About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Friday, 29 November 2013

Re B: Threshold & its Relevance to Welfare Findings

In Re B at paras 186-190 Lady Hale had this to say about threshold and the relevance of the threshold findings to the welfare decision:

186. As to the suggestion made by Ward LJ (at para 54), that article 8 of the European Convention on Human Rights does "inform" the meaning of "significant", I agree that it is only the court's order, and not its finding that the threshold has been crossed, which constitutes an interference with the article 8 right. However, the reason why the threshold is crossed forms part of the court's reasons for making the order, and these must be "relevant and sufficient". It is not sufficient that the child would be better off in another family. That is the reason for the existence of the threshold (which was substituted for the more precise criteria laid down in the Children and Young Persons Act 1969 and the Child Care Act 1980). Furthermore, there is a relationship between this debate and the approach taken to proportionality, discussed in paragraph 197 below, which I believe to be common ground between us. If permanent removal is proportionate if it is the only way of avoiding the identified risk of harm, then it is also important that the threshold of harm is not set at too low a level, for otherwise the reasons for removal will not be sufficient: say, for example, that it is highly likely that a child will turn into an unhealthy couch potato like her parents, and only permanent removal could reliably prevent this, it would nevertheless not be a justifiable interference with family life to permit this.

187. Added to the difficult question of identifying significant harm is the question of identifying the degree of likelihood that such harm will be suffered in the future which is necessary to take the case over the threshold. It was held, albeit strictly obiter, in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 that "likely" does not mean "probable" or "more likely than not". It means, in Lord Nicholls' well-known words, "a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case" (at 585F). That standard has been adopted or approved in numerous later cases, including recently in this court in In re J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9; [2013] 2 WLR 649. It is in this respect, and this respect alone, that Lord Nicholls observed that the threshold is "comparatively low".

188. The reason for adopting a comparatively low threshold of likelihood is clear: some harm is so catastrophic that even a relatively small degree of likelihood should be sufficient to justify the state in intervening to protect the child before it happens, for example from death or serious injury or sexual abuse. But it is clear that Lord Nicholls did not contemplate that a relatively small degree of likelihood would be sufficient in all cases. The corollary of "the more serious the harm, the less likely it has to be" is that "the less serious the harm, the more likely it has to be".

189. Of course, another reason for adopting a test of "real possibility", rather than "more likely than not", is that it is extremely difficult to predict the future and to do so with the sort of accuracy which would enable a court to say that it was more likely than not that a parent would harm a child in the future. Once again, this is a particular problem with emotional or psychological harm, which may take many years to manifest itself. The Act does not set limits upon when the harm may be likely to occur and clearly the court is entitled to look to the medium and longer term as well as to the child's immediate future.

190. However, the longer term the prospect of harm, the greater the degree of uncertainty about whether it will actually happen. The child's resilience or resistance, and the many protective influences at work in the community, whether from the wider family, their friends, their neighbourhoods, the health and social services and, perhaps above all, their schools, mean that it may never happen. The degree of likelihood must be such as to justify compulsory intervention now, for there is always the possibility of compulsory intervention later, should the "real possibility" solidify.

Thursday, 28 November 2013

Family Law Blog Review

Suesspicious Minds

How the author of this blog did not receive the award for family law commentary in 2013 I do not know. It is the blog to read about public law proceedings. I don't quite know how he manages it but it is on occasions laugh out loud funny.

Pink Tape

My co-editor Lucy Reed's blog has now been going for some time but remains interesting and entertaining and all the better for being grounded on her practice as a barrister

Family Lore

John Bolch - the uncrowned king of the family law internet - without whom I would not be blogging - always up to the minute - covering public & private law children & divorce & money, domestic violence. Your one stop shop.

Marilyn Stowe Blog: Where Family Law Meets Family Life

Now with added John Bolch! Marilyn tends to focus on divorce and money but occasionally comments on children matters. Always worth reading.

Researching Reform

Natasha Phillips has been writing her blog since 2008 and is committed to generate debate and reform to improve the family justice system. She is also busy generating the Encyclopaedia of Family Law as a free online resource & has managed to persuade a number of great people to contribute (including me!). I will let you know when it is up & running.

Bloody Relations

My own blog aimed at family members - just been revived - mainly good for comedy at the moment.

Family Blawg
Good for news stories including from the US. A number of firms of solicitors provide content.

Family Lawyers' blogs with useful content - occasional comments on cases & news stories

Pannone Family Law Blog

Kingsley Napley Family Law Blog


Emma's Family Law Blog

Garden Court Chambers Family Law Blog

Porter Dodson Fertility & Parenting Law

Family Law Matters Scotland

If you know of or write a good one I have missed please add a comment.

Wednesday, 27 November 2013

Working Together

I was reminded by Elizabeth Isaacs QC in her talk to the ALC Conference about the revised Working Together guidance issued earlier in the year and updated in August 2013. The guidance replaces the previous guidance of the same name and the Framework for the Assessment of Children in Need & their Families.

There is a good summary of the guidance on the NSPCC website
from which page you can download the new guidance and there are links to the old documents.

A key change for local authorities is that they are no longer required to carry out separate initial and core assessments but can determine their own assessment methodology for which they should put in place a local protocol.

Local authorities must follow the new statutory guidance unless exceptional reasons apply and the guidance should also be applied by Local Safeguarding Children's Boards & senior managers in organisations who commission & provide services for children & families.

Gone are the five key outcomes for children. Instead local authorities must take action to enable all children to have the best outcomes but this is not defined.

The need for local authorities providing services to children to comply with the Equality Act 2010 is emphasised within the new guidance.

Social work practitioners are enjoined to ensure that they:

* focus on the needs and views of the child;
* review & revise their opinions & decisions in light of any new evidence;
* engage in critical reflection through supervision;
* record their decisions;
* complete assessments within 45 days

Friday, 22 November 2013

The Use of ISWs in care proceedings

I am pleased to be attending the ALC Annual Conference in Manchester and am listening to Dr Julia Brophy speaking about her paper "Neither Fear Nor Favour: The views and practices of senior judges regarding the use and value of independent social work expertise in care proceedings".

The full report can be read here

Key findings included:

* Judges did not consider that they frequently ordered ISW reports

* the main reason for using ISWs was that the local authority did not have the skills / expertise in-house or lacked resources to prepare a report in time

* the need for an independent view because of actual or perceived bias by the LA was rarely put forward and rarely determinative although it was more commonly a reason among many

* LAs usually actively participated / welcomed the instruction of an ISW

* Judges had and were prepared to turn down applications (even joint applications) unless the need to instruct the ISW could be demonstrated

* More than half of reports were outstanding / excellent and generally good with only 3 reports being less than satisfactory

* Most reports were delivered on time

* Most Judges considered the core assessment generated by the ICS as not fit for purpose (lacking analysis, repetitious, fonts too small, too many boxes, difficult to locate information etc etc.)

* Judges raised concerns about the lack of experience and training of LA social workers in the legal arena

* Fewer than half of LAs inspected completed core assessments in 35 days

* Only 5% of assessments were consistently good (the rest were variable, improving or unacceptably poor)

* Judges do not anticipate changing their practices in respect of authorising ISWs because of the policy / legal developments such as the 26 week rule - ISWs are rarely used and need must be demonstrated but if there is a need the reports will be directed

Wednesday, 20 November 2013

Brussels II Revised In a Nutshell

BRUSSELS II REVISED (BIIR / BIIA) EU Regulation 2201/2003

* Applies to European signatories & takes precedence over Hague

* Applies to children up to 16

* Jurisdiction retained by outgoing court for 3 months after move

* Habitual residence or presence in jurisdiction founds jurisdiction (if habitual residence cannot be established)

* Mechanism for transfer in & out – Article 15

* Provisional measures in urgent situations recognised – Art 20

* Many more recognition & enforcement provisions – certificated orders post 1.3.05 are directly enforceable

* Art 23 - grounds for non-recognition

* Certification process for orders

* Art 56 – procedure to follow re placement abroad – prior consultation required – consent to placement not required*

* No reference to possibility of charges - Central Authority etc bears costs

Signatories: Austria, Belgium, Bulgaria, Cyprus (South), Czech Republic, Estonia, Finland, France, Germany, Hungary, Republic of Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, United Kingdom

Article 23

Grounds of non-recognition for judgments relating to parental responsibility

A judgment relating to parental responsibility shall not be recognised:
(a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child;
(b) if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought;
(c) where it was given in default of appearance if the person in default was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defence unless it is determined that such person has accepted the judgment unequivocally;
(d) on the request of any person claiming that the judgment infringes his or her parental responsibility, if it was given without such person having been given an opportunity to be heard;
(e) if it is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which recognition is sought;
(f) if it is irreconcilable with a later judgment relating to parental responsibility given in another Member State or in the non-Member State of the habitual residence of the child provided that the later judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.
(g) if the procedure laid down in Article 56 has not been complied with.

Article 24

Prohibition of review of jurisdiction of the court of origin

The jurisdiction of the court of the Member State of origin may not be reviewed. The test of public policy referred to in Articles 22(a) and 23(a) may not be applied to the rules relating to jurisdiction set out in Articles 3 to 14.

Article 25

Differences in applicable law

The recognition of a judgment may not be refused because the law of the Member State in which such recognition is sought would not allow divorce, legal separation or marriage annulment on the same facts.

Article 26

Non-review as to substance

Under no circumstances may a judgment be reviewed as to its substance.

Article 56

Placement of a child in another Member State

1. Where a court having jurisdiction under Articles 8 to 15 contemplates the placement of a child in institutional care or with a foster family and where such placement is to take place in another Member State, it shall first consult the central authority or other authority having jurisdiction in the latter State where public authority intervention in that Member State is required for domestic cases of child placement.
2. The judgment on placement referred to in paragraph 1 may be made in the requesting State only if the competent authority of the requested State has consented to the placement.
3. The procedures for consultation or consent referred to in paragraphs 1 and 2 shall be governed by the national law of the requested State.
4. Where the authority having jurisdiction under Articles 8 to 15 decides to place the child in a foster family, and where such placement is to take place in another Member State and where no public authority intervention is required in the latter Member State for domestic cases of child placement, it shall so inform the central authority or other authority having jurisdiction in the latter State.

Tuesday, 19 November 2013

Local Authority Duties to Young People who are Failed Asylum Seekers

Generally the majority of separated young people once 18 will be entitled to leaving care support up to at least the age of 21 if they have been accommodated by the local authority under section 20 of the children act 1989 for at least 13 weeks subsequent to the 14th birthday.

R(SO) v Barking and Dagenham 2010 EWCA Civ 1101

Paragraph 6 of Schedule 3 states that young people who are considered to be' failed asylum-seekers' are entitled to continue to receive leaving care support from a local authority up to the point where they' fail to comply with the removal directions' set by the UK Border Agency (a removal direction details the time and place of removal from the UK). In other words being a failed asylum seeker is not sufficient reason to withdraw or withhold social services support. They must, in addition, have failed to comply with removable directions issued in respect of them. Many young people will fit into another category in schedule 3:' persons unlawfully in the UK'. If a young person is found to be a person' unlawfully in the UK', then they can have their leaving care and support withdrawn, providing that to do so would not breach their rights under the European Convention on Human Rights or under the European Community Treaties. The UK Border Agency currently reimburses local authority for the cost of accommodating separated children seeking asylum, and continues to do so for those children when they turn 18 if their claim is still pending. Case law has made it clear that a young person should not be moved by the local authority onto support under Section 4 of the UK Border Agency, but support should instead be provided by the local authority. However, 'appeal rights exhausted' cases are eligible for funding for only 3 months. Reimbursement will only be provided if the local authority conducts a human rights assessment as necessary under Schedule 3.

Monday, 18 November 2013

International Relocation Case Summary

W (Children) [2011] EWCA Civ 345

Court of Appeal (President, Lloyd & Elias LJJ)

The application by an Australian mother to relocate to Australia with two children (a girl of 12 & a boy of 8) was refused at first instance.

The court held:

99. The judge himself found that the mother would be "devastated" were her application to be refused. That, in my judgment, is a critical finding. There is also the statement from her health visitor and from her general practitioner, to which the judge makes no reference, No criticism can be made or was made of her relocation plans. It follows that not only was her motivation unimpeachable, but that the plans themselves were plainly in the best interests of the children. Thus all the factors on her side of the scales weigh heavily – and most heavily weighs the effect on the children, through her, of a refusal of permission to relocate.

100. Apart from the documents to which I have referred. the judge does not put into the scales either the loss to the children of their relationship with the mother's side of the family if the children do not go to Australia, or the benefit to them of contact with that since of the family if they do. In my judgment, these are serious omissions.

101. On the other side of the scale falls to be weighed the father's objection – and I do not minimise it – namely what he sees as the loss of the newly gained relationship with himself and other members of his family, including, of course, his two adult children by a different relationship.

102. My conclusion is that even when this factor is weighed in the scales the balance still comes down heavily in favour of relocation. I reach this conclusion for a number of reasons.

103. The first is, of course, that when one is looking at the best interests of children, the best interests of their primary carer is a very important consideration and, I have to say, on the facts of this case, clearly outweighs the newly acquired relationship with the left behind parent.

104. Secondly, there was no evidence that the father's relationship with the children would be terminated. The mother's evidence was that the children would visit England and spend a month a year with the father. He would also have the benefit of Skype, telephone and writing, both by Email and letter. These, moreover, are all within the province of the court to order – a fact which the judge nowhere considers.

105. Thirdly the judge was in my judgment wrong to assume the impotence of the court either here or in Australia. If either court refused to make a contact order – or rescinded an order already made, it could only do so on the basis that the new order – or lack of it – was in the best interests of the children. As to that, the common evidence was that the continuation and expansion of the relationship was in the best interests of the children, and speaking for myself, I would expect both courts so to order.

106. Equally, in these days of instant communication and internationally established liaison judges, I have more confidence than the judge (he expressed none) that neither court would sit idly by and allow the relationship to wither. In my judgment, the father should not be permitted to allow the fact that he is a litigant in person to lead the court to believe that as a consequence he is so disadvantaged that nothing will happen, or that his difficulties are insuperable.

107. It is in this context that I find that judge's bland acceptance of the father's failure of apply to the court for contact unacceptable. The proof of that particular pudding is surely in the eating. The father did not apply. When the mother applied to relocate, what happens? He gets court ordered contact. Even if – as to which there is no finding – the mother was obstructive, she did not obstruct the court ordered contact – rather the reverse

108. There is, moreover, a further reason for criticising the judge under this heading. Professor Marilyn Freeman of the Centre for Family Law and Practice in London, to whose work the father refers, conducted a one year qualitative research project into the question of relocation commencing in June 2008. As well as organising a conference in London in the summer of 2010, Professor Freeman published an article in International Family Law, which is based on the paper she gave to an earlier conference in South Africa. She asks the direct question: "Is Relocation in Children's Best Interests?" And the short answer which she gives is : "we don't know". She concludes her article with these words:

"So we have much work to do. We need to know, firstly, what impact relocation has on the relocated child and, in particular, about children's resiliency in these circumstances. From here, we will need to have the basis for international law to do what it says on the tin: to work in the best interests of the children the law seeks to serve."

Nobody, I think, could disagree with that. I certainly do not.

109. In my judgment, it follows that the balancing exercise has to be carried out on the facts of the particular case. For the English Judge at first instance the facts may show a case in which the importance of the continuing relationship with a left behind parent tips the scale against relocation. Such cases do, of course, exist: see, for example, the decision of Mostyn J in Re AR (a child: relocation) [2010] EWHC 1346, to which the father refers. It is also, I think, worth noting that where the motivation of the relocating parent is found by the court to be inimical to welfare, the court has the power to prevent even a modest internal relocation: - see Re L (Shared Residence Order [2009] 1 FLR 1157.

In addition to the specific issue raised in the appeal the President also reminds practitioners of the fact specific nature of relocation cases and the policy approach of the court to appeals in family cases.

Like all "relocation" cases, this application is highly fact specific and very difficult.

Friday, 15 November 2013

International Relocation Case Summary

F (A Child) [2012] EWCA Civ 1364

Ct Appeal: Pill, Toulson, Munby LJJ

This case concerned the Spanish parents of a boy aged 8. They moved to England in 2009. By May 2011 the parents made plans to stay until 2013. In July / August 2011 the parents returned to Spain where it became obvious that their relationship was in trouble. The mother briefly came back to England and left the son with his father so that he effectively became the primary carer in the year before the appealed decision. It was her wish to live in Spain permanently whereas the father wished to stay in England. There were a number of court hearings during which it was decided that the child was habitually resident in England. The court eventually made a shared residence order but gave the mother permission to remove the child from the jurisdiction, effectively allowing father to have contact for about half of the school holidays.

Munby LJ characterised the case as neither a Payne case because the mother was not the primary carer nor a shared care case in the sense intended in Re Y & K v K.

Despite it not strictly being a Payne case this did not mean that the court was not entitled to consider the guidance in Payne. Equally it was not a case in which the fact that the father was the primary carer at the time the decision was made to allow the mother to leave the jurisdiction was decisive.

The Judge had weighed many factors in the balance as he was entitled to do including the length of time the child had lived in Spain before the parents moved to England, the fact that almost all of his extended family remained in Spain and that the boy saw himself very much as Spanish & was bilingual and had stayed in touch with his Spanish school friends, the fact that the parents had not decided to live in the UK forever and were likely to have returned to Spain at some point & that the father would be likely to move back to Spain if mother was allowed to return with the child, the ease with which the father could have extensive contact (both parents would promote contact with the other), the evident difficulty which an experienced and thoughtful Cafcass Officer had in making any recommendation (indicating that it was a finely balanced case), the fact that the boy himself was happy in both households but expressed a preference for the short school day in Spain and that mother would be marginally more available to the son as a result of her working hours.

So far as the emotional impact of his decision on the parents he found that both of them would be emotionally devastated at first but neither of them would collapse and in time they would recover.

There is another lesson to be learnt from this case. Adopting conventional terminology, this was neither a 'primary carer' nor a 'shared care' case. In other words, and like a number of other international relocation cases, it did not fall comfortably within the existing taxonomy. ... advocates & judges must resist the temptation to try and force the facts of the particular case with which they are concerned within some forensic straitjacket. Asking whether a case is a "Payne type case" or a "K v K" type case or a "Re Y type case", when in truth it may be none of them, is simply a recipe for unnecessary and inappropriate forensic dispute or worse. It is to be avoided. The focus from beginning to end must be on the child's best interests

Thursday, 14 November 2013

International Relocation Case Summary

K v K (Children: Permanent Removal from Jurisdiction) [2011] EWCA Civ 793, [2012] Fam 134

Para 40 of Payne

Approach which should be adopted if the primary carer's proposals seem reasonable to avoid them being elevated into a legal presumption & to ensure they are compatible with the welfare of the child:

Begin by asking:

* is the mother's motivation genuine & not inspired by a desire to exclude the father from the child's life?
* is the mother's application realistic, practical,well-researched & investigated?

If not the application is likely to fail.

If yes then the court should go on to consider:

* what would be the impact on the mother of refusal either as a single parent or a new wife?
* what is the effect of considering whether the mother's proposals are well thought through and the impact on her of refusing on the welfare of the child?

Thorpe's comment was: in any evaluation of the welfare of the child as the primary consideration great weight has to be given to the importance of the emotional & psychological well-being of the primary carer.

In K Thorpe LJ said that if there is no primary carer and the parents are sharing the care in more or less equal proportions the reasoning above is not applicable and the court should simply apply the criteria in the s 1 welfare checklist.

However, he also said: ".... the only principle to be extracted from Payne v Payne is the paramountcy principle. All the rest, whether in paragraphs 40 and 41 of my judgment or in paragraphs 85 and 86 of the President's judgment is guidance as to factors to be weighted in seach of the welfare paramountcy."

Black LJ supported by Moore-Bick LJ disagreed with him that it was necessary to set Payne completely to one side.

She reminds herself that the ratio in Payne was always that the welfare of the child is the paramount consideration.

The other questions and guidance suggested in Payne nonetheless provide a useful thought process and discipline to be used as a tool in getting to a view on where the best interests of the child might lie.

"Payne therefore identifies a number of factors which will or may be relevant in a relocation case, explains their importance to the welfare of the child, and suggests helpful disciplines to ensure that the proper matters are considered in reaching a decision but it does not dictate the outcome of a case. I do not see Hedley J's decision in Re Y as representative of a different line of authority from Payne, applicable where the child's care is shared between the parents as opposed to undertaken by one primary carer; I see it as a decision within the framework of which Payne is part. It exemplifies how the weight attached to the relevant factors alters depending upon the facts of the case."

"Accordingly, I would not expect to find cases bogged down with arguments as to whether the time spent with each of the parents or other aspects of the case "a Payne case" or a "RE Y case", nor would I expect preliminary skirmishes over the label to be applied to the child's arrangements with a view to a parent having a shared residence order in his or her armoury for deployment in the event of a relocation application. The ways in which parents provide for the care of their children are, and should be, infinitely varied. In the best of cases they are flexible and responsive to the needs of the children over time. When a relocation application falls to be determined, all of the facts need to be considered."

Wednesday, 13 November 2013

International Relocation Case Summary

I will be posting a series of relocation case summaries on the blog and then updating my relocation case summaries library which I will post on Children In Law

Z (A Child) [2012] EWHC 139 (Fam)

Decision of the High Court (Pauffley J).

The Australian mother applied in London for permission to relocate to Australia with her 6 year old daughter. The father was Belgian. Since 2006 the family had lived in London, Belgium & Belfast. He disputed the jurisdiction of the English court. Following contact with the child in Belgium he did not return her to the mother, misled the Belgian court and for a short while went into hiding with the child. The English court made a declaration that it had jurisdiction(on the basis of habitual residence since 2007) which father did not appeal although he did not accept it up until the last minute (and did not attend court for hearings in part because of an incorrect belief that he was at risk of imprisonment because of the existence of a port alert). The mother did at one point seek to mediate and withdrew her application to relocate but ultimately went back to her original plan to relocate. The High Court gave the mother permission to relocate to Australia. The mother was clearly the primary carer and it was unthinkable to repeat the situation in which the daughter had been placed when the father had unlawfully retained her. Mother's reasons for wanting to go were proper ones (she felt isolated in London, all her family lived in Australia (she could live with her father), it was her home country, she was likely to find better employment (she was a qualified nurse and already had job offers) & enjoy greater success there) and she would be shattered by a refusal. She had had to receive counselling post the unlawful retention. She was genuine in her commitment to continuing contact with the father. In London, she was understandably anxious about a further attempt at removal by the father which was all the more reason why she needed the support of her family. (The Cafcass Officer had not felt able to make a definitive recommendation in part because of a lack of assistance from the father to discuss the case except by email).

Tuesday, 12 November 2013

No Recourse to Public Funds Network

LB Islington have established a really useful network which local authorities can join to share knowledge and experience of dealing with clients whose immigration status involves No Recourse to Public Funds.

The NRPF Network website publishes guidance and assessment guidance, a human rights assessment template, factsheets & news bulletin. Equally useful to local authorities in that if good practice is followed it is likely to protect from judicial review and for those advising the NRPF population to ensure they get the resources & help they need and can have in connection with supporting their children.

Research conducted by the NRPF Network during 2008 found that 48 local authorities were supporting almost 4,000 people with no recourse to public funds (NRPF) at a minimum cost of £33.4 million a year. This is an increase of 8% on expenditure incurred in the financial year 2006/07. Local authorities have a statutory duty to support migrants who have NRPF with assessed community care needs, yet the costs of providing this support are not reimbursed by central government.

The interplay between Schedule 3 to the 2002 Act and section 17 of the 1989 Act was explored by the Court of Appeal in R (on the application of Clue) v Birmingham City Council [2010] EWCA Civ 460 . At paragraphs 54 and 55, Dyson LJ (as he then was), giving the judgment of the Court, explained that, if an applicant seeking assistance would in general be ineligible for support under the terms of the Schedule (i.e. because he/she is unlawfully present in the UK and not an asylum-seeker), the local authority must nevertheless decide whether, and if so to what extent, it is necessary to exercise a power or perform a duty for the purpose of avoiding a breach of Convention rights. Where there is a range of different types of assistance available to the local authority which would avoid a breach of Convention rights, the local authority should identify those types of assistance and then choose between them.

If the local authority considers that there are available to the applicant other sources of accommodation and support so that the withholding of assistance would not cause him/her to suffer from destitution amounting to a breach of Convention rights (typically article 3), that is the end of the matter. However, if it is satisfied that there are no other sources of support and assistance, it must then decide whether there is any impediment to the applicant returning to his/her country of origin. Where the only potential impediment is practical in nature (e.g. the applicant cannot afford to pay for his/her passage to the relevant country), it is open to the local authority to avoid a breach of Convention rights by, for example, funding the applicant's return.

However, Dyson LJ made clear (at paragraph 66) that, when faced with an application for assistance pending the determination of an arguable (i.e. not manifestly unfounded) application for leave to remain in the UK on Convention grounds, a local authority should not refuse assistance if the effect of that refusal would be to require the applicant to leave the UK and thus to forfeit the opportunity of succeeding in his/her application for leave to remain.

Monday, 11 November 2013

Local Authority's Duties to Homeless Teenagers (including Unaccompanied Asylum Seeking Children)

R (G) v Southwark LBC [2009] UKHL 26

Para 28

Section 20(1) entails a series of judgments, helpfully set out by Ward LJ in R (A) v Croydon LBC [2008] EWCA Civ 1445, at para 75. I take that list and apply it to this case.

• Is the applicant a child?...

• Is the applicant a child in need? This will often require a careful assessment. In this case it is common ground that A is a child in need essentially because he is homeless.

• Is he within the local authority’s area?

• Does he appear to the local authority to require accommodation?

• Is that need the result of:

• There being no person who has parental responsibility for him; for example, where his parents were unmarried, his father does not have parental responsibility, and his mother has died without appointing a guardian for him;

• His being lost or having been abandoned; or

• The person who has been caring for him being prevented from providing him with suitable accommodation or care.

• What are the child’s wishes and feeling regarding the provision of accommodation for him? … It follows, therefore, that every item in the list had been assessed in A’s favour, that the duty had arisen and that the authority were not entitled to ‘side-step’ that duty by giving the accommodation a different label.

See also: Provision of Accommodation for 16 & 17 year old young people who may be homeless and / or require accommodation: Guidance to children’s services authorities and local housing authorities about their duties under Part 3 of the Children Act 1989 and Part 7 of the Housing Act 1996 to secure or provide accommodation for homeless 16 and 17 year old young people – issued April 2010 SCSF -

2.23 There can be no doubt that where a young person requires accommodation as a result of one of the factors set out in section 20(1)(a) to (c) or section 20(3) then that young person will be in need and must be provided with accommodation. As a result of being accommodated the young person will become looked after and the local authority will owe them the duties that are owed to all looked after children, set out in sections 22 & 23 and once they cease to be looked after, the duties that are owed to care leavers under that Act.

Thursday, 7 November 2013

DNA testing - directions & letters of instruction

Extract from the Judgment of Mr Anthony Hayden QC, sitting as a Deputy High Court Judge in Re F (Children) DNA Evidence [2007] EWHC 3235 Fam

(i) Any Order for DNA testing made by the Family Courts should be made pursuant to the Family Law Act 1969.

(ii) The Order should specify that it is being made pursuant to the Act and either the company who is to undertake the testing should be named or the Order should direct that the company identified to undertake the testing is selected in accordance with the Act, from the Ministry of Justice Accredited List. Only accredited companies may be instructed.

(iii) The taking of samples from children should only be undertaken pursuant to the express order of the court. If a need arises for further samples to be taken, that should be arranged only with the approval of the court. If all the parties agree on the need for further samples to be taken, the application may be made in writing to the Judge who has conduct of the matter. These requirements should be communicated to the identified DNA company in the letter of instruction.

(iv) Save in cases where the issue is solely confined to paternity testing, where the identified company may have its own standardised application form, all requests for DNA testing should be by letter of instruction.

(v) The letter of instruction should emphasise that the responsibilities on DNA experts are identical to those of any expert reporting in a family case and that their overriding obligation is to the court. Further, if any test carried out in pursuance of their instruction casts any doubt on, or appears relevant to the hypothesis set by their instructions, they should regard themselves as being under a duty to draw that to the attention of the court and the parties.

(vi) Any letter of instruction to a DNA company should set out in clear terms precisely what relationships are to be analysed and, where the information is available, the belief of the parties as to the extent of their relatedness. (In recent decades British society has become much more culturally diverse. Some cultures have different attitudes to consanguine relationships, others include children within the family for a variety of reasons (usually highly laudable) who may have remote or indeed no genetic connection to the adults. In these cases, separate statements from the parties setting out the family history and dynamics is likely to be helpful).

(vii) The letter of instruction should always make clear that if there appears to the DNA expert to be any lack of clarity or ambiguity in their written instructions, or if they require further guidance, they should revert to the solicitor instructing them. The solicitor should keep a note or memorandum of any such request.

(viii) The reports prepared for the court by the DNA experts should bear in mind that they are addressing lay people. The report should strive to interpret their analysis in clear language. Whilst it will usually be necessary to recite the tests undertaken and the likely ratios derived from them, care should be given to explain those results within the context of their identified conclusions.

(ix) Particular care should be taken in the use of phrases such as "this result provides good evidence". That is a relative term (and was here overtaken by stronger contrary evidence). Such expressions should always be set within the parameters of current DNA knowledge and should identify in plain terms the limitations as to the reliability of any test carried out. A "likelihood ratio" by definition is a concept which has uncertainty inherent within it. The extent of uncertainty will vary from test to test and the author of the report must identify and explain those parameters (e.g. It is not always possible to demonstrate half sibling relationship by DNA testing, even where it is given that a biological relationship exists".

(x) In this case, Orchid Cellmark conducted all the tests undertaken by Anglia DNA but also some further additional tests. Though it is not a feature of the evidence here, I would also add that where any particular test and subsequent ratio of likelihood is regarded as in any way controversial within the mainstream of DNA expertise, the use of the test and the reasons for its use should be signalled to the court within the report.

Click for full draft letter of instruction in word.

Wednesday, 6 November 2013

Possible Questions for Opthalmologist

Has the child sustained any opthalmological injury?

Please comment from an opthalmological point of view as to the likely cause, mechanism or timing of any injury sustained by the child.

Can you comment specifically on whether both retinal haemorrages occurred at the same time and whether they occurred at the same time as the haematomas identified by expert Y (if you consider this to be within your area of expertise)?

Can you please also comment in general terms on the difficulty or ease with which it is possible to date retinal or other relevant ophthalmic insults and the factors which make it difficult or easy to do so in the case of this child's injuries

Click for full draft letter of instruction in word.

Tuesday, 5 November 2013

Possible Questions to Radiologists

What is seen on radiological examination?

What interpretation should be placed on this?

What is the significance of the appearances on the CT and MRI scans?

What injury(ies) did the child suffer? Is there any organic cause or other explanation for what is seen?
If injury was suffered what was the cause of injury, its mechanism and likely timing?

Can you comment in general terms on the difficulty or ease with which it is possible to date any injuries sustained and the factors which make it difficult or easy to do so?

What was the clinical course of the child's presentation and how does this correspond with the appearances on the CT and MRI scans?

The parents have described an incident as follows .... Could this account for any injuries identified?

COMMENT: do be careful to present the parent(s) comments fairly. A parent may offer a suggestion to the doctors at the hospital eg 'the only thing I can think of is there was this time when etc. This is not necessarily the same as it being the parent's case that this is in fact the explanation for the injury.

Do you agree with the conclusion of X that there are Y subdural haematomas of different ages? If so, what signficance is there in the fact that there are haematomas of different ages?

Are the copies of the X rays of sufficiently good quality on which to base any conclusion about the timing of [the skull fracture] and if not, can anything be done to improve them.

Click here for full draft letter of instruction in word.

Monday, 4 November 2013

The B-S hall of fame

What follows is a short summary of the main principles from Re B & the subsequent cases including B-S on the court's approach to performing the balancing exercise in evaluating care plans involving placement away from the family. I will add to the summary as any more cases are decided.


Re B [2013] UKSC 33

The interests of the child must render it necessary to make an adoption order, a high degree of justification is required before an order can properly be made (Wilson), adoption should only be contemplated as a last resort, when all else fails (Neuberger), test is very strict and will be found to be satisfied only in exceptional circumstances and 'where nothing else will do'(Kerr), only in a case of necessity will an adoption order removing a child from his or her parents be proportionate (Clarke), strict test, only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, where nothing else will do (Hale)

The test for an appeal: was the Judge wrong?

Re B-S [2013] EWCA Civ 1146

Appeal against decision to refuse leave to apply to oppose adoption application.

The LA must file proper evidence about all the alternative outcomes analysing the arguments for & against each option
May be helpful to use balance sheet approach setting out positives & negatives by reference to the welfare checklists

Two-stage test: has there been a change in circumstances? Should leave be given?

Bring into the balance per Re B the arguments for & against each outcome?

Placement is not determinative.

The test should not be set too high.

Re G [2013] EWCA Civ 965

Linear approach to be avoided. Evaluation must be global & holistic. Formulaic judicial window dressing insufficient. The Judge must deal with the detail and the specifics.

Re P [2013] EWCA Civ 963

Appeal against care & placement orders.
Judge failed to carry out proper balancing exercise. Should have made clear findings on the facts as a platform for assessment of the potential disadvantages of placement with the father. The nature of the feared harm & its likelihood must be clearly identified and weighed against the positives. Case remitted for rehearing.

Re W [2013] EWCA Civ 1177

Parents appealed against refusal of permission to oppose adoption orders. In reviewing decisions post B-S court must focus on substance not form. Adoption orders set aside because permission applications should have been granted. The adoption orders should not have been finalised until after the time for appealing the refusal of permission had elapsed.

Re C

Appeal against care & placement orders by grandparent applying for Special Guardianship.

I confess to a personal interest in this case.

Linear approach still deprecated but the judgment might still be allowed to stand? Judgment must consider the checklists in both Acts.

Re V [2013] EWCA Civ 913
Judge at first instance declining to approve adoption care plan - parents unable to care but court considering long-term fostering to be the right outcome. Appeal of local authority allowed. On the facts of the case the balance fell in favour of adoption.

Re D-R

County Court judgment - the alternative care plan - adoption or fostering if adoption not achievable - survives Re B - just

Re W v Neath Port Talbot [2013] EWCA Civ 1277

Judge considering mother a much higher risk than LA & wanting them to have a care order with placement at home. Court held that LA has to accept court's evaluation of the risk and provide any evidence which the court requires. If they disagree the LA should appeal or risk being the subject of JR or injunctions.


Re R [2013] EWCA Civ 1240

Appeal against placement orders. Plan had been approved provided 2 children were placed together. This plan could not be achieved through either adoption or foster care so LA planned to place separately. Mother appealed. LA conceding that case should be re-opened to reconsider what was currently in the best interests of the children.


Questions for medical experts

The questions marked with an asterisk are taken from the judgment of Charles J in A Local Authority v K, D & L (supra) & those marked with a # are suggested by the Family Justice Council / Chief Medical Officer)

Please detail any medical difficulties experienced by X from birth to date.

* For each medical condition (death / injuries / harm) reported or identified please state all possible causes leading to such a condition and whether the condition(s) note can be said to have resulted from any particular cause and if so why it should be considered as a cause.

* Please state your views as to the likelihood of each possibility being the cause of the relevant condition / death / injury / harm and the reasons why they include or reject it as a reasonable (as opposed to a fanciful or merely theoretical) possible cause.

* Compare the likelihood of the cause (or causes) identified as reasonable possibilities being the actual cause of the relevant condition / death / injuries / harm.

* State whether you consider that a cause (or causes) is (are) the most likely cause (or causes) of the relevant death / injuries / harm and your reasons for that view.

* State whether you consider that a cause (or causes) is (are) more likely than not to be the cause (or causes) of the relevant condition / death / injuries / harm.

# Describe the child’s (current) health and development, functioning or difficulties and the prognosis for these difficulties if they are not addressed.

# Describe the child’s presenting condition / injuries, if any.

# Can you comment on the likely explanation and/ or aetiology of the child’s problems / difficulties / injuries and on the existence or likelihood of significant harm?

# Can you describe and prioritise the child’s needs, including the nature of future care-giving and treatment, in the light of the above, in the short and long term?

# Can you advise as to the parents’ / caregivers’ ability to fulfil the child’s identified needs?

# What, if anything, would be required to assist the parents / primary caregivers to be able to do so; and, if assistance is needed, what is the prognosis and timescale for change?

# Are other assessments needed?

# What are the alternative possibilities for meeting the child’s needs and what are the implications of each?

What effect will the medical condition have on the child's development and behaviour [and on his future needs]?

What level and type of care will the child need in future?

Can you comment on the likely cause, timing and mechanism of any injuries suffered by the child?

If you consider that a possible cause of X's presentation has to be ruled out, please explain why.

Is there anything of particular relevance arising from the detailed medical records?

What further investigations, if any, would need to be carried out to determine which of the possibilities put forward is correct?

Is an opthalmological [or other specfic] investigation required?

Is it possible to state whether there is any common medical predisposition or condition in this family which may be relevant to the question of causation of any injury?

Can you comment on the significance, if any, of the absence or presence of any markings on the child's body such as bruising?

Is it possible to comment on the likely presentation of the child after suffering the earlier subdural haematoma?

What significance, if any, should be attached [to the blood test results and in particular the haemoglobin level and the white blood cell count / the child's clinical presentation etc]?

Click for full draft letter of instruction in word.

Friday, 1 November 2013

Possible questions for independent social workers

Please comment on:

1. The needs of each of the children in terms of their short and long-term care;

2. The ability of the parents, together or separately, to meet those needs in the long-term, any difficulties they might have in meeting those needs, and any support which should and could be offered in order to support them in meeting those needs (and their ability to take advantage of that support);

3. The current and past relationship between the parents and the impact of that on each of the children;

4. The ability of the parents to work with professionals to promote the welfare of the children;

5. Your recommendations for the appropriate placement for each of the children;

6. If your recommendation is that any of the children should not be placed with the parents or either of them, what contact would you recommend there should be with the parents or either of them and with their siblings.

You might also want to direct them to use a BAAf type format for reporting or the core assessment framework or to cover areas required for a Special Guardian report.

Click for full draft letter of instruction in word.