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Tag Archives: Court of Appeal

Cross-examining alleged victim without a lawyer


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

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


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

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



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


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


Re J (Children) 2018

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



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


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

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

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

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


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


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


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


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

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

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

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

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



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


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

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


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


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


He Pooles all his resources

This case is a Court of Appeal decision on something that I’ve never even contemplated before.

If a family are getting bullied or harassed by other local residents, and the Housing authority won’t rehouse the family – can the family SUE the local authority for failing to remove their children into care? (And by inference therefore, DO Local Authorities HAVE to remove children who are being bullied on their local estates if the Housing Department won’t evict the bullies or rehouse the family)

It’s a question that immediately made me go “what the eff? Of course not. And why on earth is a parent trying to sue a local authority for NOT taking their kids off them?”

They were though, see

8.Causation is pleaded in the following terms:

“6.3 On the balance of probabilities competent investigation at any stage would have led to the removal of the Claimants from home. A child in need assessment should with competent care have been carried out in respect of each Claimant by September 2006 at the latest. By September 2006 no competent local authority would have failed to carry out a detailed assessment and on the balance of probabilities such detailed assessment if carried out competently would and should have led to the conclusion that each of the Claimants required removal from home if the family as a whole could not be moved. [Emphasis added] With the information obtained by competent assessment in September 2006 on application to the Court the Defendant would have obtained at lest respite care and if necessary by interim care orders in respect of each Claimant. Any competent local authority should and would have arranged for their removal from home into at least temporary care.”

(Bearing in mind that the parents have the power to accommodate their child under s20 by simply asking, this really is the parents suing the local authority for failing to remove their children against their will….)

But it turns out that the answer given to the question first time around was, yes absolutely. And the answer given was in the High Court, which meant it was binding precedent for CJs and below (which fortunately we all missed because Housing lawyers, tort lawyers and care lawyers don’t talk to each other)

Hence there being an appeal. And if the answer stays yes, brace yourselves for a HUGE spike in care proceedings – which is JUST what we all want at this moment, amiright? #sorrytobreakyoursarcasmfilters

CN and another v Poole Borough Council 2017

Before we start, the title is obviously a play on Poole, and is drawn from my favourite ever Flaming Lips song, which means that it is close to being one of my favourite songs period, because the Flaming Lips are just great.

The song is about Wayne Coyne’s brother, who got high on drugs and decided to go to a convenience store, only when he got there he couldn’t really walk or talk and freaked out the people at the store who called the cops. That’s too simple for a Flaming Lips song, so Wayne adds in that his brother develops a superpower to summon up a host of waterbugs to attack authority figures who are hassling him. And despite the weirdness of the subject matter, it ends up being a song that feels poignant and delicate and beautiful. Enjoy.

But obviously

It was a pretty rotten situation for this family. Their child had severe physical and learning difficulties. There was another family on the estate, known for anti-social behaviour, who as the Court of Appeal say ‘predictably’ started to bully and behave dreadfully towards CN. CN attempted suicide.

You are already wondering why the family are suing the Children’s department of the LA (what we all still call Social Services) rather than Housing – since obviously what they wanted was to be rehoused.

That’s because there’s a firm and clear case called Mitchell, in which the House of Lords held that a person can’t sue the Housing department for this sort of thing.

58.Mr Mitchell was a secure tenant of the local authority, as was a neighbour named Drummond. After a long course of aggression and threats from Drummond, of which the council were fully aware, Drummond killed Mitchell. His widow sued, claiming that the council owed her husband a duty of care and should have intervened, at least by warning about a forthcoming meeting likely further to agitate Drummond. The council’s case was that they owed no duty of care to protect Mr Mitchell from criminal acts by Drummond.

So suing the Housing Department was out, and the lawyers acting for the family instead tried to construct a case on failure of the social services department to safeguard a child in their area from harm arising from the behaviour of people outside the family.

They were relying on a Court of Appeal authority called D v East Berkshire, which removed the previous blanket immunity of local authority social services departments against negligence claims (which had previously been a matter of public policy).

The Court of Appeal were somewhat critical of the failure of the legal representatives of the family to fail to properly grasp the nature of care proceedings. (They obviously weren’t family lawyers, and their understanding of care proceedings is probably on a par with my understanding of tort – I know the broad gist, but not the nuance)

108.Irwin LJ set out at paragraphs 6 – 8 above, the way in which this claim was pleaded namely that the children should have been ‘removed from the care of their mother’. Causation was pleaded as follows:

“6.3 …By September 2006 no competent local authority would have failed to carry out a detailed assessment and on the balance of probabilities such detailed assessment if carried out competently would and should have led to the conclusion that each of the Claimants required removal from home if the family as a whole could not be moved. With the information obtained by competent assessment in September 2006 on application to the Court the Defendant would have obtained at least respite care and if necessary by interim care orders in respect of each Claimant. Any competent local authority should and would have arranged for their removal from home into at least temporary care.”
109.I readily acknowledge that lawyers drafting pleadings in a case of this type may not necessarily have specific expertise in relation to care proceedings. In my view however, it is unacceptable that there appears to have been no understanding of, or reference to, the statutory basis upon which the draconian order sought, (resulting in the unilateral removal of these children from their mother) could have taken place.

110.The pleadings baldly assert that “on application to the Court the Defendant (ie the local authority) would have obtained at least respite care and if necessary by interim care orders in respect of each Claimant”. Such a statement fails to acknowledge that where, as here, a mother does not consent to the removal of her children from her care under an interim care order, the local authority must satisfy the court (pursuant to section 38(2) Children Act 1989) that there are reasonable grounds for believing that “circumstances with respect to the child are as mentioned in section 31(2)”.

111.Section 31(2) provides the ‘threshold criteria’ for state intervention in the care of a child:

“(2) A court may only make a care order or supervision order if it is satisfied-

(a) that the child concerned is suffering, or likely to suffer, significant harm; and

(b) that harm, or likelihood of harm, is attributable to-

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him.”
112.On the facts of the case put before the court, it seems highly unlikely that it could be shown that there were reasonable grounds to conclude that the threshold criteria could be satisfied. Further, numerous Court of Appeal decisions have made it clear that satisfaction of the threshold criteria should not be equated with satisfaction of the case for the removal of a child from its parent. A care plan for the immediate removal of a child from its parent should only be approved by the court if the child’s safety demands immediate separation; see for example Re G (Interim Care Order) [2011] 2 FLR 955, CA. I note, for completeness, that there is no such order as a ‘respite care order,’ let alone as some sort of half way house to an interim care order.

113.In my judgment, the pleadings should have particularised the broad basis upon which it was said the threshold criteria was capable of being satisfied, and, having done so, why it was thereafter averred that the local authority would have been permitted to remove the children from the care of their mother absent her consent. Had that been done, it would have been apparent that not only was the proposal that these Claimant children should have been removed from their mother ‘utterly heartless’ and ‘utterly wrong,’ as characterised by Davis LJ, but legally unsustainable.

Davis LJ went further, and also threw in the word ‘legerdemain’ which is a particular favourite of mine.

116.In any event, I found the formulated claim, by reference to a duty of care asserted to arise from the availability of asserted remedies under the provisions of the Children Act 1989, most disconcerting. The true complaint in reality was about the failure of the housing authorities to re-house the entire family in the light of the activities of the neighbouring family. (Previous proceedings commenced by the claimants and their mother in 2012 against, among others, the Chief Constable of Police and PHP had, I note, not been pursued and were struck out in 2013.) That, as is now accepted, gave rise to no viable cause of action against the relevant housing authorities. To seek then to re-cast the claim for damages against the local authority by reference to an alleged duty to seek and obtain a care order under the Children Act 1989 seems to me little more than legalistic legerdemain, designed to overcome the insuperable obstacles to formulating a viable claim in attacking the housing authorities in the exercise, (or, rather, non-exercise) of their housing functions. The courts should not be prepared to entertain such a step.

117.It was never said that the mother was an unfit mother. She loved and cared for her (vulnerable) children. They loved and needed her. Nothing she did or did not do caused them any harm: it was the harassment of the neighbours which did. True she failed, in spite of all her efforts, to achieve the cessation of that harassment or relocation of her family. But that was not her fault. On the contrary, it was the various agencies which, rightly or wrongly, have been blamed. But why or how could seeking a care order with regard to the children be justified in such circumstances?

118.In the present case, it seems to me that seeking a care order from the Family Court, which potentially would split the family, would not simply have been utterly heartless: it seems to me that such a step would have been utterly wrong. In the circumstances of this case, there was no justification for potentially separating, without the mother’s consent, mother from children, children from mother by use of care proceedings. To countenance care proceedings in the Family Court in order to overcome (or provide a subsequent remedy for) the problems caused by the neighbours on the estate would be, I would have thought, tantamount to an abuse of the process of that court

The Court of Appeal held that there was nothing within this case, sad as it was, that met the very specific and narrow set of circumstances in which Person or Body A (the local authority) was legally responsible for the actions of a third party (the anti-social family living on the state). And thus the application was struck out.

Everyone can breathe now, we haven’t just had an entirely new basis for issuing care proceedings dumped on us. Thank goodness.

The Court of Appeal also suggest very strongly that D v East Berkshire is no longer good law and should not be followed, but as I don’t practice in tort, I’m not going to make the mistake of trying to tell anyone what significance that should have (or whether it just means that it isn’t authority for making a local authority responsible for the actions of a third party outside its control)

Sin is not valid legal currency

A mind-blowingly tricky case, involving hot-button issues on either side.

A mother and father have five children, ranging in ages from 3 to 13. The family are all part of the ultra-orthodox North Manchester Charedi Jewish community. The father left the family home in 2015 and became transgender, he now lives as a woman.

The ultra-orthodox Charedi Jewish community view the father’s actions as ones of choice, and as a sin, and he would be ostracised from the community. If the children were to spend time with their father, they also would be marginalised by their community.

The Judge at first instance, Peter Jackson J (as he then was), concluded that the children would not be upset or traumatised by their father’s transgender status and would cope with it, but that they would be harmed by being ostracised within their religious community. It was a difficult balance expressed eloquently :-

8.Peter Jackson J identified (judgment, para 166) fifteen arguments in favour of direct contact which he described as “formidable”. He could identify (para 168) only two factors that spoke against direct contact. Of the first, relating to the father’s “dependability”, he found (para 172) that “if it were the only obstacle to direct contact, it could probably be overcome.” That left only one factor, which he described (para 173) as “the central question”, namely “the reaction of the community if the children were to have direct contact with the father.”

9.On this, his findings were as clear as they were bleak. He found (para 156) that:

“The children will suffer serious harm if they are deprived of a relationship with their father.”
10.Nonetheless he decided, as we have seen, that there should be no direct contact. He explained why. First (para 177):

“Having considered all the evidence, I am driven to the conclusion that there is a real risk, amounting to a probability, that these children and their mother would be rejected by their community if the children were to have face-to-face contact with their father.”

Then (para 181):

“I … reject the bald proposition that seeing the father would be too much for the children. Children are goodhearted and adaptable and, given sensitive support, I am sure that these children could adapt considerably to the changes in their father. The truth is that for the children to see their father would be too much for the adults.”

And then this (para 187):

“So, weighing up the profound consequences for the children’s welfare of ordering or not ordering direct contact with their father, I have reached the unwelcome conclusion that the likelihood of the children and their mother being marginalised or excluded by the ultra-Orthodox community is so real, and the consequences so great, that this one factor, despite its many disadvantages, must prevail over the many advantages of contact (emphasis added).”
11.We suspect that many reading this will find the outcome both surprising and disturbing, thinking to themselves, and we can understand why, how can this be so, how can this be right?

The case went to the Court of Appeal.

Re M (Children) 2017

2.This is an appeal from a judgment and order of Peter Jackson J, as he then was, made in private law proceedings between the father and the mother of five children, whose ages now range from 13 to 3 years old. His judgment was handed down on 30 January 2017: J v B (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4, [2017] WLR(D) 142. The judgment, which was necessarily lengthy, is freely available to all on the BAILII website, so we can be more limited in quoting from it than might otherwise be appropriate. We do, however, urge anyone who has occasion to read our judgment to read Peter Jackson J’s judgment first.

3.The order was made on 2 February 2017. It was expressed as being a final order. The judge dismissed the father’s application for direct contact (the children live with the mother). The order contained a child arrangements order providing for limited indirect contact, a specific issue order directing that the children were to be provided with “staged narratives” in age-appropriate terms, and a family assistance order under section 16 of the Children Act 1989, naming the children’s guardian as the relevant officer, to remain in force until 1 February 2018. The father sought permission to appeal; the perfected grounds of appeal are dated 17 March 2017. Permission to appeal was given by King LJ on 16 June 2017. On 27 October 2017, McFarlane LJ gave both Stonewall Equality Limited (“Stonewall”) and Keshet Diversity UK (“KeshetUK”) permission to intervene in the appeal, limited to making written submissions. On 10 November 2017, the father applied for permission to admit further evidence, which we admitted de bene esse.

4.The appeal came on for hearing before us on 15 November 2017. Ms Alison Ball QC and Mr Hassan Khan appeared for the father, Mr Peter Buckley for the mother, and Ms Frances Heaton QC and Ms Jane Walker for the children’s guardian. Ms Karon Monaghan QC and Ms Sarah Hannett filed written submissions on behalf of Stonewall and Ms Jane Rayson and Mr Andrew Powell filed written submissions on behalf of KeshetUK. At the end of the hearing we reserved judgment, which we now hand down.

The case in outline
5.The outcome of this appeal is of very great importance to the father, to the mother and the children, and to the ultra-orthodox North Manchester Charedi Jewish community in which the children have always been brought up. But in its potential implications this appeal is of profound significance for the law in general and family law in particular. For on one view it raises the question of how, in evaluating a child’s welfare, the court is to respond to the impact on the child of behaviour, or the fear of behaviour, which is or may be unlawfully discriminatory as involving breaches of Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms or of the Equality Act 2010.

I suspect most readers have already formed a firm view as to what is the right outcome here – but I also suspect that not everyone will have the same firm view. It is decidedly tricky. For my part, I struggle to see how the views of an intolerant religious community should deprive the children of their relationship with their father (until such time as the children can make up their own mind about where their preferences lie), but I am mindful that I come to this as a wholly secular person who does not hold religious beliefs. Might I think differently about it if faith was a major part of MY life, as it clearly is for this family?

The judgment
12.Having thus introduced the issues which confront us, we turn to a more detailed analysis of Peter Jackson J’s judgment. After an Introduction (judgment, paras 1-11) and a section dealing with Terminology (paras 12-16), he set out a Narrative of events (paras 17-36), to which we refer the reader. For present purposes, there are only two matters we need to refer to. The first, (para 33) relates to the minutes of a “Team around the children meeting” held within the community in April 2016. Of these minutes, the judge made this observation (para 34):

“These Minutes are of interest. Not having been prepared with these proceedings in mind, they illustrate the prevailing mindset. There is at least as much concern for the community as for the children. The father was entirely ignored.”

The other matter relates to something which the judge referred to (para 36) as an example of the high level of tension surrounding the proceedings:

“In November [2016], on the first morning of the hearing, an unidentified member of the community posted this WhatsApp message:


Family [name]’s (A Mother & her 5 Children) fate is in court this morning (for the next 10 days). Please Daven [pray] for them. We can’t afford to lose this case. The Rabbonim [rabbis] have asked for this message to be sent. The family know and want it to be sent. Pls forward this message. The koach of tefilloh [power of prayer] can achieve everything.””
13.The judge then turned to the law (paras 37-56). There has been no challenge to his analysis.

14.Then in a long section (paras 57-142) the judge rehearsed the evidence. For present purposes we can be selective. In the course of setting out the mother’s evidence (paras 69-77), the judge said this (paras 73-74):

“73 The mother described the father as having been “severely ostracised” by the community. She had no other experience of the reaction of the community to transgender or homosexual people, but described the problems for a neighbour’s children when their mother wanted to leave the religion and the consequences when one of her female cousins began to deviate in her style of dress. She said that she was very aware that the schools must uphold British values, but that “the parent body are the school”. Respect must be shown for people, no matter who they are, but at the same time the ethos of the school must be upheld, no matter what. Transgender is extremely alien to the community and against religious law. As for homosexuality, young children are not faced with it. As she put it: “I uphold the British law within our faith.” If there is a conflict between law and faith, she would follow her faith, though she would not commit a crime. The present circumstances put her in a very difficult position.

74 The mother said that there is no way that direct contact will work out for the children, for their identity, for their culture and for their whole environment. She said this, even though she knew that she and the children are entitled to legal protection against victimization. The schools would probably not throw out the children, but the environment would become hostile. The parent body would not allow their children to play with the children, and no one can tell others how to bring up their own children. “They will protect their children from contact. They wouldn’t want my children to suffer and will have every sympathy, but their own children will come first.” The children’s next schools would not have to take them, and could just say they were full. “Are we going to get the whole community to tell them off?” The mother can see the children being rarely invited to family events and festivities because people would be nervous about what they would say. There would be extreme supervision and the children’s participation would be kept at a very basic level. Already, A is being asked questions and is reluctant to commit himself fully within his peer group. This, said the mother, is “the reality – it’s who we are”.”
15.Particularly striking in this context, was the evidence of Mrs S, a very experienced foster carer who identifies herself as an observant modern Orthodox Jew, of whom the judge said this (paras 108-111):

“108 Mrs S, who clearly has a close knowledge of the workings of the community, described its unhappiness at children being fostered outside the community, though it acknowledged that she was a preferable carer to any of the available alternatives.

109 Mrs S provided two striking instances of the way in which children exposed to ‘outside influences’ will be ostracised. In 2015 Child A, a 15-year-old girl who had been sexually abused in the community was placed in her care. The girl was not invited to Hanukkah gatherings by her classmates. When Mrs S challenged the mother of one of the girl’s close friends about this, she explained that she could not risk her daughter hearing about “things” as children in the community were kept innocent and sheltered. When Mrs S described the distress that these actions were causing, the mother did invite the girl to her house, but only under strict supervision. The child lost her best friend and all her childhood friends. She now attends a different school and has absolutely no association with her former social circle.

110 Mrs S spoke of Child B, whom she had fostered from another ultra-Orthodox community. The child, aged 14, had been sexually and emotionally abused within her family and the wider community since the age of 11. She had made statements to her school about her abuse. The response had been to put her on a plane out of the country and invent a story to explain her absence. When she was returned to the country and placed in foster care, “all hell broke loose”. Mrs S said that she personally had a broad set of shoulders but that it had been a struggle to protect the child at the beginning. She was rejected by her family and no longer allowed to talk to friends. As Mrs S put it, “It’s the knowledge that is the issue.”

111 Mrs S freely described these as “awful case studies”, which she related to assist the court to understand that this response was the norm where religious culture, identity and laws are breached. She said that they were not “standout cases”. At the beginning of her fostering career, they would have had her “up in arms”, but she now saw this behaviour as being unchangeable – by local authorities, foster carers, courts and the law. “They will find a way around it.””

Of the cases described by Mrs S, the judge said this (para 178(3)-(4)):

“The cases of Child A and Child B, described by their foster carer Mrs S, show the lengths to which the community is prepared to go, regardless of the justice of the matter or the welfare of the young people … They are clear examples of discrimination and victimisation (there is no other apt description) in cases that did not raise anything like as problematic a challenge to community attitudes as the present case (emphasis added).”
16.Also of importance, as we shall see, in influencing the judge’s thinking, was the evidence of Rabbi Andrew Oppenheimer (paras 90-102). This part of the judgment requires to be read in full. Here we merely quote the salient passages. First (paras 91-92):

“91 Rabbi Oppenheimer describes Charedi communities as “warm, close-knit and supportive communities for which the teachings of Torah Judaism guide all aspects of their lives … The teachings of the Torah also highlight integrity, respect for others, peace and justice (including respect for the law of the country) and place the family and its welfare at the heart of life … Allegiance to the lifestyle … means of necessity that members have traditional values and seek to guard their children and themselves against what they regard as the dangers and excesses of modern open society.”

92 Rabbi Oppenheimer was clear that transgender and procedures to achieve sex change violate a number of basic principles in Torah Law, including the prohibition against castration (Leviticus 22.24) and the prohibition against wearing garments of the opposite sex (Deuteronomy 22.5).”
17.Next (paras 95-96):

“95 In regard to the attitude of the community, Rabbi Oppenheimer writes:

“Where a person decides to take action likely to be irreversible to transgender, Ultra-Orthodox community members will invariably take the view that, by embarking on that course, the transgender person has breached the contract which they entered into when they married their wife to observe the Torah and to establish and bring up a family in accordance with its laws. Furthermore, members of the community will naturally wish to protect themselves and their families from any discussion of the painful issues involved, especially bearing in mind the sheltered position of the community from the standpoint of open society. Knowledge of transgender amongst children in the Ultra-Orthodox Jewish community is almost non-existent, for the reasons mentioned above concerning their lack of access to Internet and the media. There is no known precedent in the UK of a transgender person being accepted living in an Ultra-Orthodox community.

The result will be that community members will expect the family of the transgender person to limit their contact with him or her as far as possible. If the family of the transgender person nevertheless seeks, or indeed is forced, to maintain contact with that person, they will open themselves up to very serious consequences indeed. The families around them will effectively ostracise them by not allowing their children to have more than the most limited contact with that family’s children. The impact on the family in such circumstances in terms of social isolation will be devastating.

In considering the best interests of the children the obvious conclusion from the discussion above is that the children of an Ultra-Orthodox union cannot and should not be expected to have any direct contact with the father in such circumstances. It will no doubt be argued against this approach that it is cruel, lacking in tolerance, unnecessary and denies the rights of the father. But Torah law (Halacha) has the same approach to English Family Law in this type of situation, regarding issues of residence and contact, that the interests of the children are paramount. In other words the father is expected to give precedence to the needs of the children over his own needs.”

96 In his oral evidence, Rabbi Oppenheimer remarked that “ostracise” was perhaps not the best word to use for a process that would not be organised but more subtle and inevitable – “it would be so much more”.”
18.Then this (para 97):

“He … asserted that under the Torah and in reality a person is considered to have a choice, albeit a difficult one, as to whether they become transgender. If they do, they choose to place themselves outside the embrace of the community. In Torah law, to be gay or transgender is to be a sinner. Even though it may be looked on with compassion, and some people may extend the hand of friendship, that does not alter its unacceptability. The mother could not remain married to a person who made that decision. She should still seek in a constrained way to promote respect for the father but at the same time to protect the children from the consequences until they are old enough to deal with them. Young people cannot deal with these issues without undermining their faith. There is too much of a conflict to understand. There is therefore an obligation to protect the children from finding things out that are likely to damage them and cause them pain and suffering, likely to damage their growth and spiritual well-being. By educating children in the way of the Torah, they are brought up as upright people.”
19.And then, finally for present purposes, this (paras 99-101):

“99 Rabbi Oppenheimer explained that excluding ideas that might damage the development of children is “the price we pay – we limit ordinary social contact so that we transmit our spiritual ethos to the next generation”.

100 When pressed about the impact of ultra-Orthodox custom and practice in a case such as the present, Rabbi Oppenheimer replied with some warmth that this had nothing to do with emotions or feelings – it was contrary to Torah law for the children to be exposed to transgender. Further pressed as to the basis for this assertion, the Rabbi fell back upon the overriding consideration in Leviticus to be holy and to separate oneself from anything contrary to the Torah.

101 Indirect contact, on the other hand, would not, he thought, give rise to such a risk of ostracism, as it would not enable the children to have “a living relationship”.”
20.Pausing at this point there are two points which require emphasis.

21.The first is the community’s determination – what Rabbi Oppenheimer described as its “obligation to protect the children from finding things out that are likely to damage … their growth and spiritual well-being” – to shield its children from knowledge of and exposure to such matters as sexual abuse, homosexuality and transgenderism and, more generally, what Rabbi Oppenheimer called the “excesses of modern open society”; and to restrict its children from coming into contact with children who have such knowledge or have been so exposed.

22.The second is Rabbi Oppenheimer’s chilling explanation as to why indirect contact would not give rise to a risk of ostracism: “it would not enable the children to have “a living relationship”.”

23.Peter Jackson J’s response to this was brisk (paras 179-180):

“179 In balancing the advantages and disadvantages of the children being allowed to see their father, I apply the law of the land. Some witnesses in these proceedings assert that gay or transgender persons have made a lifestyle choice and must take the consequences. The law, however, recognises the reality that one’s true sexuality and gender are no more matters of choice than the colour of one’s eyes or skin.

180 It has also been said that transgenderism is a sin. Sin is not valid legal currency. The currency of the law is the recognition, protection and balancing out of legal rights and obligations. In this case, to be recognised and respected as a transgender person is a right, as is the right to follow one’s religion. Likewise, each individual is under an obligation to respect the rights of others, and above all the rights of the children.”
24.In striking contrast with Rabbi Oppenheimer’s evidence was that of Rabbi Ariel Abel (paras 78-83), who described himself as mainstream Orthodox and falling under the authority of the Chief Rabbi. He grew up in the North Manchester Charedi community and has experience of communities in London, Liverpool and Manchester at various levels of orthodoxy. The judgment (paras 80-81) summarised his evidence:

“Rabbi Abel emphasised the central importance of honouring one’s parents within Jewish law and tradition. He said that there is scarcely any circumstance in which the obligation to honour one’s father does not apply. Even if the father is an outright sinner, which is not in his view a consideration in this case, the obligation persists. He considered this aspect of the matter to have been left untreated by Rabbi Oppenheimer.

In relation to transgender, Rabbi Abel considered that there is a plurality of opinion and that the biblical position may be qualified. He contends that there is no valid reason why any person should plead ultra-Orthodox faith as a reason to disenfranchise a person in the position of the father. “There is no legitimate reason to maintain that children who are transgender-parented cannot experience in the ultra-Orthodox community a full and satisfying Orthodox Jewish life, physically, spiritually, emotionally and communally.” On the contrary, there is every reason to reunite parent and child as it is the well-being of the nuclear family and not the social preferences of the wider community that truly matter. He points to commentary by the noted encyclopaedist, the late Rabbi Waldenberg, in support of his contention that Orthodox Judaism, correctly understood, recognises the existence of, and to a certain extent accommodates, a number of non-binary identities, including transgender. He argues that the transgender issue cannot be ignored and that parents’ relationships with their children are inalienable.”
25.The judgment continues (paras 82-83):

“Rabbi Abel objected to the concept (introduced by Rabbi Oppenheimer) of the faith as a club from which people could be ejected, though he observed that this evidently happens. An approach of this kind, practically amounting to a belief, raises itself to the surface, usually in worst-case scenarios. This is a social cultural reality, not a valid Orthodox reason for separating children from parents. There is a lamentable habit of censoring. Children of divorced parents can be seated separately from other children and he had experience of this, something he described as beggaring belief. In his view, this should not be accommodated or excused in Jewish or English law. On the other hand, he had never heard of total ostracism in practice, provided the contentious matter was treated privately within the family, and not paraded before the community. However, he accepted that ostracism for these children could very possibly happen if the situation was not managed correctly with professional help. What was needed was psychological support: religious teachers should be kept out of it.

The Rabbi accepted that the present circumstances would be a challenge to the insular North Manchester community. He argued that when it comes to matters of life and death, you have to break free and seek to work with the unfamiliar problem. He gave as an example creative arrangements that might be made to allow the father to participate in A’s bar mitzvah. There are ways, and it can happen if there is a will. The issues are significant, but not insurmountable. The community is not monolithic, but multifarious. It will step back if proper arrangements are made by both parents. If the situation is unregulated, the community will take matters into its own hands. If direct contact was ordered, and the law laid down, he did not think that the community would “go to the wire” fighting an unwinnable battle.”
26.We have set this important evidence out in full because it seems to us to hold out hope of a change. Rabbi Abel demonstrates that there exists what we imagine is a lively debate, perhaps within this thoughtful, law-abiding and intellectual community and probably Orthodox Judaism generally, of the issues to which transgenderism gives rise. Does it not provide some support for a conclusion in this case that the views which drove the judge are not universally inflexible?

So even within the religious community there was a deep schism about what the Torah says and what in practice might happen if the children were to see their father. Of course, the Judge dealing with the case didn’t have to deal with what position the ultra-Orthodox community SHOULD take, but what position they realistically WOULD take

30.The judge then turned (paras 143-161) to consider the welfare checklist. For present purposes, we need refer only to this (paras 156-157), which really encapsulates the dilemma confronting him:

“156 The children will suffer serious harm if they are deprived of a relationship with their father.

157 The children would suffer serious harm if they were excluded from the normal life of the community.”
31.Finally (paras 162-191) the judge set out his Assessment and conclusion. He began as follows (paras 162-165):

“162 I find this a very troubling case. These children are caught between two apparently incompatible ways of living, led by tiny minorities within society at large. Both minorities enjoy the protection of the law: on the one hand the right of religious freedom, and on the other the right to equal treatment. It is painful to find these vulnerable groups in conflict.

163 A great deal of time has been spent at this hearing on consideration of the laws and customs of the ultra-Orthodox community. This is natural, given that it is the community within which the children live. However, Ms Ball QC and Ms Mann for the father argue that one must not look only through an ultra-Orthodox lens. I agree. Despite its antiquity, Jewish law is no more than 3,500 years old, while gender dysphoria will doubtless have existed throughout the 120,000 years that Homo sapiens has been on earth. Both sides of the question must therefore receive careful attention.

164 Faced with this intractable problem, it is not for the court to judge the way of life of the ultra-Orthodox Jew or of the transgender person. The court applies the law, and in this case its task is to identify the outcome that best upholds the children’s welfare while minimising so far as possible the degree of interference with the rights of all family members.

165 Here, the best possible outcome would be for the children to live with their mother, grow up in the community, and enjoy a full relationship with their father by regular contact. The worst outcome, I find, would be for the mother and children to be excluded from the community. The question is whether, in striving for the best outcome, the court would instead bring about the worst.”
32.He then (para 166) listed the fifteen “formidable” arguments in favour of direct contact to which we have already referred. In relation to the second factor identified by the guardian (see paragraph 28 above) he said this (para 172):

“… the father’s approach to contact would not be a reliable, static factor. It would be a variable amongst other variables. I share the view of the Anna Freud Centre and the Guardian that this must be taken into account when considering children’s welfare. It speaks for caution, but no more than that, and if it were the only obstacle to direct contact, it could probably be overcome.”
33.Turning to the “the central question of the reaction of the community if the children were to have direct contact with their father,” the judge (paras 174-176) summarised counsel’s competing submissions before expressing his conclusion as follows (para 177):

“Having considered all the evidence, I am driven to the conclusion that there is a real risk, amounting to a probability, that these children and their mother would be rejected by their community if the children were to have face-to-face contact with their father. I say “driven” because I began the hearing with a strong disposition to find that a community described by Rabbi Oppenheimer as “warm, close and supportive” and living under a religious law that “highlights integrity, respect for others, justice and peace” could tolerate (albeit without approval) these children’s right to and need for a relationship with their father. The evidence that was available before the hearing contained dire predictions, but no actual examples of ostracism. I pointed this out, and this led to a number of new statements being gathered, including significant evidence from the foster carer, Mrs S.”
34.He explained his conclusion (para 178) in twelve sub-paragraphs of which we quote the following:

“(1) It does not depend upon any view of what Jewish law is in relation to transgender, but upon what the community is likely to think it is and act upon. It may be that the humane and progressive views of Rabbi Abel and Mr Bernard will one day gain acceptance in the ultra-Orthodox communities, but I consider that in the present day the community in which the children live and go to school will, rightly or wrongly, defer to the stance described by Rabbi Oppenheimer and the authorities he cites.

(3) The cases of Child A and Child B, described by their foster carer Mrs S, show the lengths to which the community is prepared to go, regardless of the justice of the matter or the welfare of the young people (emphasis added).

(4) I cannot distinguish these cases in the way suggested by Ms Ball. They are clear examples of discrimination and victimisation (there is no other apt description) in cases that did not raise anything like as problematic a challenge to community attitudes as the present case (emphasis added).

(5) There is a consistent account from all those within the community of how it will behave …

(6) The father [and his witnesses] all accept to a substantial degree that this is what the community is like. Their thesis is that it can be managed or made to change.

(7) There is, to say the least, evidence that the practices within the community, and in particular its schools, amount to unlawful discrimination against and victimisation of the father and the children because of the father’s transgender status (emphasis added). However, the fact that the practices may be unlawful does not mean that they do not exist.

(8) I was particularly impressed by the evidence of Mrs S, an informed outsider, who compellingly described the reaction of the community to situations of which it disapproves.

(9) I was also struck by Rabbi Oppenheimer’s unyielding defence of the religious and social position as illustrating the stance that can be taken by educated persons.

(11) There is no evidence that any person in a position of authority or influence within the community wishes to challenge the behaviour of its members, still less that significant change could be expected within these children’s timescale.

(12) In these circumstances, I do not consider that there is any real prospect of a court order bringing about a beneficial alteration in the attitude of the community towards this family, even to the extent of some relatively limited normalisation of approach. This must be a subject for regret, not only for this family, but also for others facing these issues in fundamentalist communities, for whom this will be a bleak conclusion. However, these considerations cannot deflect the court’s focus from the welfare of these five children.”
35.He continued (paras 182-183):

“182 And here we come to the sad reality. I can see no way in which the children could escape the adult reaction to them enjoying anything like an ordinary relationship with their father. In the final analysis, the gulf between these parents – the mother within the ultra-Orthodox community and the father as a transgender person – is too wide for the children to bridge. They would be taught one thing in their daily lives and asked to do the opposite on repeated, conspicuous forays into the outside world, which they would have to keep quiet about afterwards. The mother, a religiously observant person, would be required to sustain something that she has been taught is religiously wrong. A, aged only 12, is already extremely anxious about contact and now feels protective towards his mother and younger siblings. Embarking on contact would place him under extreme pressure, which would inevitably have a detrimental effect on his development.

183 The children, and the mother on whom they depend, would have no effective support to deal with any of this: on the contrary, they would face suspicion or outright opposition from every quarter. The likely result is that their individual and collective well-being would be undermined to the point where their ability to remain in the community would be put at risk, or at the very least placed under permanent and severe strain, with … “a negative impact on how they function in the widest possible sense both now and in the future”.”
36.He added (para 185):

“These parents decided to bring up their children according to the narrow ways of the community, and they continue to agree about this. That being the case, the priority must be to sustain the children in the chosen way of life, preserving their existing family and social networks and their education. It is not to be forgotten that children have the right to preserve their identity (UNCRC Art.8), something that is a matter of particular pride to these children. Contact carries the clear risk that the children and their mother will become the next casualties in a collision between two unconnecting worlds. The father has already experienced the consequences of that collision, and no one knows better than she does how very painful they can be.”

The Court of Appeal had some very difficult issues to consider

42.It is important at the outset to be clear as to why the court – the State – is involved in the present case. It is because the parents have been unable to resolve their family difficulties themselves, whether with or without the assistance, formal or informal, of the community, and because one of the parents, in this case the father, has sought the assistance of the court. The court cannot decline jurisdiction. And, as judges sitting in a secular court, we must necessarily determine the case according to law, in this instance the law as laid down by Parliament in section 1(1)(a) of the Children Act 1989: see Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677, paras 92-93.

They conclude that the case had to be sent back for re-hearing (note that they do not say that the father MUST have contact, just that the case needs to be re-heard )

Our reasons for disagreeing with the analysis of the judge
76.In our judgment, Peter Jackson J’s judgment is vulnerable on a number of grounds, all interlinked but which, for purposes of clarity and analysis, it is appropriate to keep distinct.

77.First, the judge, having arrived at his conclusion (judgment, paras 182-188), did not at that point step back and ask himself what, we think, were a number of highly pertinent questions. We have already touched on much of this, but it bears further elaboration. For example, he should, we respectfully suggest, have asked himself: how do I, indeed, how can I, properly accommodate this conclusion with my role as the judicial reasonable parent applying the standards of reasonable men and women today? Can I properly come to a conclusion dictated, as I have found (judgment, paras 34, 178, 181), by the practices of a community which involve discrimination and victimisation and where the community’s focus is as much on itself and the adults as on concern for the children or child welfare? Is it enough simply to proceed on the basis (para 185) that “These parents decided to bring up their children according to the narrow ways of the community, and they continue to agree about this (emphasis added)”? Should I not directly and explicitly challenge the parents and the community with the possibility that, absent a real change of attitude on their part, the court may have to consider drastic steps such as removing the children from the mother’s care, making the children wards of court or even removing the children into public care? Should I not directly and explicitly confront the mother and the community, which professes to be law abiding, with the fact that its behaviour is or may be unlawfully discriminatory? And, not least, how can this outcome meet even the medium let alone the long-term needs and interests of the children? How can this order give proper effect to the reality, whether the community likes it or not, that the father, whether transgender or not, is and always will be the children’s father and, as such, inescapably part of their lives, now, tomorrow and as long as they live? The judge’s omission to address these questions seriously undermines, indeed, in our judgment vitiates, his ultimate conclusion.

78.Secondly, and in saying this we are very conscious of the forensic reality that this part of the case was not much explored before him, and he did not, of course, have the benefit of the submissions we have had from Stonewall and KeshetUK, we are bound to say it is very unfortunate that the judge did not address head on the human rights issues and issues of discrimination which plainly arose. His judgment recites though largely without analysing (judgment, paras 44-51, 53-56) various Convention and statutory provisions to which the father in particular had referred. But apart from the passages we have already set out, the judgment says virtually nothing else about these vitally important issues – no doubt, in this respect, reflecting the limitations of the arguments that had been addressed to the judge. This is a matter we return to below.

79.Thirdly, there is much force in the argument that the judge did not sufficiently explain why, given the basis of the mother’s and the community’s objection to direct contact, it was nonetheless feasible to contemplate indirect contact. Indeed, there is little discussion of the issue in the judgment. The judge recorded the mother’s position as being (judgment, para 9):

“The mother had been opposed to any contact but, having seen the professional advice, now accepts that the children should have indirect contact with their father three times a year. She opposes direct contact of any kind during their childhoods as that, she claims, will lead to the children and herself being ostracised by the community to the extent that they may have to leave it.”

We have already recorded (paragraph 22 above) Rabbi Oppenheimer’s views on the subject. The judge was pressed in argument (judgment, para 174) with what we think was the well-founded point, “It is not clear why indirect contact is said to be acceptable, while direct contact is not.” After all, as we have observed (paragraph 21 above), the concern of the community is to shield its children from knowledge of and exposure to such matters as transgender, and to restrict its children from coming into contact with children who have such knowledge or have been so exposed. Surely, from that point of view, indirect contact must carry with it precisely the same kinds of risk as direct contact. The judge did not address the point, merely saying (judgment, para 188) that, having refused an order for direct contact, “I will instead make an order for indirect contact. I see no reason why this should not take place four times a year.” We emphasise that this is not an argument against indirect contact; on the contrary, it is, it might be thought, an argument in favour of direct contact.
80.Fourthly, we think there is considerable substance in the complaint that, as Ms Ball puts it, the judge “gave up too easily” and decided the question of direct contact then and there and without directing even a single attempt to try and make it work. The judge recognised, by making the specific issue order directing preparation of “staged narratives”, that there was further work to be done by the guardian and the Anna Freud Centre. As Ms Ball asks rhetorically, and in our judgment there is substance in the point, why not defer a final decision on direct contact pending the outcome of that, and perhaps further, work, including work by the GesherEU Support Network about which the judge (judgment, paras 84-89) had heard evidence? Moreover, as we have already observed, why not first directly and explicitly challenge the parents and the community with the possibility that, absent a real change of attitude on their part, the court might have to consider the drastic steps we have referred to? Why not directly and explicitly confront the mother and the community with the fact that its behaviour is or may be unlawfully discriminatory? And why not attempt, even if the prospects may have seemed forlorn, the kind of step by step process adopted by Her Honour Judge Rowe QC in Re X (Number 1: Religious Differences: Schools) [2014] EWFC B230, Re X (Number 2: Orthodox Schools) [2015] EWFC B237, and Re X (Number 3: Division of Religious Festivals) [2016] EWFC B91. In our judgment, the decision which judge came to was indeed premature.

81.It follows that, in substance, the father makes good all three grounds of appeal.

82.The parties were rightly agreed that if this was our decision it would not be appropriate for us to determine what the outcome should be. The matter will have to go back for a further hearing which, in the circumstances, will be before Hayden J. Precisely what the scope of that hearing should be will be a matter for the judge. We do not anticipate a rehearing of the very full evidence on the religious views which Peter Jackson J heard but otherwise leave the scope of the evidence at the rehearing to the judge. That said, we need to make explicit what ought to be clear enough already. What we say about the community is based on the evidence adduced by the parties to these proceedings and on the findings of the judge. The community are not parties and have had no opportunity to make representations. Our observations about the community should be read on that basis.

83.In view of the fact that, for the reasons set out earlier, we propose to allow this appeal and remit the case to the family court for reconsideration, it is unnecessary for us to address at length either the issues of equality law which may arise or the issues under Article 9 of the Convention. However, we hope that it will assist the family court in its reconsideration of the case if we set out some of the issues that may have to be addressed, dealing first with equality law and then with Article 9.

The Court of Appeal then did address the equality issues

95.It is well-established on authority that discrimination which is motivated by a religious belief (however sincerely held and even if the discrimination is mandated by that religious belief) does not make discrimination under the Equality Act lawful: see Regina (E) v Governing Body of JFS and another (United Synagogue and others intervening) [2009] UKSC 15, [2010] 2 AC 728, para 35 (Lord Phillips of Worth Matravers PSC) and para 65 (Lady Hale JSC). See also Regina (Williamson and Others) v Secretary of State for Education and Employment [2005] UKHL 15, [2005] 2 AC 246, para 58, where Lord Walker of Gestingthorpe cited with approval what had been said by Mason ACJ and Brennan J in the High Court of Australia in Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria) (1983) 154 CLR 120, at 136:

“Religious conviction is not a solvent of legal obligation.”
96.In the present case we are anxious that no assumption should wrongly or unfairly be made that any school attended by the children concerned has acted unlawfully or will do so in the future. As we have already mentioned, if a school were to ostracise a pupil on the ground of his or her father’s transgender status, that would be likely to amount at least to the imposition of a “detriment” on that child which is unlawful under the Equality Act. The courts of this country expect schools to comply with their legal duties under that Act as well as generally.

97.Nevertheless, we are equally concerned that, should there be action by a school which is unlawful under the Equality Act, the courts of this country should not, as a matter of public policy, simply treat it as a factor to be weighed against permitting direct contact between the father and children. To do so would, in our view, be contrary to the rule of law.

98.Accordingly, when this case returns to the family court, we would expect the judge to consider very carefully:

i) whether there would in fact be unlawful conduct even in the face of an order of the court granting the father direct contact with her children; and

ii) to what extent such unlawful conduct should be given weight in the balance to be conducted in assessing what are the best interests of those children

115.When the present case returns to the family court we anticipate that the court will wish to scrutinise with care the suggested justification for the apparent discrimination which the father faces on the ground of her transgender status, not least to ensure that the court itself does not breach its duty under section 6 of the HRA.

What about the issues about religious discrimination? What guidance do the Court of Appeal give in that regard?

130.In the absence of any further finding by the judge about the nature of the debate on transgender in the Charedi community, we must proceed on the basis that the views which Rabbi Oppenheimer attributed to the Charedi community are the community’s views and that their actions to exclude the children would be an expression of those beliefs. That approach then puts their religious beliefs at their highest.

131.If the matter has in due course to be determined by the court, we would take the view that in the light of developments in Strasbourg jurisprudence there would be force in Ms Ball’s submissions that the community’s beliefs, which resulted in the ready exclusion of young children from the rest of the community, did not meet the criteria set by the Strasbourg court for a religious belief that was entitled to protection under Article 9 (see paragraphs 119 and following above). In that situation, we would expect the leaders of the community to help the community to adopt a more flexible attitude to their beliefs as they might affect the children.

132.The mother and children also have their rights under Article 9, but they are outside the discussion in these paragraphs. Clearly, the courts must likewise not restrict their rights to any greater extent than that permitted by Article 9(2). The courts have a statutory obligation under section 6 of the HRA to act compatibly with the Convention.

133.We can, therefore, return to the question whether, if this court were ultimately to make an order for direct contact, that would violate the rights of the community under Article 9.

134.It is not appropriate for us to give any final view in answer to this question as that stage has not yet been reached. Provisionally, however, it seems to us that, if a court were to make an order granting the father some form of direct contact to the children, it would have to have concluded, after the most careful consideration with the parties, that that course was in the best interests of the children. If this involves any interference with any rights of the community to manifest their religious beliefs, we doubt that there would be any violation of the community’s rights under Article 9. This is because the court, as an organ of the State, will on this basis have decided that a restriction that may be involved of their right to express their religious beliefs serves the legitimate aim of protecting the children’s rights to have contact with their father and thus to enjoy family life with him, which rights are vital to their well-being. As the President held in Re G, para 43:

“In matters of religion, as in all other aspects of a child’s upbringing, the interests of the child are the paramount consideration.”
135.In making that decision, the restriction under consideration would meet the requirements of being prescribed by law. It is part of the court’s jurisdiction to make orders regulating parents’ access to their children. It would be proportionate because it would not be made immediately on the father’s application, but only after a period of further reflection in which the court has had time to consider further evidence if it wished so to do.

So whilst the Court of Appeal say that they have not reached a conclusion about the merits of the case other than that it should be re-heard, they drop the heaviest of hints that if the trial Judge finds himself in this dilemma

“156 The children will suffer serious harm if they are deprived of a relationship with their father.

157 The children would suffer serious harm if they were excluded from the normal life of the community.”

Then the religious community are going to be the ones to lose out.

Very difficult case. Just in case the first hint was not over enough, the Court of Appeal hire a very large crane and use it to lower a heavier hint into position

Concluding observations
136.It may very well be when the matter has been further considered that there is room for some compromise position. As we have made clear, we consider that, under Strasbourg jurisprudence, each side has to be prepared to compromise. That means that it must be ready to make some concession, and the compromise must be one which is appropriate in a plural, democratic society governed by the rule of law.

137.Moreover, by the time any direct contact takes place, subject to the further directions given in these proceedings, these children are likely (as mentioned) to have had assistance of the highest standard in coming to terms with their father’s decision. We envisage that the assistance will make them aware of the need to be sensitive to the views of others, including (as at present) their own community, which is unable as we understand it to accommodate changes of identity within their own interpretation of their religious laws. These are difficult areas for the holders of faith, which underscores the need for broadmindedness and tolerance in our diverse society.

138.In our judgment, the best interests of these children seen in the medium to longer term is in more contact with their father if that can be achieved. So strong are the interests of the children in the eyes of the law that the courts must, with respect to the learned judge, persevere. As the law says in other contexts, “never say never”. To repeat, the doors should not be closed at this early stage in their lives.

Parents can consent to restriction of liberty for children under 18, Court of Appeal rules

This appeal overturns Keehan J’s decision that whilst a parent could consent to a foster care arrangement that involves a restriction of liberty for a child under 16 (which thus means that it does not require either Secure Accommodation or court authorisation), they cannot do so for a child aged 16-17 and 363 days.

Re D (A child) 2017

The Court of Appeal considered things very carefully and in huge detail. I don’t have time for the detailed analysis that the case merits, but it is an important decision, so people need to know it. The Court of Appeal felt, looking at things closely, that there was no magic in the age 16 when dealing with young people who lack capacity.

84.This has an important corollary. Given that there is no longer any ‘magic’ in the age of 16, given the principle that ‘Gillick capacity’ is ‘child-specific’, the reality is that, in any particular context, one child may have ‘Gillick capacity’ at the age of 15, while another may not have acquired ‘Gillick capacity’ at the age of 16 and another may not have acquired ‘Gillick capacity’ even by the time he or she reaches the age of 18: cf, In Re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11, pages 24, 26.

128.In my judgment, in the context with which we are here concerned (see paragraphs 84-85 above), parental responsibility is, in principle, exercisable in relation to a 16- or 17-year old child who, for whatever reason, lacks ‘Gillick capacity’.

Consider a dentist, who is deciding whether to treat someone who is not an adult. If a 7 year old says “I don’t want you to take my teeth out” the dentist will of course look to the parent to say yes or no, and won’t take the child’s views as being final. If a 15 year old says that, the dentist may try to encourage and persuade, but can’t really just operate against the 15 year old’s will, and nor can they just take parental consent. The 16 year old with capacity has autonomy over their own body and mouth. BUT if the parents come with a 16 year old and explain that as a result of special needs, the young person lacks capacity, the dentist would probably be able to take the parental consent as being valid. The parents are exercising parental responsibility for a young person who does not have Gillick competence to make their own decisions (even though they are of an age where most young people would be)

I’m not sure that I agree with this conclusion, and I feel that it has some issues with Lord Kerr’s formulation in Cheshire West.

“77 The question whether one is restricted (as a matter of actuality) is determined by comparing the extent of your actual freedom with someone of your age and station whose freedom is not limited. Thus a teenager of the same age and familial background as MIG and MEG is the relevant comparator for them. If one compares their state with a person of similar age and full capacity it is clear that their liberty is in fact circumscribed. They may not be conscious, much less resentful, of the constraint but, objectively, limitations on their freedom are in place.

78 All children are (or should be) subject to some level of restraint. This adjusts with their maturation and change in circumstances. If MIG and MEG had the same freedom from constraint as would any child or young person of similar age, their liberty would not be restricted, whatever their level of disability. As a matter of objective fact, however, constraints beyond those which apply to young people of full ability are – and have to be – applied to them. There is therefore a restriction of liberty in their cases. Because the restriction of liberty is – and must remain – a constant feature of their lives, the restriction amounts to a deprivation of liberty.

79 Very young children, of course, because of their youth and dependence on others, have – an objectively ascertainable – curtailment of their liberty but this is a condition common to all children of tender age. There is no question, therefore, of suggesting that infant children are deprived of their liberty in the normal family setting. A comparator for a young child is not a fully matured adult, or even a partly mature adolescent. While they were very young, therefore, MIG and MEG’s liberty was not restricted. It is because they can – and must – now be compared to children of their own age and relative maturity who are free from disability and who have access (whether they have recourse to that or not) to a range of freedoms which MIG and MEG cannot have resort to that MIG and MEG are deprived of liberty.”

And later

157.The ECHR enshrines the rights of the citizen, but its principal purpose and function is the protection of rights by engaging the State. The Convention is not an academic exercise. Key questions in every case where the Convention is invoked are: on the facts, is there an obligation for the State to become involved? Are the domestic laws and procedures apt to engage the State when necessary, and to protect the citizen’s rights? But these are questions to be asked and answered of the domestic law, for our purposes the common law.

158.It should be no surprise that the common law has provided the answer here. Although it is not necessary for the decision in this case, I also agree with the President that the question whether there is “confinement” should be approached in the careful way analysed by Lord Kerr in Cheshire West, at paragraphs 77 to 79. A three year-old child must be restrained for her own safety if walking near a busy road, or playing near a bonfire. This restraint would be unlawful if exercised over an adult. But it is lawful if exercised by any adult looking after the child. In my view, there is no need for an elaborate analysis of delegated parental responsibility to explain this. In such circumstances, restraint to keep the child safe lawfully could (and normally should) be exercised by any nearby adult. The true analysis is that explained by Lord Kerr. For all present purposes, “confinement” means not simply “confining” a young child to a playpen or by closing a door, but something more: an interruption or curtailment of the freedom of action normally to be ascribed to a child of that age and understanding. In most of the myriad instances in life where children are restrained in one way or another – by being compelled unwillingly to go to school, go to bed at a given time and so forth – there can be no question of their being “confined” so as to fulfil the first limb of the test in Storck.

159.Where there is confinement in the sense I have indicated, so that there may be a need for the State to engage to prevent possible abuse, the questions then become whether parental rights (and duties) can justify the confinement, and whether the State may have an obligation, to be discharged by local authorities and perhaps by the courts, to intervene. Excessively cautious or strict parenting, leading, let us say, to a fourteen year-old who is prevented from ever leaving the house save to be transported to and from school by a parent, might be a case of “confinement”. Other more extreme examples clearly would do so. Then the issue of whether the confinement is justified may arise. It will be evident that such cases are highly fact-specific and that the State will accord great flexibility to parents in caring for their children. That flexibility must reflect the facts, including the “discretion” of the child.

It rather seems to me that the nuts and bolts of Cheshire West are that one compares whether the restrictions on a child are part and parcel of family life or above and beyond that, not by comparing X child with one of similar needs and circumstances but with a child of a similar age. And that means that it would NOT be reasonable for a foster parent to lock the bedroom door of a 17 year old or restrain them if they tried to leave the home, and it doesn’t become reasonable just because X happens to lack capacity and needs those restrictions to keep them safe.

The Court of Appeal have clearly spent hours and hours on this, and my gut feeling is just my gut feeling, so it would be utterly wrong of me to try to argue that the Court of Appeal are wrong here.

Re D is the law now. Re D is.

Re D is.

Re D is

Re D is

(And if you aren’t reading Tom King and Mitch Gerard’s “Mister Miracle”, can I urge you to do that in the strongest possible terms? It is a mark of how great they currently are that the only work to compare to it this year is the same creative team’s run on Batman. )

The Court of Appeal stress that if a Local Authority are relying on parental consent to authorise a restrictive regime in foster care, they can’t simply rely on generic section 20 consent to authorise this.

149.Finally (paras 126-128), Keehan J rejected the local authority’s contention that the parents’ consent to D being accommodated pursuant to section 20 of the Children Act 1989 was a valid consent to D’s confinement at the residential unit. He disagreed with Mostyn J’s analysis in Re RK (Minor: Deprivation of Liberty) [2010] COPLR Con Vol 1047. Furthermore, he said (para 128):

“the “consent” is to the child being accommodated. It cannot be inferred that that consent means that those with parental responsibility have consented to whatever placement the local authority considers, from time to time, appropriate.”
150.I agree with Keehan J that the mere fact that a child is being accommodated by a local authority pursuant to section 20 does not, of itself, constitute a parental consent for Nielsen purposes to the particular confinement in question. In the first place it needs to be borne in mind that parental consent is not, in law, an essential pre-requisite to a local authority’s use of section 20: see Williams and another v Hackney London Borough Council [2017] EWCA Civ 26, [2017] 3 WLR 59. Moreover, even where there is such consent, there remains the powerful point made by Keehan J: to what precisely have the parents consented? That is a matter of fact to be decided in light of all the circumstances of the particular case. Here, as we have seen, Keehan J, found (see paragraph 9 above) that his parents had agreed to D’s being placed at Placement B just as he had earlier found (paragraph 107 above) that they had previously agreed to his being placed at Hospital B. I can see no basis for challenging either of those findings of fact.

(I’m not at all sure now of the status of Keehan J’s previous assertion that whilst parents can consent to restriction of liberty in foster care under s20, they can’t do so under ICOs because the threshold has been found to be crossed. That wasn’t in the case that was appealed, and it has always seemed to me a rather arbitrary distinction. I can’t see that the Court of Appeal look at this, but it is a long judgment, I may have missed it.)

Re D is.

Eleven plus and Spycatcher



This one is a little outside our normal remit, but it covers Education, and hence children, and it is a bit unusual. In fact, even though it is a question about the legal implications of leaking exam questions it would actually make a perfect legal exam question – which I’m sort of leaking in advance of anyone actually doing it.


Matalia v Warwickshire County Council 2017


Mr Matalia owned a website. I’m not sure what else he was doing on the website, but one of the things that he did in 2013 was post some information about the contents of the 11 plus exam being used in Warwickshire after it had taken place.

He was able to learn what the contents were by making some enquiries of children who had sat the exam (I believe his nephew was one of said children)

So what? What earthly use is knowing the contents of an exam AFTER the event? That’s like someone running up to you with a hot tip for the Grand National and telling you that Red Rum won it three times in the Seventies. It’s not inaccurate, but it isn’t useful.

Well, except that not everyone who sits the 11 plus exam in Warwickshire does so at the same time  (which I personally think is something of a flaw in the security of their system, which Mr Matalia has exposed). There are three separate examination sitting dates, all using the same paper. So if you are taking the test on the third of those sitting dates and you know what is in the test because someone who was in sitting date one tells you, you have an advantage.

(Assuming there’s a grade curve, rather than a hard pass mark, it is utterly disdvantageous to people who sat the exam on the first date to help out people sitting later on, and actually if it were me, I’d tell them the questions were largely about the role of crocodiles in Egyptian mythology so they’d crash and burn, but that’s by the by)


Here’s what went onto Mr Matalia’s website



“A. Comprehension regarding Lemurs in Madagascar. Around 2 pages of text and perhaps 20 questions. Easy enough to finish.

A. Longer maths. 4 long questions with subsections (perhaps 15 minutes).

i) A question relating to luggage dimensions and time differences: London and Hong Kong.

ii) Cinema tickets, time calculations and prices.

iii) Prices of items in a sale, including original prices. E.g price was £4.85 after a 75% discount. What was the original price?

iv) Swimming suggestions – swimming lengths in a certain time. Required conversions and ratio/proportion knowledge.

Some questions were difficult and many may not complete the questions.

B. Synonyms (words included thrifty, frugal, insolent). Enough time to complete the questions.”


  • The relevant test included a comprehension question on a passage concerning lemurs in Madagascar with a total of 23 questions. The “Matching Words” section required candidates to give “thrifty” as a synonym for “frugal”. The judge found that the section on the website headed “Longer maths” also “contained truth”. He referred to an email dated 10 September 2013 in which the University told the Council that there were “4 maths Qs (6 marks) where day 2 candidates may be at an advantage – although the exact Qs are not revealed”.



It doesn’t sound as though Mr Matalia’s nephew was some sort of super-spy, taking detailed notes of the exam questions as part of a well designed scheme, but rather that those were just the bits he happened to remember when asked about them.  I mean, knowing that the Comprehension question was based on an article about lemurs doesn’t help you in the slightest. It isn’t going to be beneficial to cram the Wikipedia entry on lemurs to give you an edge. Also ‘cinema tickets, time calculations and prices’  is, when you boil it down ‘some questions involving maths’ – which I think most children sitting an Eleven Plus exam would probably anticipate.

But a visitor to the site who would be sitting the exam on one of the two later sitting dates would gain a slight edge (and on at least the thrifty/frugal question would pick up a free mark)

The Council asked Mr Matalia to take the exam spoilers down.  He refused and the Council applied for an injunction. They asked him to take the spoilers down before the trial. He refused.


Before the trial, Mr Matalia refused to give any undertakings, saying in an email to the Council that, quite apart from expecting to win, “it is financially advantageous for me to go to trial and the publicity and media details will be invaluable for my sites.” He also stated that he understood that “there is a surprise waiting for [the Council] for this year’s 11+ exams. I won’t spoil the fun….I did not ask for help, have no involvement, direct or indirect and no contact numbers. I understand the content on my site last year will be insignificant in comparison.”


Without trying to be unkind, and avoiding any feelings about whether eleven plus exams are a good thing, bad thing, indifferent thing, it does feel from the outside something of an unusual thing for a grown man to do, to post spoilers about an exam to be undertaken by eleven year olds.  I really don’t know what else was going on his website, or how that content fitted into the general scope of the site…  (It would make more sense to me if he were publishing the full questions and answers and charging for access. I don’t really understand the motivation here. It doesn’t seem like a political protest against grammar schools or trying to subvert the system, nor does it actually seem like a monetarised plan. I guess it was simply for the lulz)



Anyway, the Council got their injunction, banning Mr Matalia from posting on his website any information about Eleven Plus examinations in 2013, 2014 or 2015.  This was Mr Matalia’s appeal.


The case was decided on the principle of ‘breach of confidence’  – this has three limbs



  • three limbs of the test to establish a breach of confidence set out by Megarry J in Coco v A.N. Clark (Engineers) Ltd [1969] RPC 41 was satisfied. It is Mr Matalia’s case that none was satisfied.
  • The test formulated by Megarry J at p.47 of the report, and subsequently approved and applied many times, is:


“In my judgment, three elements are normally required, if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene, M.R. in the Saltman case on page 215, must “have the necessary quality of confidence about it”. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”


Mr Matalia argued at his appeal (and I think it is a decent lawyer argument, though I suspect any normal human being would reject it immediately) – how can the information in an exam paper handed out to 1,600 children have a ‘quality of confidence’ about it? And when the paper was handed out to his nephew, how was there an obligation of confidence imported to him? Of course children talk about exams after they’ve taken them. And these days, they probably do so on social media, thus publishing their conversations.  With that in mind, how can the exam papers have that ‘necessary quality of confidence’?

He doesn’t argue, though it seems blindingly obvious to me – why don’t Warwickshire do their 11 plus exams all on the same day, then they don’t have to worry about this?



  • Ground 2 is as follows:


“2. The judge erred in concluding that the Appellant had committed a breach of confidence, given that

2.1 the relevant information which the Appellant had published on his website (“the Information”) was (as was accepted by the Judge, in paragraph 35 of his judgment (“the judgment”)) communicated to him by one or more pupils who themselves were under no duty of confidence in relation to the Information;

2.2 the Information was, in the context (see paragraph 34 of the Judgment, and paragraph 2.4 below), trivial;

2.3 the Information concerned a test about which the deviser of the test (Durham University) said to the Respondent (only 3 days after the 11+ examination from which the Information was believed by the Appellant to be drawn)

2.3.1 “the testing process as a whole would not seem to have been compromised” and

2.3.2 “If there are issues [i.e there was a possibility of late sitters having any “particular advantage” where the Respondent “had concerns”, the Respondent had] the option of excluding these questions from the results”;

2.4 the Respondent had written to the Appellant in April 2011 that

“it would be very very difficult for a child to remember any of the questions in enough detail to pass on to children who are yet to take the test in order for that child to be at any significant advantage” (see paragraph 34 of the judgment);

2.5 websites other than that of the Appellant had revealed and continued to reveal similar information about the content of the 11+ examinations set by the Respondent;

2.6 there was evidence before the Court that persons who acted (for financial reward) as tutors for the 11+ examinations set by the Respondent appeared surreptitiously to use information comparable to the Information in preparing their tutees to take the 11+ examinations administered by the Respondent (see paragraph 6 of the Appellant’s witness statement of 8 December 2014); and

2.7 there was evidence before the Court that children who had taken the 11+ examinations were giving to their friends and relatives who were about to sit the same examination at a later date information which was at least comparable to the Information (see also paragraph 6 of the Appellant’s witness statement of 8 December 2014).”


  • Apart from sub-paragraph 2.1 of Ground 2, which clearly relates to the second limb of Megarry J’s test, the other sub-paragraphs appear to relate both to whether the information disclosed by Mr Matalia on his website had the necessary quality of confidentiality about it (limb 1) and to whether its disclosure was to the detriment of the Council (limb 3). As to the other part of limb 3, that the disclosure was unauthorised, it is clear that neither the Council nor any other person authorised the disclosure.


Ground 2.1: chain of confidentiality


  • Mr Matalia submits that because he received the information from one or more pupils who were themselves under no duty of confidence in relation to it, he was not himself under any obligation of confidence and was free to publish it as he saw fit. He submits that the candidates were free to disclose the contents of the test and could therefore transmit the contents to others without any duty of confidentiality being imposed on the recipients.
  • Although Lewison LJ subsequently clarified that he gave permission to appeal on the entirety of Ground 2, he focussed on this issue in his reasons:


“1. Although the evidence is not entirely clear, it seems to be the case that the pupils taking the test were not told that it was confidential or that they should not discuss the contents of the test with others.

2. If that factual premise is correct then it is arguable that the judge was wrong to find that all three limbs of the test in Coco v Clark were satisfied.”


  • Despite this, Mr Bragiel’s skeleton argument made very little of Ground 2.1. He made even less of it in his oral submissions and, in answer to a question from Lindblom LJ, accepted that the issue was whether the information was confidential in nature and whether Mr Matalia realised or should have realised that it was confidential. However, in a note sent to the court after the hearing, Mr Bragiel stated that he had not abandoned reliance on the fact that the children taking the test were not told that the test was confidential or that they should not discuss it with others. He said this was the fundamental factor relied on and was relevant to each of the three limbs of Megarry L’s test.


This is the nub of it – if the nephew wasn’t told, or it wasn’t written on the exam papers ‘this is confidential’ or ‘you must not talk to other people about what is in this test’ or words to that effect, was the test in Coco v Clark satisfied?


This is, however, where we get into law exam territory – literally.  The reference that the Court of Appeal give here is in relation to the Spycatcher trial (a case where a former employee of UK Security Services wrote a book about his experiences, published it in Australia and it was serialised by the Sunday Times with excerpts appearing in other newspapers) and the SPECIFIC reference is

. But it is well settled that a duty of confidence may arise in equity independently of such cases; and I have expressed the circumstances in which the duty arises in broad terms, not merely to embrace those cases where a third party receives information from a person who is under a duty of confidence in respect of it, knowing that it has been disclosed by that person to him in breach of his duty of confidence, but also to include certain situations, beloved of law teachers – where an obviously confidential document is wafted by an electric fan out of a window into a crowded street, or where an obviously confidential document, such as a private diary, is dropped in a public place, and is then picked up by a passer-by.”


Come on, how meta is that? A law case about exam papers is decided by reference to a law case that was giving a hypothetical scenario beloved of law teachers.


The Court of Appeal liked this so much that they went back to it


It seems highly improbable that a 10 or 11-year old child would be prohibited from discussing the test with their parents, but that gets Mr Matalia nowhere. First, it does not follow that candidates owe no duty of confidentiality. If the Council became aware that a candidate was proposing to publish questions on social media, I do not see why it could not take steps to restrain it, assuming that the candidate knew that there were to be further sittings of the test. If, by virtue of their age, the candidates were not susceptible to injunctive relief, communication by them would be analogous to the example given by Lord Goff in Attorney General v Guardian Newspapers Ltd (No 2) of the confidential document being wafted into the street by an electric fan and picked up by a passer-by.


Secondly, and in any event, it does not follow that because a child can tell his or her parents about questions in the test they have taken, the parents are free to publish that information, knowing that other candidates are yet to take the test. The communication is made by the child in very particular circumstances, as part of the child-parent relationship. Given the confidential character of the information, as will or should be apparent to the parents, it would in my judgment be entirely consistent with principle to impose the duty of confidentiality on the parents, and quite contrary to principle to treat the parents as free to publish the information as they saw fit.


The appeal was refused and the onward secrecy of Warwickshire’s Eleven Plus exams is secured. Hooray. (or Boo, depending on how you feel politically about grammar schools)


(Dragging us back to family law, I’ve written before about how just like Rorschach tests, many of the psychometric tests applied by psychologists in assessment of parents aren’t available online – to stop people deciding in advance how to answer them, or being coached. So I guess this would apply to an enterprising parent who photographed the test paper and tried to publish it. Don’t do that, obviously. That would be a breach of confidence, and you would be made to take it down.)


And just to make us all feel super thick, here’s an O Level Geometry paper from 1957.


Belinda blinked. How on earth was she supposed to answer these questions?


Here come the Hofstetter

Extraordinary, juice like a strawberry

The Court of Appeal in Re S-F (A child) 2017

Manage to go through the gears from – it might be helpful to see the Agency Decision Maker’s Hofstetter decision record as to how the decision as to adoption was reached to ‘it is good practice for the LA to provide that’ to ‘it is bad practice if they don’t provide it’ in the space of a single paragraph.

So from here on out, it is bad practice for a Local Authority not to file and serve the Hofstetter record when they lodge a placement order application.

Also, I’ve got this gold ring with writing on it that I need you to get rid of if you have a moment, the one that says “One ring to rule them all” – so if you could just dispose of that for me, that’d be just peachy. Thanks!

One does not simply walk into Mordor Family Proceedings Court…

(The Hofstetter document case Hofstetter and Another v London Borough of Barnet 2009

132.I appreciate that the Agency Decision Makers are very busy and the potential advantages both in saving time and resources, and in avoiding arguments based on differences of expression, that flow from them adopting the reasons for a recommendation. But in my view before that course is taken the Agency Decision Maker must consider with care, in the light if his or her role and the wider information he or she has, which of the reasons underlying the recommendations he or she is adopting and why this is the case.

133.Perhaps particularly when, as here, the recommendation for the qualifying determination and the decision in the case are the same, I suggest that, with a view to ensuring that the Agency Decision Masker approaches the making of the decision in the case, and thus a reconsideration of the case, with an open mind, and as the decision maker, it would be a good discipline and appropriate for him or her to:

i) list the material taken into account,

ii) identify the key arguments on both sides,

iii) ask whether he or she agrees with the process and approach of each of the relevant panels and is satisfied as to its fairness, and that both panels have properly addressed the arguments,

iv) consider whether any information he or she has that was not before a relevant panel has an impact on its reasons or recommendation,

v) identify the reasons given for the relevant recommendations that he or she does, or does not, wish to adopt, and

vi) state (a) the adopted reasons by cross reference, repetition or otherwise and (b) any further reasons for his or her decision, when informing the prospective adopters of that decision.

This is a fact and issue sensitive exercise. But in my view it, or a similar approach, should assist the Agency Decision Maker to identify the issues, the factors that have to be weighed and importantly his or her reasons (rather than those of others) for the decision that he or she is charged with making as the Agency Decision Maker )

Here is what the Court of Appeal say (in Re S-F) about it now being bad practice if the ADM minutes of the decision making process are not filed and served. Note the line about the record being ‘susceptible of cross-examination’

11. The permanence report and the agency decision maker’s record of decision contain the required analysis and reasoning which is necessary to support an application for a placement order. They are disclosable documents that should be scrutinised by the children’s guardian and are susceptible of cross examination. It is good practice to file them with the court in support of a placement order application. Given their importance, I would go further and say that it is poor practice not to file them with the court because this is the documentation that records in original form the pros and cons of each of the realistic care options and the social work reasoning behind the local authority’s decision to apply for a placement order.

Ryder LJ also reminded practitioners about Re B-S (in case anyone has forgotten it) but does so with punchy language

The proportionality of interference in family life that an adoption represents must be justified by evidence not assumptions that read as stereotypical slogans. A conclusion that adoption is better for a child than long term fostering may well be correct but an assumption as to that conclusion is not evidence even if described by the legend as something that concerns identity, permanence, security and stability.

And stresses that the evidence and analysis has to be centred around the particular child, not merely relying on general thinking for children of similar ages and characteristics. What is right for THIS child, and why is that said to be right?

In order to have weight, the proposition that adoption is in the best interests of the child concerned throughout his life and is preferable to long term fostering should be supported by a social work opinion derived from a welfare analysis relating to the child. If appropriate, the conclusions of empirically validated research material can be relied upon in support of the welfare analysis, for example: research into the feasibility and success of different types of long term placements by reference to the age, background, social or medical characteristics. As this court has repeatedly remarked, the citation of other cases to identify the benefits of adoption as against long term fostering is no substitute for evidence and advice to the court on the facts of the particular case.

The Court of Appeal also criticised the LA for stopping their family finding once they were aware that an appeal was pending – the appeal took ages to be heard, and therefore the Court didn’t have up to date evidence about the family finding process. (Candidly, I’d have done the same as this LA – you’re not going to find any matches for a child whilst there’s an appeal pending, and you can’t do anything with a potential match even if you find one. But don’t do that in the future – keep up the fruitless and time-consuming search for a match, just so you can tell the Court of Appeal that no prospective adopters want to be matched with a child whilst they know there is an appeal pending and that nobody knows how long the appeal process will take)

5. It is a matter of regret that in the six months that has intervened between the order complained of and the appeal hearing the local authority did not see fit to undertake concurrent planning in order that they might know about the success or likelihood of success of a search for an adoptive placement. The appeal after all is being heard at a time when the local authority would have abandoned its search for adoptive carers, the child having been with his foster carer for six months. The irony of that circumstance appeared to be lost on the local authority until it was pointed out. It is no good saying that appeals should not take so long. I am sure everyone would agree but local authorities have statutory care planning and review obligations and that includes consideration of the adverse impact on a child of delay. If it is the case that a welfare analysis necessitated a time limited search for adoption, the same analysis should inform the local authority’s planning process over the same time period

Das reBoot – Court of Appeal find reverse gear (once again)


A major theme in family case law over the last 2-3 years has been misuse of section 20 – voluntary accommodation, with all sorts of guidance being provided, culminating in the President of the Family Division giving a decision in Re N 2015 which just invented huge new chunks of legal obligations on Local Authorities and threatening damages if they didn’t obey.


That in turn, quite coincidentally, led to the biggest increases in number of care proceedings issued that we have seen since the Baby P crisis hit. It is a complete coincidence, of course. I mean, over that same period of time, we haven’t actually seen the number of children in foster care go up at all, but we have seen the number of care proceedings go up by 35%, but the two things are utterly unrelated.


As I’ve said before, I do think that there was a genuine problem with section 20 misuse and it needed to be addressed – I just think we swapped one problem for three others – an increased demand which the system utterly couldn’t manage, an increased layer of complexity and time in dealing with claims being added into care proceedings which the system utterly couldn’t manage, and an insoluble problem about how to deal with the cost issues caused by the statutory charge which, you’ve guessed it…

(And also, as I’ve said before, I’d be entirely up for Parliament to review s20 and put in some stronger safeguards for parents – I think a very short limit on the initial s20 and it to be reviewed at a meeting to which parents have free legal advice would be a start)

Anyway, the Court of Appeal today have given judgment on an appeal from one of the early s20 damages cases – this was one where the police removed children after the father hit one of them with a belt, the police arrested the parents and gave them bail conditions not to live with the children, and the parents objected to s20.  The parents later sued the LA for breach of their human rights in continuing the s20 without their express consent.


I wrote about the original case at the time, and if WordPress ever stops behaving like a four year old hopped up on Tartrazine, I’ll put a link in.


London Borough of Hackney v Williams & Anor [2017] EWCA Civ 26 (26 January 2017)


(you can skip right to the end if you just want the reboot paragraph, I’ve put it in super large font)


So this is an appeal from an award for £10,000 damages against Hackney, where the parents had been arrested and had bail conditions not to be with the children. The LA asked for s20, the parents refused to sign and the LA relied upon the statute that the parents were prevented (for whatever reason) from providing accommodation and thus s20 (1) (c)  was met, and that the parents objection had to be looked at in the context of s20(7) which states


(7) A local authority may not provide accommodation under this section for any child if any person who—


(a) has parental responsibility for him; and


(b) is willing and able to—


(i) provide accommodation for him; or


(ii) arrange for accommodation to be provided for him, objects.



The parents were objecting, but weren’t providing any alternative accommodation, and weren’t in fact able to provide their own accommodation (because they would have then been in breach of bail conditions, and arrested. So the LA view was that it wasn’t a legal objection because they weren’t able to meet (b) (i) or (ii)



This all happened, by the way, in 2007.


The High Court looked at it in  September 2015 , and decided that the bail conditions weren’t sufficient to defeat the objection under s20(7) and awarded the parents £10,000 compensation each, plus costs. The High Court were clear that the allegations that led to the arrest were largely true (the father had hit the child with a belt) but nonetheless the parents human rights had been breached by the LA s20ing the children without consent, rather than seeking consent or a court order.


This, 18 months later, reaches the Court of Appeal.



The Court of Appeal look at Sir Mark Hedley’s decision in Coventry City Council v C [2013] EWHC 2190 (Fam) ,  and the Court of Appeal decisions giving judicial guidance on s20 cases  Re B (Looked after child) [2013] EWCA Civ 964 (sub nom Redcar and Cleveland Borough Council v Others); Re W (Children) [2014] EWCA Civ 1065; and Re N (Adoption: Jurisdiction) [2015] EWCA 1112.


The Court of Appeal say that those cases didn’t have to specifically determine a s20 issue, so where they have made comments, they are obiter and not binding. Specifically, what the President says in Re N is not binding on the Court of Appeal in a case where argument has been specifically heard on the s20 and where s20 is a ratio issue.



59.In relation to item (d), after setting out the terms of s. 20(8), Sir James stated (at [169]):


‘This means what it says. A local authority which fails to permit a parent to remove a child in circumstances within section 20(8) acts unlawfully, exposes itself to proceedings at the suit of the parent and may even be guilty of a criminal offence. A parent in that position could bring a claim against the local authority for judicial review or, indeed, seek an immediate writ of habeas corpus against the local authority. I should add that I am exceedingly sceptical as to whether a parent can lawfully contract out of section 20(8) in advance, as by agreeing with the local authority to give a specified period of notice before exercising their section 20(8) right.’

60.In conclusion, Sir James set out further requirements of good practice, in addition to those identified by Hedley J before stating [171]:


‘The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop. Judges will and must be alert to the problem and pro-active in putting an end to it. From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified, can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages.’


72.Finally, in Re N, the judgment of Sir James Munby P does repeat his conclusion that parental consent is required by the statute; this can most conveniently be seen from two sentences (from [163]):

 A Local Authority cannot use its powers under section 20 if a parent “objects”: see section 20(7). So where, as here, the child’s parent is known and in contact with the local authority, the local authority requires the consent of the parent.”

73.In considering this passage in the President’s extensive judgment in Re N, it is necessary to be clear that any issues relating to s. 20 were very much at the periphery of that case, the focus of which was the jurisdiction of the English Family Court to make orders leading to adoption with respect to foreign nationals. It seems plain that the section of the judgment as to the working out of arrangements for s. 20 accommodation arose from concern, evidenced by a raft of recent first instance decisions, as to social work practice in general. No issue in the case of Re N turned on the interpretation of s. 20, or, indeed, on any matter with respect to s. 20. It is apparent that Sir James was using the opportunity provided by the fact that the children in Re N had been accommodated for eight months before the local authority issued care proceedings as a hook upon which to hang some, no doubt timely, firmly worded and important good practice guidance. Despite the respect that this court undoubtedly has for the opinion of a judge of such authority on these matters, the short judicial statement (in [163]) following a hearing at which the interpretation of s. 20 was not in issue cannot be binding upon this court where the focus is directly upon s. 20 and where there has been full argument.




Therefore, s20(7) does apply where the parent is not able to provide accommodation themselves, or is unable to provide alternative accommodation. In those circumstances, a parent’s objection does not defeat s20 – they need to be able to provide accommodation themselves or from third parties in order to satisfactorily object.

 That does NOT mean, and should not be interpreted to mean that in a scenario where the parent says “I object to s20, the child can come home with me’ that the LA can hide behind s20(7) and say that the home offered was unsuitable or dangerous, or they didn’t think it was a good idea. S20(7) goes only as far as the parent not being ABLE to have the child live with them (think bail conditions, homelessness, incarceration or detention in mental health hospital, that sort of thing) and where they aren’t able to provide any other accommodation.  It doesn’t cover “the child could live with my brother Mike” and the Social worker going “hell no”



74.I recognise that, in the context of the cases that he was then considering, it may well have been appropriate for Sir James to equate the obligation on a local authority not to use its powers under section 20 if a parent ‘objects’ as meaning, effectively, that when the parent is known and in contact with the authority, consent is required but, in my judgment, it would be wrong to elevate the requirement of consent into a rule of law that operates in all circumstances. In this case, the parents had the benefit of solicitors experienced in both family and criminal law. Their ability to apply to remove the prohibition on contact with the children was well known and emphasised by the solicitors in correspondence. The local authority was not responsible for the bail condition and had no obligation to take proactive steps to have it removed. If the solicitors had wanted the local authority to express a view, an appropriate official could have been requested to do so by the court or been the subject of a witness summons to attend.



75.On any showing, it was not for the local authority to aid and abet the flouting of the bail condition and it is not sufficient to argue that the local authority should have sought to persuade the police to modify the condition. The only inference to be drawn from the fact that the condition remained in place was that the parents (no doubt on advice) were prepared to negotiate with the police rather than risk a conflict in court. In those circumstances, for the period that the bail condition remained in place, they were not in a position to provide accommodation for them within s. 20(7)(b)(ii) of the 1989 Act and were thus not in a position legally to object whether or not they formally consented.



76.Thus, the continued existence of the bail condition had the twin consequence that Mr and Mrs Williams, firstly, were ‘prevented … for whatever reason’ from providing suitable accommodation and care for their children (s 20(1) of the 1989 Act) and, secondly, were not ‘able’ to provide accommodation for them in order to trigger their statutory right to object (s 20(7) ibid



This is the really important bit, with wider implications than the bail conditions/parent in prison objecting to s20 though.




77.Before passing from the issue of s. 20 of the 1989 Act and consideration of the guidance given by Sir James Munby P, Hedley J and others in the Family Division cases to which I have referred, I wish to stress that nothing that is said in this judgment is intended to, or should be read as, altering the content and effect of that guidance in family cases. The focus of the court in the present appeal is on the bottom-line legal requirements that are established by s 20 and within which a local authority must act. The guidance given in the family court, which has built upon that bottom-line in the period since the Williams’ children were removed, identifies clear, cooperative and sensible ways in which a voluntary arrangement can be made between a parent and a local authority when a child may need to be accommodated; it is, in short, good practice guidance and a description of the process that the family court expects to be followed. For reasons of good administration, the practice guidance should continue to be followed, notwithstanding the limits of the underlying legal requirements in s 20 that I have identified but a failure to follow it does not, of itself, give rise to an actionable wrong, or found a claim for judicial review.


I would expect to see that paragraph quoted by Local Authorities in response to any suggestion of HRA claims for s20 damages in the future.  There may be circumstances where this sort of breach does give rise to action, and we’ll have to wait to see that litigated, but it is going to need something more than just failure to comply with the guidance.   The Court of Appeal were also scathing about the proportionality of litigating this particular HRA claim – the damages were out of proportion to the costs and the Court also made it very clear that they considered the quantum of damages to be significantly more than they would have contemplated.


This brings me to another trend in family law – we had the raised test for interim care orders, which caused all sorts of mayhem and was eventually rolled back by the Court of Appeal saying ‘oh, nobody meant what you all thought’, then the raised test for adoption, which caused all sorts of mayhem and was eventually rolled back by the Court of Appeal saying ‘oh, nobody meant what you all thought’ and now the raised tests for s20, which caused all sorts of mayhem and has now been rolled back by the Court of Appeal saying ‘oh, they DID mean it, but they weren’t actually able to apply the teeth to it that they thought they were applying’


Perhaps when far-reaching judicial speeches that go further than the issue being litigated next arises, the Courts could hear full argument about the implications of what they are contemplating? Or, heaven forbid, just only tell us what the law means where it is the issue in the case and the law is unclear, rather than reworking the plain words of the Statute into what you happen to wish they said instead?