with public finances will be less resources rather than more, these are all sensible practical proposals to do more with what we have.

I suspect we’ll also see much stricter marshalling of Court resources when setting time estimates for final hearings – advocates may have to really be able to justify their time estimates for witnesses and I suspect there will be a downward pressure to make 5 day hearings fairly exceptional, and 3-4 days becoming the norm. That obviously makes it harder for the judiciary because reading time and thinking time to construct the judgment within working hours becomes harder to hang on to.

If I had a magic wand, these would be my two additions.

  1. When the case is issued by the Local Authority, the Court find a 3 day final hearing slot between weeks 20 and 26 at the time of issue, or as close to it as can be managed. If those days end up not being needed, so be it, they can always be used for something else (the cases that go 4 or 5 days instead for example), but everyone starts the case KNOWING when the case should conclude. Probably at the moment, those final hearing dates are 9-10 months away, but as we work through the new batch of cases the time lag between IRH and final hearing comes down. Until we can have honest and robust conversations about the lag between IRH and final hearing, we can’t really address this central problem in cases. (I’ll make it plain – it isn’t the Court’s fault that it takes so long to get a final hearing, it is a symptom of overwork and under-resourcing)
  2. I would honestly nuke the ADM as a gatekeeper for Local Authorities making Placement Order applications. If the Local Authority are wrong in seeking adoption as the plan, let that be thrashed out before the Court and the Court make the decision. What’s the benefit of building a 2-3 week hold-up in care proceedings to allow an internal Local Authority piece of gatekeeping when the Court is going to make the decision anyway? This is nothing against ADM’s who are good people and work hard but if the decision on ASKING for a Placement Order sat with the social work manager (or the next tier of management), would that genuinely make things any worse for the child? The unsatisfactory applications will be refused by the Court in any event.

Pitiless detail

This is an interesting High Court decision delivered by Mostyn J, about the need (or not) for a fact finding hearing when the parent concedes that threshold is met.

That’s always a bit of a vexed question, so any case on the point is always interesting.

In this case, the mother was in agreement that her child, her second child, be made the subject of a Care Order and a Placement Order and agreed that threshold was crossed. The Local Authority considered that the threshold concessions she had made were ‘anodyne’

Mr Sampson QC described her admissions as “anodyne”. Ms Heaton QC described her admissions as “vacillation”, and said that she had “effectively skirted around or not addressed the central findings sought

In very broad and overly-simplistic terms, the mother was accepting a lot of described content in the threshold but not accepting that it amounted to FII or that she was a person who had or was likely to inflict FII (Fictitiously Induced Illness , or where a person manufactures medical symptoms in another so that they have to receive medical treatment)

The Local Authority sought a 5 day fact finding hearing.

Mostyn J considered the general legal principles and the specific family law principles, arising from two Court of Appeal cases – Oxfordshire County Council v DP & Ors [2005] EWHC 1593 (Fam) and Re H-D-H and C (Children: Fact-Finding) [2021] EWCA Civ 1192[2021] 4 WLR 106 

The fundamental difference between the two cases is that Oxfordshire did not have within its list of factors to consider the ‘different child’ issue (i.e there’s no direct advantage for Child A of resolving the factual background, but if the parent goes on to have another child, Child B, there might be advantage to having that factual dispute resolved rather than having to go back and litigate the contentious issues some time later). As Mostyn J points out, that is because those issues had been specifically litigated in earlier authorities and explictly rejected – that the case is dealing with Child A only, and should not look into the future about a Child B who does not even exist.

Wheres Re H-D H and C does specifically include the ‘different child’ issue as a reason why a fact finding might be necessary

“The evidential result may relate not only to the case before the court but also to other existing or likely future cases in which a finding one way or the other is likely to be of importance. The public interest in the identification of perpetrators of child abuse can also be considered.”
(Emphases added)

(That also includes what Mostyn J categorised as the ‘whole truth’ issue – the benefit to Child A of having the fullest possible picture of what had or had not happened to lead to them being in care or adopted)

Mostyn J considered that as the proper relevant authorities had not been cited in Re HD H and C, that he should consider himself bound by Oxfordshire, but not by Re HD H and C which was possibly an erroneous expansion of the authorities in a way that conflicted with them whilst having not grappled wiht them.

Mostyn J h says that a Judge dealing with this sort of issue should stay strictly within Oxfordshire’s guidance and will not go wrong, and that if Re HD H and C is to be considered the guidance in that needs to be reworked, which he helpfully does at para 37 (all bold is Mostyn J’s addition)

“(i) When considering the welfare of the child, the effect on the child’s welfare of an allegation being investigated or not is relevant.
But the significance to the individual child of knowing the whole truth cannot, of itself, be a main purpose of the investigation.

(ii) The likely cost to public funds can extend to the expenditure of court resources and their diversion from other cases.
(iii) The time that the investigation will take allows the court to take account of the nature of the evidence. For example, an incident that has been recorded electronically may be swifter to prove than one that relies on contested witness evidence or circumstantial argument.
(iv) The evidential result relates only to the case before the court.
Its potential utility in a future case about another child cannot, of itself, be a main purpose of the investigation.
Similarly, the public interest in the identification of perpetrators of child abuse cannot, of itself, be such a purpose.
(v) The relevance of the potential result of the investigation to the future care plans for the child should be seen in the light of the s. 31(3B) obligation on the court to consider the impact of harm on the child and the way in which his or her resulting needs are to be met.
(vi) The impact of any fact-finding process upon the other parties can also take account of the opportunity costs for the local authority, even if it is the party seeking the investigation, in terms of resources and professional time that might be devoted to other children.
(vii) The prospects of a fair trial may also encompass the advantages of a trial now over a trial at a possibly distant and unpredictable future date.
(viii) The justice of the case gives the court the opportunity to stand back and ensure that all matters relevant to the overriding objective have been taken into account. One such matter is whether the contested allegation may be investigated within criminal proceedings. Another is the extent of any gulf between the factual basis for the court’s decision with or without a fact-finding hearing. The level of seriousness of the disputed allegation may inform this assessment. As I have said, the court must ask itself whether its process will do justice to the reality of the case.
(ix) Above all, the court must be satisfied that a fact-finding hearing is necessary.
This means that the court must be satisfied that the findings, if made, would produce something of importance for the welfare decision.”

Mostyn J went on to consider the facts of the case.

The threshold document sets out in pitiless detail why it is said that VW poses a risk of serious harm to IW were he to be entrusted to her care. In summary it alleges:
A: VW has experienced abusive and neglectful parenting throughout her childhood
.

B: The resulting mental and emotional instability has resulted in an itinerant unstable lifestyle, and emotional and mental health issues.

C: VW has extensive, serious and enduring psychiatric, psychological and emotional difficulties. She suffers from: (a) somatic symptom disorder, (b) factitious disorder, and (c) malingering.

D: VW has an extensive history of deliberate self-harm spanning from the age of 12.

E: Since the age of 13, VW has frequently and repeatedly been detained in secure accommodation.

F: VW hoards medication and conceals sharp implements so she can continue to deliberately self-harm, even whilst under hospital care or detention.

G: In December 2020 whilst detained under section 2 of the Mental Health Act 1983, VW floridly self-harmed.

H: From her early teenage years VW has abused alcohol and various illicit substances including cocaine, crystal meth, magic mushrooms, ecstasy, and cannabis.

I: VW has an extensive history of presenting at numerous hospitals throughout the country with wide-ranging complaints as reflected in nearly 20,000 pages of medical records.

J: VW falsifies signs and symptoms in order to mislead and manipulate medics.

K: VW is dependant on opioids.

L: On repeated occasions during her pregnancy with IW, VW deliberately and surreptitiously self-administered insulin in order to manipulate her blood sugar levels and thereby factitiously induced a state of hypoglycaemia.

M:. VW’s psychiatric and psychological difficulties and behaviours are enduring, and by virtue of them, any child placed in her care is at risk of serious physical and emotional harm.

N: VW’s first child, AW, was the subject of care proceedings in which it was found that AW’s life-threatening collapse on the 28 January 2017 was consistent with dihydrocodeine poisoning and that the dihydrocodeine present in AW’s system was due to VW, who gave dihydrocodeine to AW.

O: VW’s vulnerability and underlying issues have led her to form a series of damaging, controlling, emotionally and, on occasions, physically abusive relationships with men and to place herself at risk.

In her witness statement of 15 July 2022 VW made extensive, but far from complete, admissions in relation to the contents of the threshold document. Mr Sampson QC described her admissions as “anodyne”. Ms Heaton QC described her admissions as “vacillation”, and said that she had “effectively skirted around or not addressed the central findings sought”.
I emphatically reject these descriptions. VW’s admissions were extensive. She admitted a large number of the concrete facts alleged against her. So, for example, she accepted that she had self harmed by cutting herself; by swallowing razor blades; by overdosing even when in hospital; by tying ligatures around her neck; by threatening to jump off bridges or in front of trains; by self harming in relation to food; by abusing cocaine; and by her extraordinarily high number of hospital attendances. She accepted that from a young age she was involved in abusive relationships. She accepted the findings made by Recorder Bugg. She accepted that she cannot care for IW.
Mr Garrido QC described her admissions as accepting the underlying facts but disputing the professional label. Therefore, while she admits much of the conduct that led the experts to conclude that she suffered from FII, she disputes that diagnosis. In my opinion to have a state trial about professional labelling or nomenclature would be the height of futility.
In the Stockport case Thorpe J refers to the very considerable emotional and psychological cost to parents in accepting advice that leads to the conclusion of the case without a hearing. I can completely understand VW’s instinctive reluctance to condemn herself as being a sufferer of mordantly described psychiatric conditions. In my opinion it was brave and sufficient for her to make the admissions that she did in relation to concrete facts. Those concrete facts have been analysed by the experts and they have rendered their diagnostic opinions, which are uncontradicted

The Curious Case of the chopped up chocolate

Although this case has some quirky elements, I remind myself and inform the readers immediately that it is also a deeply tragic case where a young child died.

A Local Authority v AA [2022] EWHC 1596 (Fam) (15 June 2022)

https://www.bailii.org/ew/cases/EWHC/Fam/2022/1596.html

The High Court was considering a case involving 3 children, X, Y and Z. There were allegations that all three children had been the victims of mistreatment by one of the parents, that in effect the parent had intentionally suffocating them, and in the case of X this led to her death. In terms of the chronology, the episodes of suffocation to Z happened in years subsequent to the death of X.

Both of the parents had a significant medical history. In the case of the mother, it was very severe allergies (including nut allergies) such that she would need to use an epipen. Prior to meeting with the father, she had these allergies under control, but in the course of a 4 year relationship with the father, she had 19 episodes where she had to seek medical attention, including A and E admissions.

The father had been diagnosed with epilepsy at the age of 7 (though there was some doubt about the accuracy of this diagnosis within the proceedings) and had had from the age of birth to the time of the proceedings 117 A and E admissions. The father had regular seizures within childhood, though none were ever seen by the doctors or school (ie they were all either self-reports or reports by his mother)

The parents separated, and there were allegations by the mother of abusive behaviour by the father, including episodes where he tried to strangle her and smother her with a pillow.

She says that in September 2021, when she was searching for the Father’s glasses case, she found a syringe full of blood in his glasses case. She challenged the Father about it, showing him the photo that she had taken of it, and he said he knew nothing about it.
She then searched on top of the kitchen cupboards, which she could not reach without climbing on a chair, and she found two chocolate bars (a snickers and a bounty) which had been chopped into small slices with a sharp knife and she took a photo. She produced the photo of this, with clear signs that the bars had been cut with the knife. She said she found this “suspicious” but could not explain what she was suspicious of. She raised this with the Father, but when he simply denied knowing anything about it, she took no further action.

(Remember in relation to this that (a) mother had a serious nut allergy and (b) that her allergies had been under control until she was in the relationship with the father (c) that after the relationship with father began that she had 19 significant episodes of allergic reaction and of course that (d) snickers and bounty are chocolate bars which contain nuts)

The Court examined the expert analysis and the evidence given by the parents, and made findings that the father had indeed inflicted injuries on Z by suffocation, and X by suffocation which caused X’s death

  1. 148. I have reached the conclusion that the Father killed X through suffocation and induced the three episodes when Z received emergency medical treatment. The evidence of induction is less clear in respect of Y. I accept Dr Samuels’ view that it is not possible to reach a finding of induced illness in respect of Y.
  2. 149. The Father’s psychological motivations for these actions is not a matter I intend to speculate upon. Equally, whether the suffocation of X was an attempt to induce illness and then medical attention which went wrong is impossible to know. These matters may be of great interest to a psychologist, but they are not necessary for me to determine.

159….there is a clear pattern of the Father seeking medical attention when there is no evidence of any objective cause. There are, as set out above and in detail in the CLINCO report, a truly extraordinary number of medical presentations for the Father with very little, if any, evidence of underlying medical causes. The psychological reasons behind this presentation is unfathomable, and ultimately not my task to determine. It seems likely that it is some form of medical attention seeking, but the degree of conscious or unconscious motivation is unknowable. However, according to Dr Robinson and Dr Fear there can be some correlation between such behaviour and FII. On a fairly basic level, if the Father is constantly seeking medical attention for himself because of some underlying psychological need, then that may well give rise to the same pattern of behaviour with the children. It might be, in some cases, that this would be an instance of extreme anxiety leading to exaggeration. However, here the Father’s lies and the fact that the incidents only occur when he is alone with the children points strongly to induced rather than exaggerated disorders.

and that he had deliberately induced allergic reactions in the mother.

I have also reached the view that the only rational explanation for the chopped up chocolate bar is that the Father was inducing serious allergic reactions in the Mother. The Mother has undoubtedly had a great many serious allergic reactions since she has been in a relationship with the Father. It is noteworthy that she had her allergies under control until she met him. It is simply not possible to decide what proportion of the allergic reactions were induced by the Father. It may be that she became more susceptible for a period after the children were born. However, 19 such reactions in a five year period for someone who was very careful is a surprisingly high number. Added to that is the coincidence of timing, that the reactions only came on after she met the Father. Critically, there is simply no other rational explanation for the chocolate bar incident, bizarre though it is.

The Court found that there had been a failure to protect the children by the mother.

  1. 170. I do, however, find that the Mother has failed to protect the children, not merely to the degree accepted by Mr Samuels in her remaining in abusive relationship. I take into account the need to be careful about “hindsight bias” and not expect the Mother to have understood events she did not see. However, she was fully aware that the Father was not just aggressive and violent to her, but also that he was a persistent and determined liar. He was presenting himself as a loving partner when he was violently abusing her. On one occasion she says he tried to hit her when Y was in her arms. Despite X’s death and the younger children being taken into care after an ALTE to Z, she still waited another 17 months before informing the professionals about the abuse.
  2. 171 At the lowest, the Mother failed to protect the children because she was in a highly abusive household, and she seems to have taken no steps to protect the children from the emotional abuse that was going on, and on at least one occasion the physical abuse which could have impacted on Y.
  3. 172 However, beyond that, the Mother was living in a house with the Father when he was calling the emergency services on a truly extraordinary number of occasions, either for himself or the children. Her reaction to this is impossible to understand. Perhaps, as she suggested, she had become completely normalised to it, but in a situation where one child had died, her complete lack of curiosity or questioning about what was happening, is in my view itself a failure to protect. This is the distinction from some of the other cases. The Mother knew X had died when the Mother was asleep. Her failure to question the Father when similar incidents started with Z is in my view a failure to protect.
  4. 173 Her failure to properly investigate or question the Father about the chocolate and the syringes again indicates a lack of curiosity and passivity that gives no confidence in her ability to protect the children. Albeit, by the time of those episodes the children had been removed from her care.
  5. 174 Mr Samuels says that the Father was a determined and manipulative liar and he had managed to hide his behaviour from all the professionals. But the key point in my view is that the Mother knew that he was manipulative and untruthful and therefore was not in the same position as the professionals. In the light of that knowledge, her failure to apparently ask any questions of the Father about what was happening to the children or raise her knowledge of the Father’s conduct with the professionals is in my view a failure to protect the children

Decisions have not yet been made about the long-term future of Y and Z, this was the fact finding element of the case.

I don’t think I’ve encountered a case anything like this before. I’ve seen, though they are rare, cases where the parent themselves appears to have had significant hospital admissions lacking solid explanation themselves as a child and then go on to cause harm to a child that would lead to the need for medical intervention and the attention and drama that ensues, but I’ve not seen one where a parent does this not only to the children but to a partner as well.

Age assessments

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

MA & Anor, R (On the Application Of) v Coventry City Council & Anor [2022] EWHC 98 (Admin) (19 January 2022)
http://www.bailii.org/ew/cases/EWHC/Admin/2022/98.html

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Covid Metamorphoses

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

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

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

https://www.bailii.org/ew/cases/EWHC/Fam/2021/2993.html

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

In short :-

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

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

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

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

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

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

This is a very perplexing case.

It is an appeal from

Re FS v RS and JS 2020

https://www.bailii.org/ew/cases/EWFC/HCJ/2020/63.html

decided by Sir James Munby.

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

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

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

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

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

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

Yes, you read that right.

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

Yep, that certainly describes my view.

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

https://www.bailii.org/ew/cases/EWCA/Civ/2021/1572.html

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

Could it be s27 of the Matrimonial Causes Act 1973?

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

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

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

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

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

And Mr S’s parents clearly are.

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

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

So that is also out.

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

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

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

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

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

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

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

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

Yet more inherent jurisdiction and absence of secure beds

The TL;DR background on the history here.

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

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

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

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

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

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

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

BEDS NOT BANDAIDS and DOWN WITH THIS SORT OF THING

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

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

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

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

https://www.bailii.org/ew/cases/EWHC/Fam/2021/2931.html

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

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

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

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

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

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

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

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

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

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

is “ORDINARILY NO”

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

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

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

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

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