Intermediaries Court of Appeal clarification

Posted on April 24, 2025 by suesspiciousminds

M (A Child: Intermediaries) [2025] EWCA Civ 440 (10 April 2025)
https://www.bailii.org/ew/cases/EWCA/Civ/2025/440.html

Court of Appeal dealing with a case in which the trial Judge had refused an intermediary, following a line from the High Court authority on intermediaries, suggesting that it would be ‘exceptionally rare’ for an intermediary to attend throughout and there should be ‘compelling reasons’ if so.

The Court of Appeal say that Judges considering applications for intermediaries should apply the Practice Direction and amended FPR and not import legal principles from other jurisdictions such as crime (as had been done in the High Court authority – which is now no longer an authority…)

As the present case illustrates, the Family Court is under pressure. In care proceedings, the statutory framework provides that proceedings must be timetabled for disposal within 26 weeks, with time only being extended where that is necessary to enable the court to resolve the proceedings justly: Children Act 1989 sections 32(1) and (5). The President of the Family Division, as Head of Family Justice, has approved a number of necessary initiatives to support the court in carrying out its obligations. At the same time, there is a risk that pressure in any system is disproportionately felt by those least able to bear it. Whatever may have been the situation in the past, it is now understood that the court must, so far as practicable, adapt its procedures to achieve fairness for vulnerable individuals, in particular by ensuring that all participants are on an equal footing in the light of the importance and complexity of the issues.

It was this appreciation that led Parliament to introduce new provisions to the FPR on 27 November 2017. They appear as Part 3A and Practice Direction 3AA. They were further expanded in 2022 to reflect the Domestic Abuse Act 2021 in the case of victims of domestic abuse. These provisions are a comprehensive code, designed to strike a fair balance between the rights of vulnerable individuals and the demands of the system. They are of fundamental importance to the administration of family justice: Re S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8; [2022] 2 FLR 466; [2022] All ER (D) 55 (Jan), per Baker LJ at [38]; see also the foreword to the Family Justice Council Guidance on Neurodiversity in the Family Justice System for Practitioners of 30 January 2025, where Sir Andrew McFarlane P wrote that equal access to justice is fundamental to a functioning and fair system, and that the failure to recognise and accommodate neurodivergence leads to parties, witnesses and children not being able to participate fully within the family justice system.

Part 3A and Practice Direction 3AA provide the court with a framework. That is an aid to, and not a substitute for, the court’s own judgement about whether a person is to be regarded as vulnerable and, if so, what measures may be needed to achieve procedural fairness. Some aspects of the provisions concern children, victims of abuse, or protected parties who lack mental capacity. On this appeal, we are not directly concerned with these classes of individual, but the underlying principles are the same.

The court’s duty to identify any party or witness who is a vulnerable person begins at the earliest possible stage of the proceedings and continues until their resolution – FPR rule 3A.9(1) and PD3AA paragraph 1.3. All parties and their representatives must work with the court and each other to ensure that each vulnerable party and witness can participate in the proceedings and give evidence without being put in fear or distress: PD3AA paragraphs 1.4 and 3.1.

In a case where it is relevant, the court will ask itself these questions:

(1) Is a party or a witness a vulnerable person, having regard to the matters set out in FPR rule 3A.7 and the practice direction? – FPR rule 3A.3.

(2) If so, is the party’s participation in the proceedings (other than by way of giving evidence) likely to be diminished by reason of vulnerability and, if so, is it necessary in order to achieve a fair hearing to make one or more participation directions? – FPR rules 3A.4 and 3A.7 and PD3AA paragraph 1.2.

(3) Is it likely that the quality of evidence given by a party or witness will be diminished by reason of vulnerability and, if so, is it necessary in order to achieve a fair hearing to make one or more participation directions, as determined at a ground rules hearing? – FPR rules 3A.5 and 3A.7 and PD3AA paragraphs 1.2 and 5.2.

A decision about whether a person is vulnerable calls for a broad evaluative assessment that takes account of the characteristics of the individual and of the proceedings. If vulnerability exists, it is a gateway to the making of a participation direction, but there is a wide spectrum of vulnerability, and the court will carry forward its assessment of the nature and extent of vulnerability in the individual case into its assessment of whether participation in proceedings or the quality of evidence is likely to be diminished as a result. At that stage, it considers the range of participation directions available to it and determines which ones may be necessary in the circumstances of the individual case.

In proceedings involving a vulnerable person, the court order must set out the reasons why participation directions have been made or not made – FPR rule 3A.9.

These are case management directions that are firmly in the province of the judge. A considered decision within the framework of FPR Part 3A is most unlikely to be disturbed on appeal.

I turn to the provisions relating to intermediaries.

Intermediaries

Intermediaries are communication specialists. In family proceedings, their function is to communicate and explain questions asked of vulnerable people or answers given by them – FPR rule 3A.1.

Where the court has found that a person is vulnerable and that their participation and/or quality of evidence is likely to be diminished as a result, it comes to what is likely to be the critical question, namely whether it is necessary to approve the appointment of an intermediary in order to achieve a fair hearing, as opposed to making some other form of participation direction.

Intermediaries are not expert witnesses, and are not appointed under Part 25 of the FPR. However, the decision about whether an individual should have an intermediary is an important matter, and the court should approach it with formality. FPR rule 3A.10 supposes that an application will be made in the document that originates the proceedings or by a later Part 18 application. The application must explain what measures are sought and why each of them would be likely to improve participation or the quality of evidence – FPR rule 3A.10 and PD3AA paragraph 6. If the court exercises its power to dispense with the filing of a formal application, it should ensure that it has this information by other means.

If an intermediary assessment is granted, and the recommendation is for intermediary assistance, it should again be made clear what actual order is being sought. In particular, there should be clarity about what hearings or parts of hearings an intermediary would attend, and whether it is suggested that an intermediary is required for other legal meetings inside or outside the court building. The provision of a draft order will assist. Breaking matters down in this way reduces the risk of unsound ‘all or nothing’ orders being made. The court will no doubt seek to avoid making repetitive orders, but may give directions that last for certain hearings only, and revisit and revise directions in the light of experience.

The rules and practice direction show that (as with other participation directions) the primary focus of an intermediary appointment is to assist with communication within the courtroom, and in particular to enable the vulnerable person to give their best evidence. However, as seen from FPR rules 3A.1 and 3A.4, PD3AA paragraph 3.1, participation directions are not limited to these functions. The last of these provisions requires that, when considering whether the participation of any party or witness in the case is likely to be diminished by reason of vulnerability, the court should consider the ability of the party or witness to

“a) understand the proceedings, and their role in them, when in court;
b) put their views to the court;
c) instruct their representative/s before, during and after the hearing; and
d) attend the hearing without significant distress.”
Moreover, a party’s ‘participation in proceedings’ includes giving instructions and making written statements, a process that requires questions and answers. The witness statement of a witness called to give oral evidence will stand as their evidence in chief unless the court directs otherwise – FPR rule 22.6(2). Under FPR rule 3A.5, the court must consider whether the ‘quality of evidence’ given by a party or witness is likely to be diminished by reason of vulnerability: this cannot sensibly be limited to oral evidence. There may therefore be circumstances in which an order for intermediary assistance will be sought for a legal conference away from court, but this will call for a separate exercise of judgement. The fact that participation in proceedings extends beyond the courtroom does not absolve the court from considering whether an intermediary is in fact necessary for that purpose in the individual case. As noted above, the experience of a vulnerable person in a solicitor’s office, where matters can proceed at their own pace, is likely to be different from their experience of a more formal courtroom setting, and what is necessary in one setting may be unnecessary in the other.

In making its judgement about vulnerability and participation directions, the court must have regard in particular to the matters listed in FPR rule 3A.7 when deciding what is necessary in the case before it. There will often be a cognitive assessment. If it recommends the use of an intermediary, it must evidence why that is necessary and explain why alternative means are inadequate. It would be helpful for the report to consider the party’s participation at case management hearings, legal conferences, and when giving evidence. If the court then approves an intermediary assessment, the cognitive report should be supplied to the assessor. The intermediary assessment itself will then form part of the evidential picture in relation to vulnerability and measures.

The court is also entitled to take account of the parties’ submissions, to whatever extent it considers appropriate. Advocates are expected to have the skill to identify and adapt to vulnerability, and their submissions on the measures needed to ensure a fair trial form part of the information on which the court can act. The advocate representing a vulnerable person or seeking to call them as a witness may be well placed to assist the court from their own interactions with the vulnerable person, but it would be inappropriate to require evidence from them in the form of a witness statement. As the process is a collaborative one – PD3AA paragraphs 1.4 and 3.1 – the court may also benefit from submissions made by other parties, who may also have their own interest in the decision. The local authority and Children’s Guardian will wish to ensure that the proceedings rest on firm foundations and, depending on the case, individual parties may have their own perspectives.

Decision-making about intermediaries should not be protracted, and the court’s conclusions should be capable of being expressed quite shortly.

The Court of Appeal specifically say that the references to criminal authorities in the Lieven J case were ones that they did not find helpful

I do not consider the decision in Thomas to be an aid to the interpretation of Part 3A of the FPR. Part 3A was the product of the Vulnerable Witness and Children Working Group, whose final report in February 2015 heralded a greater awareness of the needs of vulnerable persons in family proceedings. The guidance in Thomas drew on the 2015 Criminal Practice Direction, which provided at 3F.13 that directions to appoint an intermediary for a defendant’s evidence will be rare and, for the entire trial, extremely rare. These references did not appear in the Criminal Procedure Rules 2020, nor in the current 2023 Criminal Practice Direction, which addresses intermediaries at 6.2.

and that:-

  1. There is in any event no warrant for overlaying the test of necessity with concepts of rarity or exceptionality. Frequency is not a test, and nor is exceptionality. Similarly, the introduction of tests of “compelling reasons”, or of adjournments for lack of an intermediary being “unusual” or “very unusual”, beckon the court to short-circuit its consideration of the evidence in the individual case.

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Section 37 only applies to children subject to the proceedings

Posted on April 24, 2025 by suesspiciousminds

I always love when an issue comes up that in the course of the Children Act’s thirty-six year history just hasn’t happened before.

E (Section 37 Direction) [2025] EWCA Civ 470 (16 April 2025)
https://www.bailii.org/ew/cases/EWCA/Civ/2025/470.html

In this case, the Local Authority were involved in care proceedings in relation to a child E, who was less than a year old. The mother had been staying at her sister’s home (A) and A had children of her own. In the course of a hearing about E, allegations came to light about the state of A’s home.

Put down anything that you’re eating. I’ll wait.

At the end of the case management hearing, the guardian’s solicitor informed the judge that she had been instructed to raise a further issue concerning A and her children, and to seek a s.37 investigation. At the judge’s request, M and her counsel then withdrew from the court room. The guardian’s solicitor informed the judge that she had been told that the conditions in A’s house had not improved but, if anything, had got worse. She told him that there was an allegation of A accidentally hitting one of her children with a fishing rod, and a health visitor’s report of faeces in the kitchen sink, fleabites on the children and concerns about domestic violence. She then added: “I am told that there is a gun in the house”. 

Understandably, the Guardian was very concerned about A’s three children, aged 4, 2 and 12 weeks. The Court asked counsel for the LA to go out and take instructions – the social work team for A were a different team to the one looking after A’s children.

After a break, counsel informed the judge that her solicitors had confirmed that there was a record on the files of a health visitor seeing a gun at the property, that the police had undertaken a joint visit with social workers and had not seen a gun. The following exchange then took placed between local authority counsel and the judge:

“Counsel: So the local authority say that they are responding to the concerns in a proportionate way. There was a strategy meeting last Thursday and there was a multi-agency discussion. They are going back to the police to check if there was a proper sweep of the home, but, on the joint visit, there was no evidence of firearms. They would accept the section 37. If it is directed, of course, they have to, but they are not issuing at this stage because they are working with the family, with A, to try and ensure her children’s safety and there is a real concern that, if this report is directed within these proceedings — issues about confidentiality because M is not aware of the extent of or I think may not be aware at all of domestic abuse in her sister’s relationship, and certainly that is a concern that I would advocate on behalf of the local authority, that these are children really that are outside the ambit of these proceedings. I appreciate that their welfare has come to the fore of what we know about M and —-
Judge: The local authority know what section 37 says, don’t they?
Counsel: Yes.
Judge: They understand the basic principle of section 37.
Counsel: They are looking to see whether a supervision or care order should be made in relation to these children, but they say that effectively, in this pre-proceedings stage in relation to A, they are not at the threshold to issue proceedings. They are working with her, with the safety plan, with the friend, multi-agencies involved. The police have been involved and are going to be asked to be involved again to double-check the status of the firearm that was seen by the health visitor, and they are looking to encourage and support A to make decisions whereby this violent relationship that she is beginning to disclose is ended. But we are in the hands of the court, so I accept that the court has the powers obviously to direct the report and to make the order that you have indicated you may well do.”
The guardian’s solicitor responded that the guardian was extremely concerned about A’s three children and had instructed her to ask that an interim supervision order be made.

The judge then delivered a short judgment, which has also been transcribed. He recorded that, at the earlier hearing on 27 January, he had indicated to the local authority that he was anxious about the welfare of the three children, and had made it very clear that he would be enquiring about them because it seemed to him that “there was scope for public law proceedings to be considered”. He summarised the latest concerns which had been reported to him that morning. He recorded the local authority’s position that they could not stand in the way of a section 37 direction but that they opposed an interim supervision order because they were still working with the family.

The judge then said that “the law in respect of this sort of issue is straightforward and settled”. He recited section 37(1) and added: “that is settled”. He summarised the provisions of section 38(1)(b) and observed:

“The information that I have received from the guardian clearly meets that threshold. A firearm, faeces, fleabites and accidental injury against the background of a mother who has engaged in a relationship that might be domestically abusive is, in my judgment, interim threshold open-and-shut.”
The judgment then concluded as follows:

“8. I have got to consider whether I should make an interim care order or an interim supervision order. This case, in my view, falls squarely within the interim supervision order bracket on the strict proviso that, within the next 24 hours, an urgent search of this property is undertaken to make sure that there is no firearm present. If a firearm were found to be present and not removed, that would be threshold, in my judgment, for an interim care order to be made to make sure that the local authority took on responsibility for making this property safe, but I am optimistic that the professionals will do their job and that will not be necessary.

  1. I am going to give the local authority eight weeks to complete their section 37 report. The interim supervision order is made for the same period of time. The section 37 report is not to be disclosed to the mother in the main proceedings to maintain confidentiality. The guardian, of course, is automatically appointed in respect of the three children for the duration of my order, if my understanding of the rules concerned is correct and she can produce a position statement in advance of the hearing in eight weeks’ time, which I will now try and set.
  2. I should say that nothing that I am saying in this short ex tempore judgment should be perceived as being critical of the local authority. This social work team are very well respected in this court, but I am concerned about what I have heard and, at the end of the day, decision-making is a matter for me when it comes to Children Act matters and I am just doing what I think is correct to keep these children appropriately safe.”

Given that this case came before the Court of Appeal and how I opened this piece, do we think that the Judge was right in his summary that the law in relation to this is “straightforward and settled”?

The appeal turned on this legal question :-

In the wording of s37(1) – when the Act says “Any child” does it literally mean “any child” or does it mean “any child about whom there is a live application before the Court?”

“Where, in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made with respect to him, the court may direct the appropriate authority to undertake an investigation of the child’s circumstances.”

And can a Guardian representing Child A properly invite the Court to make a s37 order and ISOs about three children who are not part of the proceedings?

And subsequently, was the Court wrong to make an interim supervision order under s37 when the parents of those three children had no idea whatsoever that this was even under consideration?

The Court of Appeal were understanding that the Court was very worried about these three children, but on those three questions they basically say – a s37 ‘any child’ has to mean ‘any child about whom the Court is being asked to make decisions about their welfare’ , that the Guardian did not have locus to make such an application, and that it was procedurally unfair to make ISOs when the parents were completely unaware.

Discussion and conclusion

I fully share the judge’s concerns about these three young children. The reports in the social worker’s initial statement about conditions at A’s house were very alarming and it was entirely understandable that he asked to be updated at the hearing on 10 February. As I observed during the hearing, Ms Goss and guardian also acted out of concern about what had been divulged about the circumstances of the three children. As noted above, the guardian’s duties under FPR rule 16.20 and PD16A paragraph 6.6 extend to advising the court on such matters as the court may direct and about which the guardian considers that the court should be informed. To that extent, the guardian here was acting in accordance with that duty.

But I conclude that in taking steps he thought necessary to protect the three children, the judge misunderstood the scope of s.37. Furthermore, in his anxiety about the three children, and placing them under interim supervision orders, he overlooked the need to ensure that the procedure he adopted was fair.

At first glance the interpretation of section 37 proposed by the guardian and adopted by the judge is tenable. But on closer scrutiny, I conclude that it is wrong, for the following reasons.

First, there is the language in the subsection. If one focuses only on the words “any child”, one might conclude that the power extends to any child who comes to the court’s attention during the proceedings. But it is necessary to look at the whole phrase – “any family proceedings in which a question arises with respect to the welfare of any child”. In my view, that plainly means “proceedings in which a question arises for determination about the welfare of a child”. It does not mean “proceedings in which the court becomes aware of a concern about the welfare of a child”.

(Italics mine for emphasis)

Whilst it is significant that since the implementation of the 1989 Act there has been no reported case in which a court has made an order under section 37 in respect of a child who was not the subject of the proceedings, that is not by itself decisive. Conceivably, there may be unreported cases in which this has happened. The fact that the judge in this case thought that the power extended to other children – and did not feel it necessary to address the possibility that it did not – suggests that it is at least possible that other judges and lawyers may have adopted the same interpretation in circumstances which did not lead to any reported judgment. But that is not how the provision has generally been understood.

The passages cited above from the judgments of Wall J in Re CE (Section 37 Direction)¸ Wilson LJ in Lambeth LBC v TK and KK, and McFarlane LJ in Re K (Children) all indicate that the purpose of a section 37 direction is to enable the court to obtain a report about the child who is the subject of the proceedings. It is, as Wall J said in Re CE, “a means of assisting the court in its assessment of the options available for dealing with the child”.

The paradigm situation in which a section 37 report is ordered is in the course of proceedings about a child under Part II of the Act. In most proceedings, where the court concludes it needs information about the welfare of the subject child in order to decide whether to make orders under section 8(1), it orders a report under section 7. But when a judge becomes concerned that the child’s circumstances are such that it may be appropriate for the child to be made subject to a public law order under section 31, he has the additional power to make the direction under section 37. Section 37 thereby provides, in the words of McFarlane LJ in Re K (Children), “a jurisdictional bridge between private law proceedings under Part 2 of the Act, in which a local authority normally plays no part, and the public law provisions in Part 4”. Where after completing the section 37 assessment the local authority decides to start proceedings under Part IV, the bridge will have been “traversed” and the range of options available for dealing with the child will be expanded to include care or supervision orders. Where the local authority has decided not to start proceedings under section 31, those orders will not be available. But the report may still be of assistance to the judge considering the options for dealing with the child. It is for that reason that the information in the report must include not only the local authority’s reasons for so deciding but also details of any service or assistance which they have provided, or intend to provide, for the child and his family and any other action which they have taken, or propose to take, with respect to the child: section 37(3).

And then, on the later two points:-

Further or alternatively, whether or not the court was entitled to make the section 37 order in respect of the three children, and place them under a supervision order, I accept the local authority’s arguments under ground 2 that the procedure adopted in this case was unfair.

No notice was given to A or her partner that the court was considering making a section 37 direction and a consequential order under section 38(1). The cases in which an application in children’s proceedings can be made without notice are defined in FPR rule 12.16. They do not include applications for orders under Part IV. In Re L, supra, McFarlane LJ rejected an argument that a judge had acted outside her powers by making a section 37 order coupled with an interim care order without notice to the child’s mother. It is unclear to me whether the Court in that case was referred to the provisions of rule 12.16. But assuming that the decision in Re L is binding authority for the proposition that an interim order under section 38 can be made without notice, such a course should only be followed in exceptional circumstances.

So much is clear from a comparison with the procedure for making an EPO. The court has the power to make an EPO without notice. But that power must be exercised sparingly. As Munby J said in X County Council v B at paragraph 57(vii)

“Save in wholly exceptional cases, parents must be given adequate prior notice of the date, time and place of any application by a local authority for an EPO. They must also be given proper notice of the evidence the local authority is relying upon.”
The same approach is applicable when the court is considering whether to make an interim order under section 38 consequential to a direction under section 37. For the reasons set out above, I have concluded that there is no power to make such an order in respect of a child who was not the subject of the proceedings. But if there were such a power, save perhaps in wholly exceptional cases, the parents of that child would have to be given notice. In the present case, no circumstances have been identified to justify making the interim supervision order without notice to the parents. As a result, A or B had no opportunity to respond to the allegations raised by the guardian or make representations on the proposed orders.

Secondly, having decided to make an order without notice to A and B, the judge erred in failing to list the matter for an early hearing once notice had been given. In any circumstances in which a court feels it necessary to make an order without notice, there are strict requirements about making the order for a limited time and allowing the party against whom the order is made to make representations and seek to have the order varied or set aside. Contrary to the usual practice when an order is made without notice, the court here did not make the order for a limited period or fix the case for a further hearing when A and B could be present. The order would continue until the hearing 8 weeks later unless A and B applied under section 39 for it to be discharged.

Furthermore, as set out above, section 38(10) expressly required the judge, when determining the period for which an interim order under the section is to be in force, to consider whether any party who was, or might have been, opposed to the making of the order was in a position to argue his case against the order in full. Here A and B had no opportunity to argue the case at all. It seems from the transcript that there was no reference to this requirement at the hearing either by the advocates or by the judge.

Again, a comparison with the EPO procedure is instructive. As Munby J said in X County Council v B at paragraph 57(v);

“Where the EPO is made on an ex parte (without notice) application very careful consideration should be given to the need to ensure that the initial order is made for the shortest possible period commensurate with the preservation of the child’s immediate safety.”
Having concluded that the circumstances warranted making an interim supervision order without notice to A and B, it was incumbent on the judge to direct a further hearing be listed promptly to give them an opportunity to make representations.

Thirdly, the judge made the orders largely on the basis of what he was told in court. As set out above, the general rule in FPR rule 22.2(1) that any fact which needs to be proved by the evidence of witnesses is to be proved by their oral or written evidence does not apply to proceedings for an interim care or supervision order, or where otherwise provided by an enactment, rule, practice direction or court order: rule 22.2(2). In this case, a statement had been filed before the first hearing on 27 January in which evidence was given about conditions at A’s property. But there was no proper evidence about the matters raised orally by the guardian at the hearing on 10 February. The local authority counsel responded to those matters by telling the judge what her instructing solicitor had read from the computerised social services records. That was an insufficient evidential basis on which to make an interim order under section 38(1).

Furthermore, the judgment contained no consideration of the legal principles to be applied when considering whether to make an interim care or supervision order. A court considering whether to make such an order must consider the factors in the welfare checklist in section 1(3) of the Act, and evaluate the proportionality of the proposed interference with Article 8 rights, having regard to the principle that the court must always adopt the least interventionist course consistent with the child’s welfare. In this case, there was no analysis of these matters in the judgment.

Finally, the appointment of the guardian to represent the three children was ultra vires. It was not correct to say that the guardian was automatically appointed in respect of these children for the duration of the supervision order. The power to appoint a guardian is confined to (a) specified proceedings and (b) under FPR rule 16.4. Under s.41(6)(b), proceedings in which a court has given a direction under section 37(1) are only specified proceedings where the court “has made, or is considering whether to make, an interim care order”. Once the judge decided to make an interim supervision order, the proceedings were not “specified”. The purported appointment of the guardian was plainly not made under rule 16.4 because (1) the judge clearly thought he was making it following the section 37 direction and the interim supervision order, (2) the children had not been joined as parties to the proceedings, and (3) in my view could not conceivably have been joined as parties to these proceedings which concerned E.

These deficiencies in the procedure adopted in this case are not mitigated by the fact that the court only made an interim supervision order and not an interim care order. It is true that a supervision order is less interventionist than an interim care order, but that does not mean, as Mr Calway asserted, that the court was not making orders which led to any direct interference in parental responsibility. The making of any order under Part IV of the 1989 Act is an interference with parental responsibility. Furthermore, if the broader interpretation of section 37 contended for on behalf of the guardian were correct, it would have been open to the judge to make interim care orders or, if making interim supervision orders, to have imposed a direction under section 38(6) or under Schedule 3.

It is, of course, right that effective child protection requires untrammelled cooperation between all agencies. For that reason, where a judge in the course of proceedings becomes aware of circumstances which suggest that a child may be at risk of significant harm, he or she will consider taking appropriate steps to notify the relevant local authority. The judge here was rightly concerned about the three other children in the house. He was understandably anxious to know what steps the local authority was taking about them. Having considered representations from the parties to the proceedings, he would have been justified in allowing the disclosure of information from these proceedings to the social work team involved with the three children. But he was not, in my view, entitled in these proceedings to direct the local authority to carry out an investigation of the circumstances of the three children or to make them subject to interim orders under section 38.

It was for those reasons that I concluded that the appeal should be allowed and the section 37 direction and the interim supervision orders under section 38(1)(b) set aside.

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Shortfall in expert fees

Posted on April 24, 2025 by suesspiciousminds

Well, most Local Authority lawyers have been eagerly awaiting this decision and it is finally here.

There’s been a view for a while that when an expert report is commissioned and it is above the Legal Aid Agency benchmarking rates, then the Local Authority with their bottomless pockets should make up the difference. And of course the LAA benchmarking rates don’t always co-exist with market reality on what you need to pay an expert where the pool of relevant expertise is small.

Re K and Re S 2025 says nope.

And there’s also a new form of wording to be used in orders for expert reports.

I’m very grateful for all of the hard work done on this by the Experts Group, led by Barnet collating evidence from LA’s up and down the country.

K, Re & Re S (Legal Aid: Experts’ Fees) [2025] EWFC 100 (16 April 2025)
https://www.bailii.org/ew/cases/EWFC/HCJ/2025/100.html

And to be fair to the LAA who changed their guidance BEFORE the Court hearing

Amended Legal Aid Agency Guidance

The LAA has now amended its ‘Guidance on the Remuneration of Expert Witnesses in Family Cases’ so that it makes clear that it is not the intention of the LAA that local authorities should make up a shortfall in expert fees (other than in unusual circumstances) [para 2.4]:

‘2.4. The intention of the LAA is that once a prior authority is granted it should, other than in unusual circumstances, cover the full cost of the expert and the Local Authority should not make up shortfalls in the amounts requested by experts. The possibility of local authorities’ topping up fees is not a relevant consideration for the LAA prior authority decision.’
The revised guidance, which was issued in April 2025, also makes clear what criteria (exceptional circumstances) are to be met for the LAA to grant prior authority to instruct an expert where the fees or hours exceed those set out in the Remuneration Regulations or Guidance [para 2.2 and 2.3]:

‘2.2. In order to be granted prior authority for fees or rates higher than those listed in the Remuneration Regulations, you will need to demonstrate that the instruction of the expert involves exceptional circumstances. Exceptional circumstances are defined in paragraph 2(2) of Schedule 5 of the Regulations and are where the expert’s evidence is key to the client’s case and either:
a) the complexity of the material is such that an expert with a high level of seniority is required; or
b) the material is of such a specialised and unusual nature that only very few experts are available to provide the necessary evidence.
2.3. Scarcity can be demonstrated by providing alternative quotes or evidence of attempts to secure alternative quotes. Complexity can be demonstrated by providing a background to the case, either within the Letter of Instruction, or as a separate document. The detail may also be set out in the court order or provided by the expert in the breakdown of their estimate. When making a decision on whether exceptional circumstances are met and higher rates should be approved, the LAA will consider, in addition to the criteria above, the total costs of the work sought, the speed at which the work has to be completed, any identified shortage of experts available at all or within the timeframes required and any other exceptional reason.’
A checklist is included to ensure all relevant information is submitted to the LAA [para 3.26 and Annex 6]. Finally, the guidance explains that, whilst there is no formal appeal following a decision on prior authority, the LAA operates a system whereby they can be asked informally to review the decision [paras 3.22 and 3.27].

So that principle is extremely helpful

Some general principles

Having considered the issues involved, the experts’ group has endorsed the list of general principles proposed by Barnet and they are in the following terms:

‘i. Those seeking to instruct an expert should make all efforts to identify an expert with the requisite experience and expertise who works within the prescribed rates and the prescribed number of hours and can report within an acceptable timeframe.
ii. If such an expert can be identified then that expert should be preferred by the court absent any exceptional reason.
iii. A local authority should not routinely be considered as a source of funds to make good any shortfall in the instruction of an expert.
iv. A local authority should only be ordered to pay for the shortfall of an expert where the court is satisfied:
a. That there has been proper exploration of other experts who may be able to complete the work within the prescribed rates and for the prescribed number of hours.
b. That the application for prior authority that has been considered by the Legal Aid Agency has been argued fully and included all material relevant to the decision making of the Legal Aid Agency.
c. That the parties (including the Local Authority) have given proper consideration to the possibility of a claim for judicial review against the Legal Aid Agency.
d. That the reason given by the Legal Aid Agency for refusing to approve the application for prior authority was full and enabled the court and the parties to understand the reason for refusal.’
Template standard order

The experts group suggested a template for court orders made when approving the instruction of an expert where the hours or rates will exceed the LAA rates/hours. The terms of the template order have now been agreed by the LAA. Courts should henceforth use this template in order to record the decision in such cases in a uniform manner which is compatible with the need to give the LAA relevant information when considering any application for prior authority. The template agreed by the LAA is:

‘The following directions shall apply to the instruction of [name of expert]:
a. The lead for the instruction of the expert shall be [name].
b. The letter of instruction to the expert [as approved by the court today] / [to be agreed by the parties by 4.00pm on [date] and filed at court] must be sent the expert by 4.00pm on [date].
c. The issues in the proceedings to which the expert evidence relates are:
(i) [insert]
(ii) …..
d. The Court is of the view that the facts of the case are exceptional, as defined in paragraph 2(2) of Schedule 5 of the Regulations, and the experts instructed are essential to enable a fair and just conclusion of the proceedings because:
(i) [insert Judge’s reasons].
(ii) Complexity of material justifies appointment of a senior expert.
(iii) Material of specialised and unusual nature.
(iv) Confirmation of number of experts approached and reasons why that expert should be appointed.
e. The questions to be dealt with by the expert are [as set out in the draft letter of instruction] / [as follows: [insert]].
f. Permission is [not] given for the expert to see and assess the child[ren].
g. Permission is [not] given to call [name] to give oral evidence at the [final]/ [finding of fact] hearing].’
Concluding observations

I am most grateful to the LAA and to the experts’ group for considering this increasingly pressing question. It is apparent that some real progress has been made in clarifying the approach that the LAA intends to take to these cases in the future. In particular, the LAA has been clear that it is not its intention that a local authority should be expected to make up any shortfall, save in unusual circumstances. The template order should ensure that all relevant information is supplied to the LAA before it considers whether prior authority should be granted. Where there is a likely shortfall, then the general principles identified by the experts’ group are aimed at ensuring that the LAA has been provided with full information, that the internal LAA procedures (including any review) have been followed and the possibility of challenge by judicial review has been given reasonable consideration. Only then, when the court is satisfied that these other reasonable steps have been properly taken, should it turn towards the local authority as a possible source of additional funding.

The steps within the general principles should ensure that an expert is only to be instructed at a rate outside the prescribed rate or in excess of the prescribed hours where to do so is justified by some ‘exceptional reason’, and that, when applying for prior authority, the LAA has been supplied with full information justifying that decision. Whilst I endorse this statement of general principles, and I would urge courts and parties to apply them whenever the issue of funding of experts outside the statutory rates arises, I would suggest that an additional subparagraph (iv)(bb) should be inserted to ensure that full use is made of the option for informal review by the LAA:

(iv)(bb) That an application has been made to the Legal Aid Agency to review its decision under paragraphs 3.22 and 3.25 of the Remuneration Guidance.
Where any process of review may take time, and postpone the chosen expert starting work, a court should consider arranging (either by agreement or court order) for the local authority to cover any shortfall on an interim basis pending further consideration by the court once the LAA process, and any challenge, has run its course. In line with the express wording of paragraph 2.4 of the revised Guidance, the fact that the local authority may be covering the shortfall in the interim is not a relevant factor for the LAA when considering an application for prior authority.

It is to be hoped that these developments will lead to a very substantial reduction in the number of cases in which there is any question of a local authority covering a short-fall in expert fees in public law children cases.

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Finding of fact, child allegedly harmed in residential assessment unit

Posted on March 17, 2025 by suesspiciousminds

This is an interesting judgment about a finding of fact where the child was in a residential assessment centre with his parents when he was admitted to hospital as a result of a torn frenulum and other injuries including fractures were later identified.

That’s a really unusual situation, and it is not a surprise that the residential assessment centre not only gave substantial evidence but also were intervenors to the proceedings.

https://www.bailii.org/ew/cases/EWFC/HCJ/2025/54.html

 A, Re (Care Proceedings: Non-Accidental Injuries: Identifying the Perpetrator) [2025] EWFC 54 (14 March 2025)

It is an excellent judgment in terms of summarising and analysing all of the relevant authorities on non-accidental injuries and identifying a perpetrator as well, and would be an excellent starting point for anyone wanting to distill those authorities.

There were 4,000 pages of evidence, and the hearing lasted between 1st July 2024 and 24th July 2024. There was CCTV at the assessment centre, but viewing the tapes was inconclusive and it was established that there were blind spots in the CCTV coverage.

It appears that the baby was unwell when born (16 weeks premature) and had assisted ventilation for around 36 hours. There were concerns about his parents not visiting sufficiently in hospital. On discharge from hospital around three months later he was placed with his parents in a residential assessment centre.

Shortly afterwards, a mark was noticed on his leg and he undertook a medical examination:-

At 17.20pm on 25 November 2022 A’s parents were spoken to by staff at the Assessment Centre about the marks on A’s right leg and foot. A was taken to Hospital B where he was examined by a Paediatric Registrar. The Paediatric Registrar observed several marks on A which could be explained but also the following for which there was no explanation, namely: –

i) 1cm x 1cm x 1cm triangular red area, posterior and superior to the lateral malleolus of the right foot (the outer aspect of the right ankle).
ii) 1cm x 0.5cm red mark located on lateral surface of lower leg, superior to the lateral malleolus (above the right ankle).
iii) 1.2cm linear red mark on lateral aspect of right foot/5th toe.
iv) 0.3cm x 0.3cm red mark on left lower leg, medial aspect of the anterior tibia.
v) 1.5cm x 0.4cm red mark on left lower leg, lateral aspect of the anterior tibia.
vi) 0.3cmx0.2cm red mark on left lower leg, medial aspect of the anterior tibia.
vii) 1.6cm vertical linear red mark overlying Achilles tendon of left leg.
Each of the above marks were considered to be consistent with bruising. Father suggested that each of them could be due to tight clothing.
As a consequence of the above, A was admitted to Hospital B for observation and investigation. Those investigations did not include a skeletal survey.

A Strategy Discussion on 28 November 2022 concluded that there was no evidence of a non-accidental injury given the CCTV footage from the Assessment Centre and given a skeletal survey had not been deemed necessary. A was therefore discharged back to the Assessment Centre where he continued to be placed with his parents for residential assessment.

Then on Christmas Day :-

25 December 2022, at or about 21.36hrs M ran out of their family room with A in her arms shouting that A is bleeding from his mouth. F observed bleeding coming out from under A’s tongue. Despite this episode possibly indicating damage to the lingual frenulum, which Professor Fleming states is a marker for potential significant abuse by forceful feeding, it appears that after repeated failed attempts by staff to get through to 111, staff at the Assessment Centre gave up and no medical attention was sought for A

And then a further issue in January 2023

  1. 59. At approximately 16.00 pm on 12 January 2023, F was changing A when he noticed a large bruise on A’s right thigh which he drew to the attention of staff. The mark was placed on a body map and photographs were taken. At 18.30 hrs A was seen by a GP who advised attendance at Hospital B. There, A was assessed at 21.30hrs in the Paediatric Emergency department where the following was noted:-
  2. A had an ophthalmic review the next day which revealed no evidence of retinal haemorrhages. A had a skeletal survey whilst in hospital (see below).
  3. On 20 January 2023, M and F were arrested for GBH with intent. On the same day the placement at the Assessment Centre was terminated.

…However, the skeletal survey which the clinicians had ordered showed multiple rib fractures including multiple posterior rib fractures and a fracture of the left distal radius (bone in forearm). The fractures, particularly the posterior rib fractures, were considered by the clinicians to be suspicious of an inflicted injury.

That’s a lot to digest, but basically this child had either been in hospital or with his parents at a residential assessment centre, so how had these injuries occurred (and how had they not been seen at the residential assessment centre if they occurred there?)

On behalf of the Assessment Centre, their advocate in closing chose to answer a number of specific questions. They are as follows: –

i) Did the Assessment Centre fail to adequately supervise A’s bath time? It was submitted that when the family arrived at the Assessment Centre, they signed a “Working Agreement.” Paragraph 3 of the agreement included the parents agreeing to be observed by a staff member whilst undertaking all care tasks in relation to A. Paragraph 4 of the agreement says the parents should “report all basic care tasks with A to staff so this can be observed in person or via camera/or be recorded.” It is averred that the evidence demonstrates that the parents failed on several occasions to follow these important rules and principles. It is said that they failed on several occasions to verbally inform staff before starting to bathe A. The father told the court that the reason why he sometimes failed to wait for staff was because he just wanted to get things done quickly, because other residents might want to use the bathroom. It is submitted that he also told the court that he was always expecting someone to come up. Mr X (junior) gave evidence that when parents took A to the bathroom without informing Assessment Centre staff first, they usually went to the bathroom without adequate preparation for A’s bath. That meant that when staff arrived at the bathroom, they would have to go back to the family’s room to bring adequate items of clothing or whatever else was needed for A. This would usually result in A being left on his own with his parent or parents. One of the rooms, apart from the staff toilet, where there is no CCTV at the Assessment Centre is the bathroom.
(ii). Did the Assessment Centre fail to protect A adequately? It is submitted that it is wrong to assume that the Assessment Centre staff failed to protect A adequately. Evidence revealed there were occasions when the father was seen to be heavy handed or rough handed when handling A. Staff intervened on such occasions, advising the father to be gentler with A. It is submitted that the Assessment Centre was diligent in its observations of A and ensured any bruising, marks or injuries were evidenced by body maps and photographs, brought to the attention of the local authority, and that A was taken for medical attention at the GP, Hospital B or that medical attention was sought from 111 in relation to the mouth injury.
(iii) Did Ms H cause injuries to A on 4.1.2023? It is submitted that it is clear from the CCTV evidence of 4.1.2023 and the expert medical evidence in the proceedings that A’s injuries could not have been caused by Ms H.
(iv) Did the Assessment Centre staff cause A’s injury when they had sole care of him in the absence of his parents? It is submitted that the evidence has shown that A was looked after by the Assessment Centre staff on five occasions without his parents. On behalf of the Assessment Centre, the evidence of Ms N, Ms X (senior), Mr X (junior), Ms D, Ms S and others is relied upon. In evidence, the Assessment Centre staff have confirmed that there were always other staff members in the staff room whenever A was taken to the staff room. Hence, A was never truly alone when taken there. It is averred that evidence from Ms N revealed that the only time that A was truly alone with staff members was when he was taken to the GP for his immunisation; and this was because his parents were unable to wake up to take him to the GP for his appointment.

In terms of the evidence of the managers and senior assessors at the assessment centre, Henke J said this:-

i. Ms X (senior). Ms X (senior) is the Registered manager and company director of the Assessment Centre. She has been running the Assessment Centre for 8 years. When she gave her evidence, it was obvious that she had pride in the centre, was defensive of it and its practices. After all, the whole purpose of the centre is to safeguard, and A had been injured whilst staying there with his parents and she and the centre had much to lose. That said, I formed the view that she was ultimately a truthful witness who gave evidence upon which I could rely.
Ms X (senior) told me that she does not have any social work experience; Mr K was to provide a parenting assessment. The PAMS element of the assessment was to be conducted by Ms N. The PAMs assessment was not included in the Midway assessment. She had no direct contact with the parents.
In terms of observation in the placement, she told the court that the CCTV covered all areas except the bathroom. She accepted that there were blind spots in the parents’ room, namely behind the door and from the chest up by the room’s window. The CCTV did not have audio but there was a baby monitor. A member of staff should be present when all care tasks are carried out and parents are expected to notify staff if they intend to carry out such tasks. She had not reviewed the CCTV footage relevant to A’s stay at the placement because the police had taken it. At the time staff had seen the father rough handle A and had intervened. That was recorded in the logs which they had reviewed after A was found to have been injured. She had not asked any member of staff if they had caused injuries as staff had reported their safeguarding concerns. Staff had taken A into the office but there was always at least one other member of staff there. She could not countenance any member of staff having caused the injury. They had a safe recruitment policy
ii. Mr X (junior). Mr X (junior) gave evidence before me twice. He is Ms X’s (senior) son. He was the key worker who worked with the family. He had concerns about the tit-for-tat between the parents; about them not getting up early enough etc. The mother was overall gentle and caring but had to be encouraged to do tasks. The father could be gentle with A but he was also heavy handed when patting his back and touching him. You could hear the father on the monitor patting A’s back. He was mortified that A was injured on the Unit. Mr X (junior) actually broke down in tears when giving evidence and was clearly devastated at what had happened but also, I considered during his first time in the witness box, defensive of the Unit and worried about reputational damage. When he gave evidence for the first time he had not seen the CCTV footage of the time A was at the Unit because it had been in the possession of the police. When he returned to the witness box for the second time, he had had the opportunity to view selected parts of the CCTV. Having done so he had to accept that there were two occasions when A had been in the bathroom with his father without supervision in January 2023. Mr X (junior) accepted in cross-examination on behalf of the mother, that the father had a habit of not reporting that he was going to carry out a care task before he did it. However, in cross-examination by the father, he had to accept that on 4 January 2023 the father had said over the monitor that he was taking A for a bath. I got the impression from listening to what the witness said and the way he said it, he had informally relaxed supervision of the father with A because he did not consider A would come to harm in his care and that he could leave him to bath his son. I have asked myself why then did his log entries not reflect that conclusion or the lack of supervision on two occasions. I have decided that there is only one answer to that question – that is that he knew the tasks should be supervised and that was what the local authority expected of the Unit. What had happened was not consistent with the 24/7 monitoring and supervision the local authority had requested of the placement. I consider that Mr X (junior) was a defensive witness. When he gave evidence on the second occasion, he did not appear to me to understand the import of two occasions when there was no supervision or of his log not being accurate on those occasions.

[I pause here to say that residential assessment centres are a scarce resource – demand for them is greater than supply, and that they are a very expensive resource – that’s not to contend that they are not value for money, but just that in cost terms they are many tens of thousands of pounds. If there are such failings about lack of supervision and inaccurate record-keeping, there’s at least a question as to whether they should have been identified here so that Courts, parents and Local Authorities considering their future use do so on an informed basis… There is some later information about an Ofsted report which could be used as a sifting mechanism, and it may be that there’s a judgment to follow about the decision to anonymise]

The findings :-

I find that there was an agreement between the local authority (who were paying for and who required the assessment) that the Assessment Centre would monitor A 24/7 within the placement. However, in February 2023 Ofsted issued a compliance notice because serious shortfalls were found in the monitoring of two families at the centre that undermined safeguarding practice. Since those incidents a revised CCTV policy has been introduced at the centre and arrangements for monitoring the parents at the centre were strengthened.

At the time A and his parents were at the Assessment Centre, there was no CCTV rota in place. The staff were responsible for monitoring the CCTV at all times, but I find, as Ms X (senior) set out in her written evidence, there may have been times when the office was left empty briefly. In the bedroom A shared with his parents there was a blind spot behind the bedroom door when it was opened and another in the right-hand corner of the window in the bedroom. There is no CCTV in the bathroom. It is accepted on behalf of the mother and the father that in early January 2023 two bath times were wholly unsupervised. The father having heard Mr X (junior) give evidence on the first occasion brought them to the attention of the court. That is to F’s credit. Mr X (junior) had to be recalled to give evidence to explain why the logs did not accurately record what had or had not taken place. In particular, the log of 4 January 2023 gave a misleading picture. It is written as if Mr X (junior) had directly observed the bath time when it is now known he did not. On the CCTV the father can be heard clearly calling that he is about to bath A and no one comes to supervise. On 7 January 2023 the father alerted the staff that he has just bathed A who he then took to the office. These are two clear breaches of the Assessment Centre’s agreement with the local authority. I find that the Assessment Centre did fail to monitor A at all times. I find that towards the end of the family’s placement at the Assessment Centre, it is likely that, as M told me in evidence, towards the end there was less supervision. I find that Mr X (junior) was aware of this. I find that his logs for the two known occasions do not reflect what actually happened because he knew that A was meant to be supervised constantly and he knew that he was not.

I find on the basis of all the evidence before me that whilst at the Assessment Centre, A suffered multiple fractures. He sustained 23 fractures to his ribs which fall into four groups:

i) 6 fractures to the posterior right side
ii) 5 rib fractures to the anterior right side
iii) 8 rib fractures to the anterior left side
iv) 4 rib fractures post laterally on the left side.
In addition, I find that whilst at the Assessment Centre, A sustained a fracture to his left wrist. He also suffered a tear to his lingual frenulum.
I find that the tear to A’s lingual frenulum is likely to have occurred close to the moment when blood was noticed coming from his mouth on 25 December 2022. I accept the radiological evidence which provides a broad timeframe in which the factures are likely to have occurred. The rib fractures are likely to have occurred between 3-8 weeks prior to the skeletal survey on 19 January 2023. The wrist fracture is likely to have occurred 2-5 weeks before the skeletal survey.

…I have read and heard the evidence of many of the staff who worked at the Assessment Centre. They were day and night time family support workers. Whilst the parents did not directly accuse any one of them in the hearing before me of harming A, some were on the list of people who had the opportunity to cause harm. They were understandably anxious when giving evidence and sometimes fearful. However they each gave their evidence calmly and with compassion. I have already made my assessment of the relevant independent witnesses. I find that they did not cause A’s injuries. Specifically I find that Ms H did not cause any injury. She was an impressive witness. She was clearly truthful. The occasion when she nearly dropped A was caught on CCTV and viewed by Professor Fleming. I accept his evidence that nothing he witnessed on the relevant clip is evidence of Ms H causing A to sustain fractures.

…I find that it is likely that F was stressed when feeding A on 25 December 2022. I find that it is likely that he became frustrated when feeding him as he had previously on 3 December 2022. I find that on 25 December 2022 and shortly before 21.45hrs, F had given A his bottle without taking the care that a reasonable parent should have given to him. He did not ensure that the teat was not under A’s tongue, and he placed the bottle in A’s mouth with inappropriate force, sufficient to cause the lingual frenulum to tear. I find that M’s reaction was almost immediate at the sight of the blood. She might not have seen F cause the injury but she saw the aftermath. M did not tell the court the truth when she said she didn’t know what caused A’s mouth to bleed. I find that she knew that A had been fed by his father shortly before blood came from A’s mouth and that she knows in her heart of hearts that F caused that injury. However, I find that she simply could not bring herself in evidence to say he did it.


  1. …On behalf of M, it is submitted in closing that as F caused the lingual frenulum injury, it is inherently improbable that there are two perpetrators and that I should factor that in when considering the fractures and who caused them. However, I balance against that that the mechanism to cause the fractures would have been different.
  2. However, standing back and considering all the evidence as a whole, I find that it is likely that F caused the rib fractures and the wrist fracture. He did so within the radiological time frame which I have already accepted above. I cannot on the evidence pinpoint an event or events and say that is exactly when the fractures occurred. However, F has accepted that on occasion he was too rough when handling A, he was too rushed when carrying out care tasks for his son and he took risks with A. F would not take advice about how to handle his son and thought he knew better. Given the number of fractures and their sites, I find that there is likely to have been more than one occasion when F used more force than a reasonable care giver would give to A and caused his rib fractures and his wrist fractures. I have already accepted Professor Fleming’s evidence that the person causing the injury will have known that they have done something inappropriate even if they do not know that they have caused fractures. I find that F does know that he has harmed A by being too rough with him and using too much force when playing with him and carrying out care tasks. I find that he has chosen not to tell the court what has happened for fear of being thought to have deliberately harmed his son. I find that F did not set out to harm his son but he was over confident in his own ability; too rough when handling A and took risks. He used inappropriate force when handling his son and caused the fractures.
  3. In relation to M’s alleged failure to protect, I take into account that the Assessment Centre themselves did not consider that F would have caused A injury. Thus, whilst they recorded risk taking behaviours and rough handling, they did not intervene to remove A or to stop F carrying out caring tasks. Indeed they bought into his self-confidence and, as I have already found, towards the end of the placement did not supervise him as thoroughly when caring for A as they ought. Having heard the evidence I find that M bought into that confidence, just as the Assessment Centre did. I find that, as she told me in evidence, she did not perceive his handling to be too rough and, although he did things she would not have contemplated doing, she did not perceive him to be a risk (see paragraph 106 above).

A very sad and difficult case.

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Overseas assessment and delay

Posted on March 12, 2025 by suesspiciousminds

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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Private law costs order

Posted on March 4, 2025 by suesspiciousminds

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

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

Re E : Children: Costs 2025 EWCA Civ 183

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

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

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

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

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

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

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

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

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

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

Analysis and conclusion

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

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

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

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

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

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

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

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

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

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

To that extent, I would allow the appeal.

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Should Judges be anonymous? The Sharif Court of Appeal decision

Posted on January 24, 2025 by suesspiciousminds

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

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

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

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

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

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

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

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

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

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

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

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

Here’s the link to the appeal judgment

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

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

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

Anyway, here are the grounds for the appeal

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

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

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

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

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

The Judges in question were approached for their views:-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Posted on January 23, 2025 by suesspiciousminds

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

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

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

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

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

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

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

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

I think that this paragraph is significant :-

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

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

The national guidance says this :-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Setting aside an adoption order

Posted on January 17, 2025 by suesspiciousminds

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusions

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

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

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

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

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Adoption Support

Posted on January 14, 2025 by suesspiciousminds

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

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

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

Theis J summarises the issues accordingly

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

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

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

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

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

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

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

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

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

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

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

Theis J summarises the legal position regarding adoption support

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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