Association of Lawyers for Children Autumn 2015 Issue 53

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newsletterAssociation of Lawyers for Children Autumn 2015 Issue 53

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Autumn

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Annual Conference 201519 November 2015

Venue: Midland Hotel

Location: Manchester

Time: 19 – 21 November 2015

Price: £535 full residential conference for ALC members and £610 for non members.Special price for LA solicitors

CPD Points: 12 CPD hours

“Are we nearly there yet?” A Child’s Journey through the Family Justice System’ is thetitle of the 26th annual conference which will be held at the Midland Hotel in Manchester on20th November.

Rt Hon Lady Hale DBE, Deputy President of the Supreme Court will deliver this year’s keynotespeech.

Lady Hale will present the ALC’s prestigious Outstanding Newcomer in the Field of ChildrenLaw Award at the conference dinner on 20 November. If you know someone whom you think isan exceptional newcomer to the field of children law then please nominate. Maybe they havedemonstrated an ability for supporting clients, have researched points of law, have helped withtraining, developed new ideas and initiatives or represented parties in a particularly noteworthycase. Closing date for nominations is Monday 2 November. See below for the award criteria.

Go to http://alc.org.uk/uploads/Programme_(2)_2015.pdf for the Conference Programme

All bookings are made online through the conference booking link on:https://www.regonline.co.uk/Register/Checkin.aspx?EventID=1698848

ALC members received a £75 discount on the cost of the 3 day residential booking.

For queries please email Helen, Conference Administrator on [email protected] telephone 01371 705050.

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Dates for your diaryKidsAid – “Voice of the Child” Conference – 7 November 2015

Lord Wilson of the Supreme Court (keynote), Mr Justice MacDonald and His Honour JudgeTony Hughes are just some of the big-hitting speakers at the ‘Voice of the Child’ conference atAlthorp House (Northamptonshire) on November 7th.

The judges, some of the country’s leading names in family law, will discuss how the needs andrights of the child can be best heard in the court system.

Shelagh Beckett, an independent social worker and national authority on sibling attachments, whois also a frequent court expert, will also speak and form part of a lively panel discussion. Dr. MartinNewman - Consultant and Hon. Senior Lecturer in Child and Adolescent Psychiatry at St George’s,University of London - and a leading authority in cases where one parent murders the other – willalso appear.

Bringing together professionals from family law, child health and psychiatry, social work andadoption the other speakers are:

Professor Sir Al Aynsley-Green, the first National Clinical Director for Children, first Children’sCommissioner for England, and President of the British Medical Association;

Professor Dieter Wolke, from the Dept. of Psychology and Division of Mental Health & WellbeingUniversity of Warwick who is a leading expert on the long-term impact of bullying;

Lisa Cherry, formerly a ‘looked after child’, now writer and speaker with huge insights about theworld of the traumatised child as well as a former social worker and Connexions worker;

Dr. Eunice Lumsden is Head of Early Years at the University of Northampton and Fellow of theHigher Education Academy; a registered Social Worker for over 20 years;

Matt Butler from New Haven Residential Treatment Center for Troubled Teen Girls, in theUnited States.

The conference, is entitled “Can you hear me? Listening to the voice of the child facing adversity”and runs from 9 a.m-4.30 p.m. It is hosted by Earl and Countess Spencer. (Lady Spencer is thePatron of KidsAid.)

Luncheon, which is part of the ticket price, is prepared by the Althorp chefs and served in the statedining room. The cost is £150, for 5.5 CPD hours and tickets can be purchased online viawww.viaeventbrite.co.uk. (kidsaid-conference)

For more information please email [email protected]

All proceeds go to the charity, which provides play-based therapies to children and young people.KidsAid, registered charity no 1122047 (England & Wales)



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ContentsAutumn 2015 Issue 53The Newsletter of the Association of Lawyers for Children provides a forum for all professionals working in the field of child law and seeks todraw attention to current legal issues. The views expressed in the Newsletter are those of the individual contributors and are not necessarily theviews of the Association, its Committee or the Editors. The publication is intended for information only and is not meant to provide any kind oflegal guidance or opinion. The work may be freely reproduced so long as authorship is acknowledged. It is not to be used for any commercial orprofit-making purpose.

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Editorial 2

New Dilemmas, Old Solutions 4

Care and Placement Order cases with a European Dimension 8

Dispute Resolution Advisory Group 16

Family justice, children’s privacy and options for accountability in public services 20

Relocation to the Sunshine 22

Family Justice Reforms four years on 24

Family Procedure Rule Committee Consultation 26

ALC Response to the Special Guardianship Review 32

Publish and Be Damned? 38

Minutes of the AGM 42

Book Reviews 44

Outstanding Newcomer in the Field of Children Law 48

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Editorial

Editorial

George EddonEditor

Welcome to the Autumn edition of the Newsletter.This time we have articles covering a number ofitems that focus on the experiences of children in thefamily justice system.

Young people tell us that they are anxious about thedetails of their cases becoming public. On thesubject of transparency, in particular the publicationof judgments, Julia Brophy tells us about recentresearch that shows that even anonymisedjudgments do not guarantee privacy – a group ofyoung people scrutinised a number of judgmentsfrom BAILII and found that, to a surprising extent, itis possible to identify a child even afteranonymisation. This issue is high on the agenda ofthe ALC Executive and of the InterdisciplinaryAlliance for Children.

Some young people experience the court systemwith particular intensity because they are called togive evidence, or attend the hearing for otherreasons. The Family Procedure Rule Committee hasbeen consulting on changes to the Rules to providefor the involvement of young people and we have acopy of the ALC’s response. Cases where a youngperson participates directly are still in a minority, butare increasing in frequency, so this is anotherimportant issue for the Executive.

Another area where numbers remain small, but aresteadily rising, is international relocation. The ALC/

Hanson Renouf Jersey Conference on 2 October wasdevoted to this and I am grateful to Barbara Corbettfor producing a detailed report in time for us toinclude it.

Special Guardianship is set to become a topic ofdebate in the coming months, with the launch bythe Department for Education of a review. The firststage of this process was a Call for Views issued overthe summer. The review is timely, not least becausethe use of special guardianship appears to haveincreased following the judgments in Re B and ReB-S. Special Guardianship is being used for anincreasing number of young children, including asignificant number aged under one year. It is alsoreported that family members who would not havebeen considered a few years ago are now beingapproved as special guardians.

The DfE is worried that special guardianship isbecoming the ‘default option’ for children whocannot return to their parents, even for very youngchildren who would previously have been adopted.There is evidence that that is the case and credit isdue to the DfE for recognising it. SpecialGuardianship was not intended to provide“adoption-lite” for young children and the DfE isright to question whether it is fit for that purpose.That does not, however, mean that it is automaticallyright to go back to the pre B-S situation where,arguably, adoption was the default option forchildren below a certain age. We need to engagefully in the current review, but in doing so we needto keep in mind that the DfE is committed toincreasing the use of adoption and this may or maynot be reconcilable with our case-by-case, welfare-centred approach.

The ALC has responded to the Call for Views and acopy of the response is in the Newsletter. This is animportant issue and I make no apology for settingthe response out in full. It is also available on ourwebsite. There will no doubt be further debate andconsultation once the DfE has considered thefeedback that it has received. We urge all ourmembers to take part in that debate and make theirviews known.


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The current and former members of the ExecutiveCommittee have had a number of successes sincethe last issue and we would like to give them all ourheartfelt congratulations (and apologies for any thatwe have missed):

• Alistair MacDonald QC, former co-chair, onhis elevation to the High Court Bench;

• Noel Arnold, on winning a Legal Aid Lawyerof the Year Award;

• Nicola Jones-King, on winning Partner of theYear at the Family Law Awards;

• Emma Kendall and her colleagues atWarwickshire County Council, on winningthe Local Authority award at the Family LawAwards

The next edition of the Newsletter will be out inSpring 2016.


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New Dilemmas, Old Solutions

New Dilemmas, Old SolutionsLegal Parenthood and the decision in Human Fertilisationand Embryology Act 2008 (A and Ors) [2015] EWHC 2602

Deirdre Fottrell QC,1 Garden Court

Jemma Dally,Partner, Goodman Ray Solicitors

The question of who in law is to be treated asthe parent of a child born as a result of assistedreproduction treatment carried out under theHuman Fertilisation and Embryology Actappeared to be an issue which was clearly setout in the Act itself. In Human Fertilisation andEmbryology Act 2008 (A and Ors) [2015] EWHC2602 however the issue arose as a consequenceof administrative errors in fertility clinics. ThePresident of the Family Division noted that theissue of who is a child’s parent is:

“a question of the most fundamental gravity andimportance. What, after all, to any child, to anyparent, never mind to future generations andindeed to society at large, can be moreimportant, emotionally, psychologically, sociallyand legally, than the answer to the question:Who is my parent? Is this my child?”

In these cases the Court was being asked to resolveissues around the acquisition of legal parenthoodand, in particular, the interpretation of the provisionsof the 2008 Act governing consent to parenthood inrespect of children conceived using donor sperm, incircumstances where administrative mistakes havebeen made by the clinics treating the parents. Inparticular clinics had made errors in obtainingwritten consent to parenthood. The HumanFertilisation and Embryology Authority (TheAuthority), which is the body which oversees theregulation of fertility clinics under the Act, and theclinics took the view that as a result of the errors theparents could not be treated in law as parents to thechildren that had been born from their treatment.

Who are the legal parents of a childconceived by artificial insemination?

Who the legal parents will be of any child who isconceived by way of artificial insemination, either athome or in a licensed fertility clinic, is governed by

the Human Fertilisation and Embryology Acts 1990and 2008.

For children conceived prior to 5 April 2009, the1990 Act will apply and for children conceived afterthis date, the 2008 Act is the relevant legislation.The children in this case were all born after 6th April2009.

What do the HFEA 1990 and 2008say about who is a parent?

The 2008 ActPart 2 of the 2008 Act (sections 33-58) governsParenthood in Cases Involving AssistedReproduction.

Section 33(1) provides as follows:

“The woman who is carrying or has carried achild as a result of the placing in her of anembryo or of sperm and eggs, and no otherwoman, is to be treated as the mother of thechild.”

Sections 35 to 47 apply to determine who is to betreated as the other parent of the child. Thesesections distinguish between four different cases,depending on the marital status of the woman beingtreated at the time of the treatment:

1. Where the woman is marriedSection 35 applies where the woman was married toa man at the time of treatment;

2. Where the woman is in a civil partnershipSection 42, as amended by the 2013 Act, applieswhere the woman was in a civil partnership ormarriage with another woman at the time of thetreatment;

Sections 35 and 42 provide in very similar termsthat the other party to the marriage or civilpartnership, as the case may be, “is to be treatedas [in the case of section 35, “the father”; in thecase of section 42, “a parent”] of the child unless itis shown that [section 35 “he”; section 42 “she”]



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did not consent to the placing in W of the embryoor the sperm and eggs or to her artificialinsemination (as the case may be).”

3. Where the woman is not married or in a civilpartnership and is being treated with a malepartnerSection 36 applies if the woman is being treatedwith a man and where no man is treated by virtue ofsection 35 as the father of the child and no womanis treated by virtue of section 42 as a parent of thechild but –

(a) the embryo or the sperm and eggs were placedin W, or W was artificially inseminated, in thecourse of treatment services provided in theUnited Kingdom by a person to whom a licenceapplies,

(b) at the time when the embryo or the sperm andeggs were placed in W, or W was artificiallyinseminated, the agreed fatherhood conditions(as set out in section 37) were satisfied in relationto a man, in relation to treatment provided to Wunder the licence,

(c) the man remained alive at that time, and

(d) the creation of the embryo carried by W was notbrought about with the man’s sperm,

If these conditions are met then the man is to betreated as the father of the child and section 38provides that in these circumstances, no otherperson is to be treated as the father of the child.

4. Where the woman is not married or in a civilpartnership and is being treated with a femalepartnerSection 43 applies if the woman is being treatedwith a woman and where no man is treated by virtueof section 35 as the father of the child and nowoman is treated by virtue of section 42 as a parentof the child but –

(a) the embryo or the sperm and eggs were placedin W, or W was artificially inseminated, in thecourse of treatment services provided in theUnited Kingdom by a person to whom a licenceapplies,

(b) at the time when the embryo or the sperm andeggs were placed in W, or W was artificiallyinseminated, the agreed female parenthoodconditions (as set out in section 44) were met inrelation to another woman, in relation totreatment provided to W under that licence, and

(c) the other woman remained alive at that time,

If these circumstances, the other woman is to betreated as a parent of the child and section 45(1)provides that in these circumstances, no man is to betreated as the father of the child.

What are the agreed fatherhood/parenthoodconditions?The HFEA 2008 sets out how the agreed parenthoodconditions are met and the Human Fertilisation andEmbryology Authority has published extensive clinicsguidance on how to meet these conditions. Theguidance is found in a Code of Practice and also in aseries of directions to clinics. As part of its guidancethe Authority required that consent to parenthoodbe taken on particular forms. The authority’s ownreading was that taking of consent on the forms wasmandatory and the absence of a properly completedform could vitiate the consent.

The conditions are set out in section 37 (in relationto a man) and section 44 (in relation to a femalepartner). The conditions set out on Sections 37 and44 share the same fundamental features, these are:

i) That the treatment must be given under alicence.

ii) That the man or female partner, as the case maybe, must have given a notice (sections 37(1)(a),44(1)(a), as the case may be), stating that he orshe consents to being treated as the father or aparent of any child resulting from treatmentprovided to the woman.

iii) That the woman being treated must have given anotice (sections 37(1)(b), 44(1)(b), as the casemay be), stating that “she consents to the manor her female partner being so treated”.

iv) The notices must be (sections 37(2), 44(2), as thecase may be) “in writing” and “signed by theperson giving it.”

v) The notices must have been signed before thetreatment took place: see the words “at the timewhen … [etc]” in sections 36(b) and 43(b) andmust not have been withdrawn.

The Role of the Human Fertilisation andEmbryology Authority.The Act has to be read with the accompanyingguidance which is given by the Human Fertilisationand Embryology Authority (The Authority), who arean independent regulator whose role is to overseethe use of gametes and embryos in fertility treatmentor research. They licence fertility clinics in the UK.The guidance includes the following:


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a. A Code of Practice (issued in accordance withsection 26 HFEA 1990) which sets out in greaterdetail the conditions to be met in respect oftreatment, parenthood and the role of licensedclinics (including the conditions of licence).

b. The Guidance produced by the Authority.

c. Directions (issued in accordance with section 23HFEA 1990)

d. Letters from the Chair and from the ChiefExecutive of the Authority.

What went wrong?Before the introduction of the 2008 Act, malepartners of women seeking treatment wouldautomatically be legal parents, if they were seekingtreatment together. Female partners of womenseeking treatment could not be legal parents underany circumstances under the Act (although adoptionand private law orders were available under otherlegislative regimes).

Although clinics were not required to take consentto parenthood under the 1990 Act, the Authorityhad attached to the first Code of Practice (issued in1990) a consent form that clinics could use to takeconsent from the woman seeking treatment tohaving that treatment, and to her husband/malepartner, to becoming the legal parent of anyresulting child.

The introduction of the HFEA 2008 on 6 April 2009brought about fundamental changes to parenthoodfor children born as a result of assisted reproductionwith donor sperm/embryos. To assist clinics withthese changes the Authority gave directions inaccordance with its statutory powers requiring thatany consent required under sections 37(1) and 44(1)“must” be recorded in a specified form: respectively,Form WP (“your consent to your partner being thelegal parent”) and Form PP (“your consent to beingthe legal parent”).

These changes in the HFEA 2008 required clinics tofundamentally change the way in which they tookconsent from unmarried couples who were seekingtreatment with donor sperm/embryos to conceive achild. What has emerged in the cases of AB and CDv Z Fertility Clinic [2013] EWHC 1418, [2013] 2 FLR1357, X v Y (St Bartholomew’s Hospital Centre forReproductive Medicine (CRM) intervening) [2015]EWFC 13 and The Human Fertilisation andEmbryology Act 2008 (A and Ors) [2015] EWHC2602 is that clinics had not appreciated theimportance of changing their practice in takingconsent to parenthood for unmarried couples; theyhad not fully understood the importance ofcompleting the HFEA WP and PP forms.

It was not until the case of AB and CD v Z FertilityClinic [2013] EWHC 1418, [2013] 2 FLR 1357 in2013 that failures in the way that clinics were takingconsent to parenthood came to the attention of theAuthority. As a result of this case, on 10th February2014, the Chief Executive of the Authority requiredclinics to carry out an audit of their records ofpatients who were not married or in a civilpartnership and who had received treatment withdonor sperm/embryos. This audit disclosed anomaliesin the taking of consent to legal parenthood in 51out of 107 clinics, almost half of all clinics in the UK.

At paragraph 8 of his judgment, the Presidentreferred to the picture which emerged from theaudits as ‘alarming and shocking’. The President alsoquestioned whether the Authority had adequatelydischarged its regulatory functions or whether theissue was that the regulatory powers under the Actwere not sufficiently robust.

The Solution – The Human Fertilisation andEmbryology Act 2008 (A and Ors) [2015] EWHC2602The President of the Family Division heard 8 cases, 7of which were able to conclude and 1 has beenadjourned to a later date.

In the 7 cases heard each parent had been advisedthat an error had been made with the taking of theirconsent to legal parenthood. Each parent was told,as a result of guidance given by the Authority andadvice from the clinic that treated them, that theerror meant that they could not be treated in law asa parent to their child, who in some cases had beenborn years earlier, and that the only way to remedythe error would be for the non birth parent to adopttheir own child. For the two parents who hadseparated from the mother, adoption was notavailable to them in any event; for the other familieswho were still together, adoption was not an optionfor them. Each parent sought a declaration ofparentage to remedy the error that had been madeby the clinics.

The following facts applied to each of the casesheard by the President:

i) The treatment which led to the birth of the childwas embarked upon and carried through jointlyand with full knowledge by both the woman (W)and her partner.

ii) From the outset of that treatment, it was theintention of both W and her partner that herpartner would be a legal parent of the child.

iii) From the moment when the pregnancy wasconfirmed, both W and her partner believed that



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her partner was the other parent of the child.That remained their belief when the child wasborn.

iv) W and her partner registered the birth of theirchild, as they believed the child to be, showingboth of them on the birth certificate as the child’sparents.

v) The first they knew that anything was or mightbe ‘wrong’ was when they were subsequentlywritten to by the clinic.

vi) Both parents in each case supported theapplications.

vii) They do not see adoption as being an acceptableremedy.

The President considered that the seven cases raisedthree general issues of principle, which he set out inparagraphs 44-63 of his judgment.

1. The first was whether it was possible to prove byparol evidence that a WP or PP form which cannotbe found had been executed in a manner consistentwith the statutory requirements. Following theapproach taken by Theis J in X and Y, he concludedthat the question in such cases was a factual oneand could be resolved by making findings on factualevidence. In such circumstances, the court had to besatisfied that the form (which was lost) had beensigned before treatment. This was the approach theCourt took in cases A, B, E, F and H.

2. The second issue arose where there were errorson the forms, whether those errors could be‘corrected’. The President considered this to be anovel point which could be decided using longestablished principles of construction. He concludedthat a mistake could be corrected if the mistake wasobvious on the face of the document, and it wasplain as to what was meant. He went on to say thatan error on the internal consent form could also becorrected in the same way. This was the approachthat he took in the case of D.

3. The third issue was whether internal consentforms (which some clinics were using under the1990 Act), which contained some but not all of thelanguage of the WP/PP forms, were sufficient tomeet the statutory requirements.

The President revisited the statutory scheme as setout in both the 1990 Act and the 2008 Act. Heconcluded that:

“a mere failure to comply with the HFEA’s directionthat Form WP and Form PP “must” be used can, ofitself, invalidate what would otherwise be a consentvalid for the purposes of section 37 or section 44.These sections do not prescribe a specific form.What is required is a “notice” and that is notdefined.”

What is required under these sections is a “notice”in writing and signed. The President concluded thatwhat is required is compliance with the substanceand not “slavish adherence to a form”. This was theapproach that the President took in the case of C.

The President concluded that a failure to complywith the HFEA’s direction did not invalidate a consentthat would otherwise be valid. He further concludedthat the failure to comply with the directions of theHFEA did not in and of itself mean that the clinic wasnot operating under licence. In addition heconcluded that errors on the forms could becorrected by the Court itself as an exercise inconstruction where for example the wrong date hadbeen entered because not to do so would beperverse.

On the facts of each of the seven cases the Presidentmade declarations of parentage.

The significance of these cases is immense. The HFEAhad requested that clinics audit their files followingthe A and B case back in 2014. The result of thataudit was the 51 out of the 107 clinics operating inthe UK reported anomalies in the taking of consent.It is not entirely clear what that means in terms ofthe number of families in which the legalparenthood may be at issue as a result of errors inthe taking of consent. The President was highlycritical of the failure by the clinics to correctly applythe guidance but considering the issues as a wholehe observed that there was ‘widespreadincompetence across the [fertility] sector on a scalewhich must raise questions as to the adequacy if notof the HFEA’s regulation then of the extent of itsregulatory powers’ [paragraph 8].

It is likely that there will be further cases in which theacquisition of legal parenthood is at issue in similarcircumstances. These cases appear to provide aframework within which such applications should bedetermined.

Deirdre Fottrell and Jemma Dally represented theapplicants in cases A, B, C, D and E.


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Care and Placement Order cases with a European Dimension

Care and Placement Order caseswith a European Dimension1

Iain Goldrein QC1

Deputy High Court Judge of the Family DivisionHarrington Street Chambers, Liverpool L29 YHCoram Chambers, 9-11 Fulwood Place, LondonWC1V 6HG,KCH Chambers, Nottingham / Leicester

Introduction1:

1. The importance of Re E2: The recent case of ReE [2014] EWHC 6 (Fam) demands that we takeparticular care when handling any case with aEuropean dimension3.

2. General rule: The general rule is that jurisdictionis vested in the courts of the Member State4 wherethe child is habitually resident (Article 8), not thecourts of the Member State of which the child is anational.

3. The absence of definition: B2R does not definethe concept of habitual residence. It does howeverlay down a uniform jurisdictional scheme as betweenMember States5.

1 The emphasis in this paper by use of different fonts isthat of the author, not the judiciary.

2 “This (case) serves to underline the need for the partiesand the court to consider the basis for jurisdictionwhenever a case has a foreign element and for there tobe a record in an order of the court’s approach to it…”per Black LJ in Re B [2014] EWCA Civ 375, expresslyendorsing Re E.

3 The judgment in Re E is to be read in the context ofcare and wardship proceedings concerning a 12 yearold Slovakian boy. The judgment approved a care planfor E to be placed in the care of the local authoritywhilst living with his maternal aunt. There was muchmedia interest in Slovakia.

4 Denmark has opted out. B2R applies to all the otherstates of the European Union.

5 Member states of the European Union (apart fromDenmark) are also parties to Council Regulation (EC)No 2201/2003 concerning jurisdiction and therecognition and enforcement of judgments inmatrimonial matters and the matters of parentalresponsibility, commonly known as B2R.

4. This article covers the application of B2R to thefollowing:

a. Public law children (care proceedings); andb. Placement order cases.

See Re M etc [2014] EWCA Civ 152.

5. Context of B2R: There is a direct and purposefulinter-action between “Best Interests” and “HabitualResidence.” The Regulation provides –

“The grounds of jurisdiction in matters ofparental responsibility established in the presentRegulation are shaped in the light of the bestinterests of the child, in particular on the criterionof proximity.This means that jurisdiction should lie in the firstplace with the Member State of the child’shabitual residence, except for certain cases of achange in the child’s habitual residence orpursuant to an agreement between the holdersof parental responsibility.” [see para 48, Re M[ibid]].

In other words, the test of “habitual residence” hasbeen framed in the best interests of the child.

6. In Re E, the President said this. B2R – futurepractice in care cases:

35. “It is highly desirable, and from now on goodpractice will require, that in any care or otherpublic law case with a European dimension thecourt should set out quite explicitly, both in itsjudgment and in its order:i) the basis upon which, in accordance with the

relevant provisions of B2R, it is, as the casemay be, either accepting or rejectingjurisdiction;

ii) the basis upon which, in accordance withArticle 15, it either has or, as the case maybe, has not decided to exercise its powersunder Article 15.

36. “This will both demonstrate that the courthas actually addressed issues which, one fears, inthe past may sometimes have gone unnoticed,and also identify, so there is no room forargument, the precise basis upon which the



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court has proceeded. Both points, as it seems tome, are vital. Judges must be astute to raisethese points even if they have been overlookedby the parties. And where Article 17 [nojurisdiction] applies it is the responsibility of thejudge to ensure that the appropriate declarationis made.37. “As I have observed, the process envisagedby Article 55 works both ways. The Englishcourts must be assiduous in providing, speedilyand without reservation, information sought bythe Central Authority of another Member State.At the same time judges will wish to makeappropriate use of this channel ofcommunication to obtain information from theother Member State wherever this may assistthem in deciding a care case with a Europeandimension.”

7. The purpose of this paper is to explain what thePresident is driving at in Re E:

The context:

8. The sharp rise in cases: The number of casesinvolving children from other European countries hasrisen sharply in recent years. Significant numbers ofcases now involve such children.

9. Adoption: This must be seen in a furthercontext: the UK is unusual in Europe in permittingadoption – ie. the total severance of family tieswithout parental consent: Re B-S (Children) [2013]EWCA Civ 1146, para 19.

10. The tension between the UK and other B2RMember States:

a. Thus the outcome of care proceedings inEngland and Wales may be that a child whois a national of another European country isadopted by an English family in the teeth ofvigorous protests of the child’s non-Englishparents.

b. We need to recognise that the judicial andother State authorities in some countries,that are members of the European Union andparties to the B2R regime, may take a verydifferent view and may indeed look askanceat our whole approach to such cases; para156 Re E [ibid].

B2R – the Jurisdictional Tests –

Relevant Articles:11. How does the court accept/reject jurisdiction incases with a European Dimension?a. Article 8:“The child is habitually resident … at the time theCourt is seised ….”

In other words, “actual residence” is not enough.The overriding principle is “habitual residence.” Itfollows that the courts of England and Wales do nothave jurisdiction to make a care order merelybecause the child is present within England andWales. The starting point in every such case wherethere is a European dimension is therefore an enquiryas to whether the child is habitually resident.b. Article 12: If the court of a Member State isexercising jurisdiction on an application for divorce,legal separation or marriage annulment it shouldhave jurisdiction in:“.. any matter relating to parental responsibility6

connected with the application.”c. Article 13(1):“Where a child’s habitual residence cannot beestablished and jurisdiction cannot be determined onthe basis of Article 12, the courts of the MemberState where the child is present shall havejurisdiction.”d. Article 14: This provides a residual jurisdictionwhere no court of a Member State has jurisdictionpursuant to Articles 8 to 13 [jurisdiction is thendetermined in each Member State by the laws ofthat State. In the case of England and Wales,therefore, this would be on the basis of eitherhabitual residence or actual presence].e. Article 15: Even if the court has jurisdiction, thecourt must consider whether it exercises its powersunder Article 15 to request7 the court of anotherMember State to assume jurisdiction. Article 15arises if the following three-part test is satisfied:

i. The child has a particular connection withthat other State; as defined in Article 15(3).This is a question of fact. Nationality is merelyone gateway to establishing that the courthas jurisdiction to consider making an orderunder Article 15; nationality can never alonedetermine whether it should.

6 And see in this context the dicta of Lady Hale in ReA(Child)(AP) [2013] UKSC 60 at para 29.

7 The requesting state should communicate such requestat once through the offices of the International JudicialNetwork; see Re LM (A Child) [2013] EWHC 646. Atpara 39: “Where an Article 15 request is made, itwould be helpful, in my judgment, for the requestingState to communicate such a request at once throughthe offices of the International Judicial Network; furtheror alternatively, the court in the requesting State shouldinvite one of the parties in that case (in a public lawmatter, the public authority, I suggest) to drive alongthe request, and seek directions for the judicialdetermination of such a request, in the requestedState. These routes may prove to be more effective,and speedy, than the alternative of communicating therequest through the Central Authorities designated byBIIR.”


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ii. The other courts would be better placed tohear the case.8

iii. It is in the best interests of the child.9

Practice points and Article 15 will be covered in moredetail below, including more detailed explanation of“better placed” and “best interests.”f. Article 17: The English court should declare, ofits own motion, that it has no jurisdiction in thefollowing circumstances:

i. The English Court has no jurisdiction underB2R, and

ii. A court of another Member State hasjurisdiction under B2R.

g. This Article 17 provision is mandatory. It applieswhether or not there are extantproceedings in the courts of another Member State:See Re B (A Child) [2013] EWCA Civ 1434 para 85. Itis the responsibility of the Judge to ensure that theappropriate declaration is made: Re E [ibid].h. Article 2010: In an “urgent” case the court hasjurisdiction to make “provision, including protectivemeasures” until such time as the courts of theMember State having jurisdiction have taken themeasures it considers appropriate. Article 20contemplates short-term holding arrangements: Re B(A Child) [2013] EWCA Civ 1434 para 85.

Habitual residence – the legal test:

12. In determining questions of habitual residencethe courts will apply the principles explained in A vA11 [2013] UKSC 60, [2013] 3 WLR 76112.

13. That case is authority for the followingexplanation of “habitual residence”:

i) Habitual residence is a question of fact andnot a legal concept such as domicile. There isno legal rule akin to that whereby a child

8 Questions (ii) and (iii) above each involve an exercise inevaluation, to be undertaken in the light of all thecircumstances of the particular case and the particularchild.

9 But in answering these three questions set out in para11(e) above, it is not permissible for the court to enterinto a comparison of such matters as the competence,diligence, resources or efficacy of either the childprotection services or the courts of the other State.

10 This Article Is Particularly Relevant To Local AuthoritiesExercising A Protective Jurisdiction.

11 Full reference: A v A and another (Children: HabitualResidence) (Reunite International Child AbductionCentre and others intervening)

12 The appeal dealt only with the 4th child who had nevercome to England. The issue was whether he could besaid to be habitually resident in England and Wales.Four of the SCJs held that presence was a necessaryprecursor to habitual residence; ie. a child could not beintegrated into the social environment of a place towhich his primary carer had never taken him [LordHughes dissented on this issue]. Note that the decisionin A v. A is consistent with the decision of the CJEU inMercredi v. Chaffe [2012] Fam 22.

automatically takes the domicile of hisparents.

ii) It was the purpose of the Family Law Act1986 to adopt a concept which was thesame as that adopted in the Hague andEuropean Conventions. The Regulation mustalso be interpreted consistently with thoseConventions.

iii) The test adopted by the European Court is“the place which reflects some degree ofintegration13 by the child in a social andfamily environment” in the countryconcerned. This depends upon numerousfactors, including the reasons for the family’sstay in the country in question.

iv) It is now unlikely that that test wouldproduce any different results from thathitherto adopted in the English courts underthe 1986 Act and the Hague Child AbductionConvention.

v) The test adopted by the European Court ispreferable to that earlier adopted by theEnglish courts, being focussed on thesituation of the child, with the purposes andintentions of the parents being merelyrelevant factors14.

vi) The social and family environment of aninfant or young child is shared with those(whether parents or others) upon whom he isdependent. Hence it is necessary to assessthe integration of that person or persons inthe social and family environment of thecountry concerned.

vii) The essentially factual and individual natureof the inquiry should not be glossed withlegal concepts which would produce adifferent result from that which the factualinquiry would produce.

viii) As the Advocate General pointed out in paraAG4515 and the court confirmed in para 43of Proceedings brought by A, it is possiblethat a child may have no country of habitualresidence at a particular point in time.

14. As to the meaning of habitual residence, furtherclarification is provided by Re KL [infra] at paras 20 etseq:a. “….habitual residence is a question of fact which“should not be glossed with legal concepts whichwould produce a different result from that which thefactual inquiry would produce” ……(A v A, para 54).

13 In the Matter of LC [2014] UKSC1; “At all events whatour courts are now required to do is to search for someintegration on the part of the child in a social andfamily environment in the suggested state of habitualresidence.” Para 34

14 The test derived from R v Barnet London BoroughCouncil, ex p Shah should be abandoned whendeciding the habitual residence of a child.

15 Re A (Case C – 523/07) [2010] Fam 42 ECJ.



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b. In both Proceedings brought by A and Mercredi vChaffe, the operative part of thejudgment of the CJEU stated that the concept“corresponds to the place which reflects somedegree of integration by the child in a social andfamily environment”.c. In A the CJEU continued;“To that end, in particular the duration, regularity,conditions and reasons for the stay on the territoryof a member state and the family’s move to thatstate, the child’s nationality, the place and conditionsof attendance at school, linguistic knowledge andthe family and social relationships of the child in thatstate must be taken intoconsideration.”d. In Mercredi, the CJEU also pointed out, at para55, that:“An infant necessarily shares the social and familyenvironment of the circle of people on whom he orshe is dependent. Consequently, where . . . theinfant is in fact looked after by her mother, it isnecessary to assess the mother’s integration inher social and family environment. In that regard,the tests stated in the court’s case law, such as thereasons for the move by the child’s mother toanother member state, the languages known to themother or again her geographic and family originsmay become relevant.”e. There is no legal rule, akin to that in the law ofdomicile, that a child automatically takes thehabitual residence of his parents.f. The proposition that a young child in the solelawful custody of his mother will necessarily have thesame habitual residence as she does is to beregarded as a helpful generalisation of fact, whichwill usually but not invariably be true, rather than aproposition of law (see A v A, paras 44 and 73).g. Parental intent does play a part in establishing orchanging the habitual residence of a child: i.e.parental intent in relation to the reasons for a child’sleaving one country and going to stay in another16.h. Has the move from one country to another a

16 Re KL (A Child) [2013] UKSC 75 [the Texas case]:“Parental intention played a part in establishing orchanging the habitual residence of a child, but was oneof many factors relevant to whether there was asufficient degree of stability to amount to a change ofhabitual residence. For F to argue that, where a childwas permitted to live in a foreign country pursuant toan order that was under appeal, he could not acquirehabitual residence was seeking to place a legal gloss onthe factual concept. On the facts: M had come home;neither she nor K had perceived the return to the UK astemporary, irrespective of the pending appeal. K hadbecome integrated into a social and family environmentsince August 2011 and the judge had been entitled tofind him habitually resident here. Under the Family LawAct 1986 the court could exercise its inherentjurisdiction by virtue of K’s habitual residence orpresence in the UK. It was long established that theexistence of an order made by a competent foreigncourt was a relevant factor” See Family Law Week.

sufficient degree of stability to amount to a changeof habitual residence?i. There is no rule that a child is “habituallyresident” where the parent with custody is resident.j. The fact that the child’s residence is precariousmay prevent it from acquiring the necessary qualityof stability.

Practice Check-List For HabitualResidence:

15. These principles generate the following check-list:a. Is it contended that there was residence in aparticular jurisdiction? If yes:

i. What jurisdiction?ii. What are the facts relied on to advance that

contention?iii. What was the parental intent in the move to

the new jurisdiction?b. As to the residence so contended for:

i. The child’s age?ii. With whom does the child live?iii. If different from (ii) immediately above, upon

whom is the child dependent?iv. By whom is the child in fact looked after and

taken care of?v. Duration of residence?vi. Regularity?vii. Conditions and reasons for the stay on the

territory of the Member State?viii. Child’s nationality: [passport / identification

documents?]ix. The place and conditions of the child’s

attendance at school?x. Child’s and Mother’s linguistic knowledge?xi. Family and social relationships of the child in

that territory? [family networks, familyrelationships, clubs, associations, with whomdoes the child mix and in what language,with whom does his caring parent mix]?

xii. What are the geographic and family originsof the parent caring for the child, particularlyin the context of the location where the childis presently living?

xiii. Mother’s integration in other social andfamily environments: giving full details of“social” and “environment”17 [employment,housing, financial support, family support,relationships].

xiv. Explore in careful detail, the reasons for thefamily’s stay in the country in question.

17 An infant necessarily shares the social and familyenvironment of the circle of people on whom he or sheis dependent. Consequently, where a child is in factlooked after by her mother, it is necessary to assess themother’s integration in her social and familyenvironment: see Re A [2013] UKSC 60


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c. In the event of a move by the mother to anotherMember State:

i. What are the reasons for the move [i.e. thereason for a child leaving one country andgoing to stay in another]?

ii. What was the intention of the mother inmoving to such territory?

iii. Does mother have a child by anotherrelationship and if yes, where is that otherchild habitually resident? Does that impact onthe habitual residence of the child in questionand if yes, how?

iv. Does the move from one territory to anotherhave a sufficient degree of stability toamount to a change of habitual residence?18

v. NB: A child’s residence may change in theteeth of the opposition of one parent if this ispermitted by order of a court: para 25 Re KL19

d. In the context of an adolescent20 child alsoconsider:

i. what is the state of mind of the child duringthe period of residence with a parent21?

ii. where does he/she wish to live?iii. how does he/she view the future, e.g. school;iv. social networks / relationships, employment,

clubs etc?

18 Where a child goes lawfully to reside with a parent in astate in which that parent is habitually resident, it willbe highly unusual for that child not to acquire habitualresidence there too: see Family Law Week commentaryon In the Matter of LC (Children) [2014] UKSC 1; andsee para 37 per Lord Wilson [factual matrix: applicationfor summary return of 4 children to Spain].

19 In the matter of KL (A Child) [2013] UKSC 75: “On thefacts, the Supreme Court ordered the return of a child,aged 7 years, to Texas in the USA. This was an appealby a father to the Supreme Court in proceedings underthe Hague Convention and the Court’s inherentjurisdiction, concerning the approach to be taken bythe UK courts towards the return of a child brought tothe UK pursuant to a foreign order, which is lateroverturned on appeal”. [see Family Law Week].Baroness Hale delivered the sole judgment. She heldthat the child was habitually resident in the UK, butthat he should be returned under the court’s inherentjurisdiction.

20 See Re LC [2014] UKSC 1. Per Lord Wilson at para 1.21 Re LC: What can be relevant to whether an older child

shares her or his parent’s habitual residence is not thechild’s “wishes”, “views”, “intentions” or “decisions”,but her or his state of mind during the period ofresidence with that parent; see para [37]. Per FamilyLaw Week: “Lady Hale, with whom Lord Sumptionagrees, would hold that the question whether a child’sstate of mind [in the residence in question] is relevantto whether that child has acquired habitual residence inthe place he or she is living cannot be restricted toadolescent children [57]. In her view, the logic makingan adolescent’s state of mind relevant applies equallyto the younger children, although the answer to thefactual question may be different in their case.”Recognising the relevance of the state of mind of achild younger than adolescence dovetails with childrenseeing a judge in chambers as young as 7 years of age.

v. If the parents are separated, in whosehome does the child primarily live? If he/she lives in two homes22, what is theduration of stay in each, what are thefamily and social relationships vis a viseach?

vi. Did the child leave his home country withthe intention of emigrating? With whatplans?23

A Practical Working Example As To“Habitual Residence”:

16. In Kent County Council v. G and others. [2014]EWHC 604 (Fam) Theis J found a child to behabitually resident in Latvia in the followingcircumstances:a. The child’s connections with his social and familyenvironment in Latvia:

i. both his parents were Latvian,ii. until January 2013 that was the only

jurisdiction he had resided in,iii. it was where his extended family lived,iv. he went to school there,v. his and his parents’ first language was

Russian,vi. the father did not consent or acquiesce to his

removal to this jurisdiction and;vii. the father undoubtedly remained habitually

resident in Latvia.b. There was very little evidence, if any, that thechild became integrated into a social or familyenvironment in England due to:

i. the relatively short period of time that he hadbeen attending school here,

ii. the circumstances that the mother and herthen partner found themselves in,

iii. and the lack of any kind of link the motherhad in relation to the circumstances in whichthey lived apart from her relationship withher partner.

22 Re LC at paras 62 and 63: “But once a child leaves thefamily environment and goes to school, his social worldwidens and there are more factors to be taken intoaccount. Furthermore, where parents are separated,there may well be two possible homes in which thechildren can live and the children will be well aware ofthis. This may well affect the degree of their integrationin a new environment.”

23 Re LC at paras 62 and 63: “But once a child leaves thefamily environment and goes to school, his social worldwidens and there are more factors to be taken intoaccount. Furthermore, where parents are separated,there may well be two possible homes in which thechildren can live and the children will be well aware ofthis. This may well affect the degree of their integrationin a new environment.”



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Looking at the operation of Article15 in detail:

17. Who may request? The jurisdictional test set outin B2R24 is the same regardless of whether theapplication for a request originates from:

a. A party,b. The court of its own motion orc. The court of another Member State with

which the child has a particular connection25.d. Similarly, the same test applies whether the

request is made by a court or by a party atthe invitation of the court.

18. Article 15(1) provides:“By way of exception, the courts of a Member Statehaving jurisdiction as to the substance of the mattermay, if they consider that a court of another MemberState, with which the child has a particularconnection, would be better placed to hear the case,or a specific part thereof, and where this is in thebest interests of the child:

(a) stay the case or the part thereof in questionand invite the parties to introduce a requestbefore the court of that other member Statein accordance with paragraph 4; or

(b) request a court of another Member State toassume jurisdiction in accordance withparagraph 5.”

19. Thus the three questions to be considered underArt 15(1) are {see AB v. JLB [2009] 1 FLR 517 at [35]}are:i) First, it must determine whether the child has,within the meaning of Art 15(3), ‘a particularconnection26’ with the relevant other Member State.Given the various matters set out in Art 15(3) asbearing on this question, this is, in essence, a simplequestion of fact. For example, is the other MemberState the former habitual residence of the child {seeArt 15(3) (b)) or the place of the child’s nationality(see Art 15(3) (c))?ii) Secondly, it must determine whether the court ofthat other Member State ‘would be better placed tohear the case, or a specific part thereof’.

24 Article 15 applies to both public and private lawproceedings; see Re LM (A Child) [2013] EWHC 646. Inthat case, an Irish Court, by consent, made a requestpursuant to Article 15(1)(b) of B2R that the High Courtof England and Wales accept jurisdiction in relation tothe proceedings concerning the placement of LM intopublic care.

25 i.e. The courts of a Member State without jurisdictioncould make a request to the courts of the MemberState with jurisdiction, through its Central Authority, toexercise its power under Article 15.

26 “Particular connection” is expanded upon in Article15(3): (i) habitual residence after the court was seised;(ii) former residual residence; (iii) place of child’snationality; (iv) habitual residence of holder of PR; (v)where property of child is located.

This involves an exercise in evaluation27, to beundertaken in the light of all the circumstances ofthe particular case. This is intimately connected withthe question of the best interests of the child.Relevant factors as to this issue include:

a) The availability of witnesses of fact;b) Whether assessments can be conducted and

if so by whom [i.e. whether an assessor willhave to travel to another jurisdiction toundertake an assessment and whether that isa lawful and/or professionally appropriatecourse],

c) whether one court’s knowledge of the caseprovides an advantage, for example byjudicial continuity between fact finding andevaluation,

d) whether evidence of fact or opinion wouldbe unavailable in one jurisdiction or another,and so on.

iii) Thirdly, it must determine if a transfer to theother court ‘is in the best interests28 of the child.’

• This again involves an evaluation undertakenin the light of all the circumstances of theparticular child but is limited in its extent tothe issue of forum.

• i.e. the best interests question asked by Art15(1) is whenever it is in the child’s bestinterests for the case to be determined (orthe specific part of the case to bedetermined) in another jurisdiction.i.e.whether it is in the child’s best interestsfor a case to be determined in this countryrather than elsewhere.29

• The issue turns on the sort of considerationswhich come into play when deciding uponthe most appropriate forum. Best interestsmeans just that. The autonomous meaningshould not be limited or enlarged upon bythe domestic concept of paramountcy or anyother reference to national law.

27 In Re LM (A Child) [2013] EWHC 646 (Fam) it was heldthat the English Court was better placed to hear anyfurther proceedings where 3 children were alreadysubject to public law final orders in England, andMother had gone to Ireland for the birth of LM to avoidthe removal of the baby by the relevant local authorityin England.

28 In Re LM (A Child) [2013] EWHC 646, Cobb J held thatthe role of the court of the “requested state” shouldbe limited to considering the “best interests” havingregard to “the specific circumstances of the case.” Seein particular paras 35 and 36. The judgment of Cobb Jwas endorsed by Sir James Munby P in HJ (A Child)[2013] EWHC 1867. As to the practical steps to betaken in such circumstances, see Cobb J at [39]-[42]and [70]-[73].

29 This clearly reflects the inter-action of “best interests”and “habitual residence.”


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Practice points in relation toArticle 15:

20. An exception: The Article 15 power is, as isstated on its face, an exception to the general rule ofjurisdiction in Art 8 which is grounded in the habitualresidence of the child. Exceptions to generalprinciples should be narrowly interpreted: Re M30

[ibid] at para 50.

21. A power – not a steer: Article 15 contemplatesthe transfer of a specific part ofproceedings where that is appropriate. The power todo so does not inform the question whether itshould be exercised and the relative merits anddemerits of such a possibility.

22. A positive answer to the three questions:a. The power under Article 15 may only be exercisedwhen all the above three questions can be answeredin the affirmative.b. The corollary of that principle is that a court inEngland and Wales cannot divest itself of jurisdictionin respect of a child who is habitually resident inEngland and Wales simply because he or she is anational of another Member State or where one ormore of the Art 15(1) questions cannot be answeredaffirmatively.

23. A summary process: Article 15 contemplates arelatively simple and straight forward process31.Unnecessary satellite litigation in such cases is agreat evil, see Re M at para 54. What is required is asummary process. Proper regard for the requirementsof B2R and a proper adherence to the essentialphilosophy underlying it, requires an appropriatelysummary process.

24. Succinct submissions: Too ready a willingnesson the part of the court to go into the full merits ofthe case can only be destructive of the systemenshrined in B2R and lead to the protracted andcostly battles over jurisdiction which it is the verypurpose of B2R to avoid. Submissions should bemeasured in hours and not days.

30 This was an appeal concerning a child whose parentswent to live in the Czech Republic following on from asplit hearing/finding-of-fact.

31 In Re LM (A Child) [2013] EWHC 646, Cobb J held thatThe role of the court of the requested State appears, byArticle 15(5), to be limited to a consideration of “bestinterests” having regard to “the specific circumstancesof the case”; the “best interests” evaluation willnecessarily not be as profound as on a full hearing ofan application for substantive relief with the benefit ofthe full evidence.

Securing the smooth operation ofArticle 15 – the inter-action withArticle 5532:

25. To facilitate the smooth operation particularly ofArticle 15 cases, Article 55 is relevant.26. In this context, Sir James Munby P said in Re E:

“32. Before parting from B2R, I must drawattention to Article 55. Headed “Cooperation oncases specific to parental responsibility”, itprovides, so far as relevant for present purposes,that:“The central authorities shall, upon request froma central authority of another Member State orfrom a holder of parental responsibility,cooperate on specific cases to achieve thepurposes of this Regulation. To this end, theyshall, acting directly or through public authoritiesor other bodies, take allappropriate steps in accordance with the law ofthat Member State in matters of personal dataprotection to:(a) collect and exchange information:

(i) on the situation of the child;(ii) on any procedures under way; or(iii) on decisions taken concerning the child;

…(c) facilitate communications between courts, inparticular for the application of … Article 15; …”This process is plainly intended to work bothways.”33

27. Sir James Munby P went on to say in para 37:“As I have observed, the process envisaged byArticle 55 works both ways. The English courtsmust be assiduous in providing, speedily andwithout reservation, information sought34 by theCentral Authority of another Member State. Atthe same time judges will wish to makeappropriate use of this channel ofcommunication to obtain information from theother Member State wherever this may assistthem in deciding a care case with a Europeandimension.”

32 Co-operation between Central Authorities, actingdirectly or through public authorities).

33 E.g. if a child is a British national.34 The court permitted the local authority to disclose to

the Slovakian authorities various orders anddocuments, a transcript of a particular hearing, andalso gave permission to the Head of the ConsularSection to provide an account of the hearing to theSlovakian Central Authority.



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28. As to how the Article 55 provisions operated inRe E, Sir James Munby P said:

“The Article 55 mechanism worked smoothly andeffectively, facilitating in the particular case theinter-State cooperation and assistance which is sodesirable in every case.”

29. What if a party cannot be traced? This was thesituation in Re B [2014] EWCA Civ 375 when afather in France was not traced.35

Practice Check-List for Cases with aEuropean Dimension:30. Timing:a. Social workers and Cafcass Officers in particular:If you think there may be a European Dimension,flag this up immediately with your line manager.b. Issue, allocation, first CMH36: During the processof issue, allocation and most importantly – at thefirst Case Management Hearing – practitioners mustbe alert to raise jurisdiction issues.

31. Habitual residence: If there is a Europeandimension, where is the relevant child habituallyresident?

32. Jurisdiction – which Article?a. Does the court accept jurisdiction? If yes, onwhat basis – by reference to which Article?b. Does the court reject jurisdiction – if yes, on whatbasis – by reference to which Article?c. If the position on jurisdiction is not clear:

i. Why not?ii. Which Article is to be relied upon?

33. Does the Court exercise its powers underArticle 15?

a. If yes, on what basis?b. If no, on what basis?

34. The responsibility of the judiciary: judges must beastute to raise these points even if they have beenoverlooked by the parties.

35 Per Black LJ: “Another helpful resource might havebeen co-operation between the central authorities ofMember States under Article 55 of BIIR. The centralauthority for England and Wales for the purposes ofBIIR is the International Child Abduction and ContactUnit which is based within the office of the OfficialSolicitor and Public Trustee.”

36 The court needs to grapple with jurisdictional issues assoon as possible: Kent County Council v. G and others.[2014] EWHC 604 (Fam).

35. Vienna Convention: The Check-list is:a. Openness etc: There must be transparency andopenness as between English family courts and theconsular and other authorities of a foreign state.b. AJA: Do not shelter behind s. 12 AJA 1960c. No obstacle: Do not [unless exceptionally] imposeor permit any obstacle to freecommunication and access between a party who is aforeign national and the consular authorities of therelevant foreign state.d. No injunction: Do not make an injunctive orderwhich might interfere with such communication.e. When sitting in private37: Whenever the court issitting in private it should normally accede to anyrequest, whether from the foreign national or fromthe consular authorities of the relevant foreign state,for:

i. permission for an accredited consular officialto be present at the hearing as an observer ina non-participatory capacity; and/or

ii. permission for an accredited consular officialto obtain a transcript of the hearing, a copyof the order and copies of other relevantdocuments.38

f. Whenever a party, whether an adult or the child,who is a foreign national39:

i. is represented in the proceedings by aguardian, guardian ad litem or litigationfriend;

ii. and/or is detained,the court should ascertain whether that fact hasbeen brought to the attention of the relevantconsular officials and, if it has not, the court shouldnormally do so itself without delay.g. If exception to general rule: if in any particularcase, the court is minded to adopt a different ormore restrictive approach it is vital that:

i. the court hears submissions before coming toa decision, and

ii. that it then sets out quite explicitly, both in itsjudgment and in its order, the reasons for itsdecision.

37 Re E [ibid] at para 4738 See footnote 27.39 Re E para 47.


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Dispute Resolution Advisory Group

Dispute Resolution Advisory GroupMOJ survey on hearing the voice of the Child

Dr Julia BrophyPrincipal Researcher – Family Justice, Co-Chair IAC

Evidence from the InterdisciplinaryAlliance for Children (IAC)The Interdisciplinary Alliance for Children (IAC)consists of some 20 leading children and familyorganisations. It meets about three times a year andin 2015 met to discuss the MOJ survey on issuespertaining to children/young people where parentsare in dispute about their future care. The survey wasintended to support the work of the Voice of theChild Advisory Group (see postscript below).

Discussions at the IAC meeting revealed a number ofconcerns about the questions and the frameworkindicated in the survey which among other thingsmade the survey a difficult document for children’sorganisations to complete. In particular questionsperpetuated an underlying and long standingassumption that any independent voice children arepermitted to express will continue to be at thediscretion of parents and others – rather than as afree standing right.

The Alliance in its response reminded Governmentthat children and young people have a right to beconsulted both about proposed policy changes inprivate and public law issues, and about their wishesand feelings in individual cases where their care and/or welfare is in question. This right applies to bothjudicial and administrative procedures and isencapsulated in Article 12 of the UNCRC.

Our views on aspects of domestic policy werereiterated by the Children’s Commissioner for

England before the Joint Committee on HumanRights (House of Commons, Feb 2015). TheCommissioner reiterated that children’s rights are notan optional extra. It is thus important that civilservants (and others) understand UN conventionrights, take them seriously and feel confident inapplying them to policy forums. They should ensureConvention rights are incorporated into the workundertaken for ministers and governmentdepartments; that is the mark of a civilized society.

In its response therefore the Alliance set out in detailthe following concerns:

1 Framework for the survey: voice of the child• The survey does not reflect our duties and

obligations to children and young peopleunder the UNCRC and especially Article 12.Without that overarching framework, surveyquestions are likely to result in an array offragmented and individualistic approaches.

• While there may be an argument for amapping exercise of existing ‘child inclusive’and ‘child focused’ mediation services as tohow each is practised and the principles onwhich it is based, the survey and thus certainquestions should start from the premise ofwhat is expected of professionals in the UKwhen working with children whose care iscontested. Where the future arrangementsfor children are at issue – whether in ajudicial or other setting (e.g. out of courtmediation service) measures to facilitate andunderstand the voice of the child should bethe starting point; the child’s voice should notbe an ‘added extra’ tacked on to existingprocedures. Rather, the welfare of the childmust be paramount and facilitating the voiceof the child is thus a key starting point.

• It would be interesting to know what isprovided for children whose parents attendmediation services but a key issue for bothdomestic concerns and convention objectivesis the content of information made availableto children regarding their rights and theirability to have a real voice in the process.



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Equally important for all service users (newand potential) is information on the standardsof the service offered, the protocols followedwith children and the frameworks andsafeguards all services will provide for them– as of right. This is particularly importantgiven substantial research evidence thatdemonstrates parents often act as gatekeepersto the provision of information and directservices to children – making it difficult forchildren to have any independent agency. Itshould also be noted that children repeatedlytell us that parents in conflict are often unableto hold honest conversations with theirchildren or to put their children’s interests first.

2 Implications for common standards ofpractice when working directly with children inor out of court

• As indicated above, the standards applied inwhat are termed ‘child inclusive’ or ’childfocused’ services (not the same) should eachhave a coherent framework based oncontemporary domestic legislation, UNconventions and best guidance and practice.

• In their journey towards a decision abouttheir care, children/young people mayexperience various processes (out of courtmediation, in-court dispute resolution – andfor a very small percentage – separaterepresentation in proceedings under r16.4 ofthe FPR 2010).

• In all these settings, the child’s voice andrespect for their wishes and feelings must beapplied consistently by professionals. That isthe strength, and advantage, of developing acommon standard – dictated by the child’srights and which prioritizes their welfare. Italso provides parents with a commonobjective of doing what is in their child’s bestinterests; that can help resolve disputes. Thisapproach – as dictated by Article 12 andGeneral Comment 12 of the UNCRC – muststart at the beginning of any process thusgaining a child’s confidence and trust.

• It should also be noted that the currentfunding arrangements can act as adisincentive to a mediation process thatincludes children. The survey needs toaddress that issue in order to assist policydevelopment.

3 Issues of children’s privacy• Children’s rights to privacy have become a

complex and contentious field. The surveyquestion indicates little understanding of thatcomplexity and current rules. It cannot for

example be solely down to the individualmediator to determine the degree of privacythey offer children and young people.

• Conversations about privacy and disclosuremust reflect professional and ethicalresponsibilities to children as these arerequired for clinical practice and courtproceedings concerned with their care.Practitioners must explain to children thesafeguarding procedures that will be followedif there are any indications of actual orpotential harm to a child.

• The parameters of privileged conversationsmust also be explained; as with adultsmediators must explain to children/youngpeople that what they say to the mediatormay not be repeated or relied upon shouldthe case go to court. This is a complex fieldand more so if the UNCRC is not engaged indeveloping a framework for practice: data onif, when and how mediators explain this issueto children will be important.

• Timing is also a key issue: mediators must tellyoung people about both their rights and theparameters of privileged conversations beforethe detail of parental disputes and the viewsof children are explored so that the latter canmake real informed choices aboutparticipation. Their contribution should notbe subject to pressure or influence by parentsor professionals. Research with young peoplewhere their care is in dispute demonstratesthat they require professionals to be honest,timely and ethical in discussions about theirrights to privacy. They say this issue must beaddressed with children at the outset so thatthey can make real choices regardingparticipation – any other approach byprofessionals would be unethical. Their viewsare supported by Article 12 and GeneralComment 12, UNCRC.

4 Child based data requirements frommediation services: types and utility ofinformation for developing child focusedservices

• In order for policy to move forward and forpractices to improve, it is vital we haveaccurate information – not simply about thenumber of children seen in mediation settingsbut by service category (i.e. ‘child inclusive’ or‘child focused’) and also their profile (age,gender, ethnicity, language, siblings,education, health etc.).

• Child profile data should be an additionalrequirement to that of recording accurately


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children’s views, and wishes and feelingsabout their current and future carearrangements and the outcomes for childrenof mediated arrangements.

• ‘Child inclusive’ mediation presents challengesto the theory and practice of mediation inwhich a core principle has been that ofimpartiality on the part of the mediator (i.e.not taking sides with either parent) and whereachieving an agreed settlement betweenfrequently hostile parents has been theprimary goal. A focus on the welfare, rightsand voice of the child will have an impact onthe practice of mediation: it cannot beassumed that attention to these requirementscan simply be ‘tacked-on’ to services in a beliefthat it will not have an impact on the practiceand principles of the service.

• Mediation services must collect consistentand compatible data on whether and howservices further the voice of an otherwiselargely silent cohort of children.

• Ascertaining the voice of the child is one partof the exercise; the other part is interpretingwhat is said. This is a complex field and thelatter exercise is not one that falls within theremit of mediation. There are concerns forchildren in highly contested disputes whereattention should be given to issues of parentalpressure and coercion of children – and wherethus a focus on interpretation of views may benecessary. This latter exercise is one wherethere is considerable clinical and welfareexpertise; the Alliance is concerned about anyassumption of comparable expertise oradditional expectation of mediation services– and thus whether/how such children will beidentified and referred on.

5 Other Comments• The Alliance starts with the voice of the child

and their convention rights. That frameworkprovides an over arching philosophy: itdictates key policy questions to be asked ofservices if we are to improve the realexperiences of children where there aredisputes about their care and wellbeing. Italso provides a coherent framework forexploring and assessing practices both withinand outside the legal arena (i.e. preproceedings in public law and in mediationservices in private law).

Voice of the Child: PostscriptThe Voice of the Child: Dispute Resolution AdvisoryGroup was established in November 2014 following

the Government’s stated commitment to childrenhaving a greater voice before decisions are madeabout their future in July 2014.

The Advisory Group primarily focused on familymediation when considering how children could beinvolved in dispute resolution, with the aim ofensuring their voices are heard in all private lawproceedings which impact on them. The AdvisoryGroup was also tasked with promoting child inclusivepractices.Recommendations in its Final Report fall into fivemain groups, relating to:

• defining and delivering child inclusivepractices (recommendations 1-9)

• private ordering and ethical issues(recommendations 10- 21)

• monitoring of and accountability for childinclusive practice (recommendations 22-24)

• the provision of appropriate information andsupport for children and young people(recommendations 25-32)

• changes in the dispute resolution culture(recommendations 33-34)

Three recommendations are of particular interest:

• A presumption that all children aged 10 andabove should be offered the opportunity toattend mediation, or be involved in otherdispute resolution process, if they wish. Thisshould be a process, rather than attendanceat a one off meeting.

• There should be high quality, age appropriateinformation available for children and youngpeople experiencing parental separation, vialeaflets and websites.

• There should be a dedicated website for allchildren and young people at all stages oftheir parental separation journey, withinformation and online tools.

In line with Article 12 of the UNCRC, the reportconcluded by suggesting that there should be apresumption in law that hearing the voice of thechild is the starting point for all dispute resolutionprocesses. This was however rejected by Governmentin favour of a ‘non-legal presumption’.

For the Full report of the VOC Advisory Group see– https://www.gov.uk/government/publications/voice-of-the-child-government-response-to-dispute-resolution-advisory-group-report

For the Government’s Response at March 2015 – seehttps://www.gov.uk/government/uploads/system/uploads/attachment_data/file/417152/government-response-to-voice-of-the-child-advisory-group.pdf



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Notice of Annual General Meeting

To be held at the 26th National Annual Conference at theMidland Hotel, Peter Street, Manchester M60 2DS

Thursday 19th November 2015 at 15.00

Agenda

1. Approval of the minutes of AGM 13th November 2014

2. Matters arising

3. Election of Officers and Executive Committee Members

4. To consider the Accounts of the Association and decide the subscription levels forthe forthcoming year

5. To consider the plans for the forthcoming year

6. To consider motions and any other business proposed and seconded by two fullmembers and notified to the secretary prior to AGM

8. To consider any matter of an urgent nature


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Family justice, children’s privacy and options for accountability in public services

Family justice, children’s privacy andoptions for accountability in publicservicesAn update

Dr Julia BrophyPrincipal Researcher – Family Justice

Following a growing body of consultations andresearch about the views of children and youngpeople regarding media access to childrencases, and in consultation with the President ofthe Family Division, two further projects havebeen undertaken with regard to issues ofchildren’s privacy and options for transparencyand accountability in family justice. One project– described at (a) below – focuses on judgmentsconcerning children and published on the Bailiiwebsite. This is completed, the report is withthe President, and it will be published inOctober. The other project explores issues ofinspection and accountability in public services– including family courts – and will report inDecember 2015.

(a) Judgments on BAILII: potential for ‘jigsawidentification’ and children’s privacyconcerns

There are differing views as to whether children canbe identified from information contained inpublished judgments: young people felt that theycould, the President was doubtful and felt thatchildren’s concerns should be explored in moredetail. Moreover, the President felt that the bestpeople to undertake that exercise were youngpeople themselves: they are the experts having gonethrough proceedings; they live at the sharp end ofyouth culture and potentially face a lifetime in whichthe social networking culture will be a significantpart, if not dominate their lives. They were also seenas the best candidates for this exercise because theyare more ‘social media savvy’ than most adults.

NYAS young people agreed and in an endeavour toassist the President to find a productive way forward,expressed a desire to explore this project in moredetail. In November 2014, during a further meeting itwas agreed they would explore how this work mightbe undertaken – with the proviso that it would taketime and funds. The President readily agreed to giveyoung people the time they needed. Because time

was of the essence in terms of the larger agenda inthis field, the ALC executive committee subsequentlyagreed to fund a major part of this work.

A key concern of young people was the ability ofpeople, reading newspaper reports and/or publishedjudgments and with some ‘local knowledge’, toidentify the children in judgments. A pilot exercisetherefore ‘matched’ judgments in terms ofgeographical location to a sample of young peopleundertaking the exercise and reading and analysingthe information on children in judgments. Furthercriteria were also developed for an additional sampleof judgments along with a schedule for recordinginformation from judgments and young people’sviews.

The exercise involved a total of nine young peoplebetween the ages of 16 and 25 years; in two oneday sittings they read and analysed 21 judgments.The resultant report has now gone to the Presidentand young people await a further meeting date fromhim to discuss the results and views about aproductive way forward given findings andrecommendations.

It is fair to say that the report makes some worryingreading: both in terms of practices in judicialanonymisation of judgments and with regard to thecapacity for jigsaw identification of children andfamilies – but also with regard to the willingness ofsome parents/other family members to placeinformation from cases on social networking sitessuch as Facebook.

The report provides a graphics tool to demonstratehow jigsaw identification can be achieved. It alsoidentifies some errors in the anonymisation processand demonstrates that even with the best intentionscertain details can facilitate the identification ofsome children. The report recommends a number ofways forward, for example in the presentation ofcertain categories of information in judgments (e.g.details of sexual abuse) and identifies where andhow further work would assist policy makers infinding the best way forward at this point.



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The report will be available on the ALC website –along with a free standing executive summary– towards the end of October; members will benotified of the release date. It is also planned topublish the findings in Family Law.

(b) Holding public bodies to account: alternativemodels to that of the media as ‘watchdog’in family justice children cases

The other key area identified so far as movingforward in this field is concerned is whether, inpractice, there might be alternative models to that ofthe media as a ‘watchdog’ in children cases.Research evidence to date demonstrates that youngpeople did not think current media could or shouldfulfil that role: some adults and practitioners infamily justice are at best doubtful that thecontemporary media can achieve the role set out forthem. Indeed some journalists have argued that it isnot their job to ‘sell’ or save the reputation of familycourts – or indeed to educate the public. This ishowever a complex field as arguments about themerits and balancing of Article 10 and Articles 6 and8, ECHR are rehearsed.

Young people argue that there are alternativemodels for making the work of family courts moreaccessible and for making the work of judges moreaccountable – and arguably some models havepotential to be more successful overall – both interms of inspection and accountability of the services– than ad hoc reporting of cases by journalists.

In meeting the President, young people posed someproblems (already rehearsed in research); thePresident in turn posed a series of questionsregarding other models/options that might exist andconcerns as to their limitations. Questions wereraised about what young people felt should happenwhere, for example, a judge identifies serious failuresin professional/agency practice; and what the publicneeds to know about how judges decide cases andhow courts hold public bodies and individuals toaccount for their work and actions in children cases.Both parties felt further exploratory work on thisissue would be helpful.

The time span however – at least for externalresearch funding – was again extremely limited. Thisissue was therefore considered by the ALC executiveat their January 2015 meeting and some limitedfunding agreed so that the review could start in theearly spring and run alongside the Bailii exercise (seeabove).

We are midway through this exploratory work –which sets out existing avenues for accountability inpublic law children cases and reviews models foraccountability in other public services such as healthand adult social care. It is anticipated this work willbe completed towards the end of November/earlyDecember. The report will initially also go to thePresident and the ALC will alert members when it isavailable. We are also exploring the possibility of amultidisciplinary seminar to present and discuss bothreports.

Twitter – The ALC are now on Twitter.Visit our website www.alc.org.uk to view ourTwitter feed or follow us on Twitter to keepup to date with the ALC’s work.


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Relocation to the Sunshine

Relocation to the SunshineJersey Conference

Barbara Corbett5th October 2015

This year’s ALC/Hanson Renouf child lawconference benefited from a different locationfrom recent years, back to the venue of the firstever Jersey conference in 2008 at the Hotel deFrance. This proved to be a great success as thecoffee breaks and lunchtimes could be enjoyedoutside on the sun terrace and there wasindeed sun, lots of it, making it difficult tobelieve that it was after all October. In fact oneeminent QC snuck away to swim in the sea,returning refreshed during the early afternoonsession.

The theme of the conference this year was ChildRelocation. This of course spans both public andprivate law and is an element of many family lawcases, especially as the world becomes smaller. Withso many international marriages and children fromother countries increasingly involved in careproceedings all children lawyers need to haveknowledge of relocation matters. The infamous JohnVater QC was originally down to chair theconference and through his good offices (or armtwisting perhaps) we were fortunate enough tosecure Mr Justice Baker as our keynote speaker.Unfortunately John’s back did some unhelpful thingsto him shortly before the conference was due tostart so he had to dip out, but not before recruitingJane Crowley QC, of the ALC committee to step intothe breach to chair the conference. Jane did afantastic job, ensuring that everyone kept to timeand was properly introduced and thanked, and shealso managed to present her own paper too, on thechild’s perspective.

Deborah Eaton QC began proceedings with a veryclear and up to date digest of the case law relatingto child relocation following on from Payne v Payne1

up to Re F2, a case only concluded in August thisyear, which has (perhaps) altered the relocationlandscape, putting the emphasis firmly on thewelfare of the child. This was followed by questions,

1 [2001] 1 FLR 10522 [2015] EWCA Civ 882

especially around the use of mediation in such casesand a short presentation on Jersey law.

The keynote speech was again very topical, referringto recent case law involving the adoption of childrenwho are nationals of other countries which generallyhave a different attitude towards non-consensualadoption. This very serious subject matter wasfollowed by a light-hearted look at a mediation of aprivate law relocation case with Suzanne Kingstonvaliantly mediating a case between characters playedbeautifully (and completely over the top) by DavidLister and Claire Yorke.

Lunch on the terrace in the sun was followed by amock trial by members of 1 Garden Court chambers,Janet Bazley, Clare Heppenstall and Richard Jonesproviding a lively and informative session on habitualresidence.

Edward Devereux was billed to speak oninternational adoption but threw his notes away to



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regale us with his particular insight into relocationcases and his experiences, leading nicely into WilliamSimmonds’ exposition of adoption in public lawcases with a Guernsey element, providing an insightinto the origins of Guernsey law and some of thedifficulties of grafting modern adoption procedureonto the sometimes incompatible laws in Englandand Wales.

After tea and Jane Crowley’s interesting session fromthe child’s perspective, Ranjit Mann concludedproceedings with perhaps the most illuminating talkof all. Ranjit, an experienced independent socialworker, told us of some of the difficulties and

experiences he has had in preparing reports oninternational placements of children with familymembers in all corners of the world. His account ofsome of the families he has visited in war torn partsof the globe were a stark reminder that so manychildren live in dangerous circumstances but it alsooffered the satisfaction that there are many lovingfamilies in many far flung places who are able andwilling to take in children from their wider family.

All in all the ALC/Hanson Renouf conference 2015was an event to remember. The next conference willbe on Friday 7th October 2016. We hope to see youthere.


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Family Justice Reforms four years on

Family Justice Reforms four years on

Dr Julia BrophyPrincipal Researcher – Family Justice

Most published comment and in-house researchon local authority handling of public lawproceedings following the Family JusticeReview (FJR) and reforms under the Childrenand Families Act 2014 have focused on theability of practices to reduce delay and the useof clinical expertise (which is assumed to be amajor source of delay), and achieve completionof proceedings within 26 weeks. While the useof experts has not been established as the keysource of delay in cases (e.g. South London CareProceedings Project (2015) Report by CaseManagers, Appendix 6,) a reduction in the useof ‘experts’ per se is generally seen as a keyachievement.

Notwithstanding a need for improvements in thetiming and quality of some local authorityevidence (and achievements in that sphere are tobe congratulated) and in better court control overthe use of some experts, some serious gaps ininformation remain in this field. There is a lack ofrobust data on the profile of children and parentsin proceedings and thus indications of a need forsome clinical support in cases. In its final reportthe Family Justice Review (2011)(FJR) rightlyidentified a paucity of robust longitudinal data oncare proceedings. Notwithstanding a number ofindependent research projects on s.31 proceedings(from 1995 – 2009) and a constant call fromacademics for government to support thecollection of independent longitudinal data, theReview noted its astonishment at the system’s lackof robust data coupled with poor/outdated ITsystems. These systems are incapable of ‘talking’to each other as vulnerable children and familiesare ‘processed’ through the system (see FJR,paragraphs 2.20 – 2.22). In particular the Reviewhighlighted a need for government to ensure thegeneration of management information (Paras2.41; 2.47; 3.141); it also proposed an integratedIT system along with robust performanceinformation to ensure improvements are availableto all parts of the system (Para 2.99) – this needwas also highlighted by the Justice Select

Committee. In addition, the FJR (Para 91) alsorecommended the (now) Legal Aid Agency shouldroutinely collate data on the use of clinicalexpertise – by case, discipline, cost and any otherrelevant factor – and by court and area.

In practice however, post 2009, hard data on the useof experts and against the profile of children andfamilies in proceedings, remains unavailable.Anecdotally, professionals have tended to assumethat Cafcass (via its Case Management System– ‘CMS’) holds the best data on cases (compared, forexample, with MOJ Family Courts statistics). It doeshold information for every case and is a populationwide dataset but the scope and quality of recordsheld and the variables collected indicate it cannotmatch hard data from earlier independent researchon the profile of children and parents and thusprovide any linkage with likely need for/use of clinicalexpertise.

Key findings from independent research demonstratethe complexity of cases in terms of types of allegedmaltreatment of children and range of allegations/concerns leading to failures of parenting. These datagave a base line on the profile of parents andrecurrence of factors such as serious mental healthproblems, substance abuse, domestic abuse, learningdisability, chaotic lifestyles, accommodationproblems, inability/failures to protect children, alongwith the range of maltreatments of children and thetypes of clinical expertise sought in cases (e.g.Brophy et al 1999; 2003; 2006; 2009; 2012; Harwin2003; Hunt and Macleod 1999; Masson et al 2008).

Thus for example we know that in s.31 proceedingsover 40% of parents are likely to have mental healthproblems; we also know that, for most, some adultpsychiatric evidence is necessary (by a treatingconsultant and/or an expert for proceedings) in orderto supply courts and parties with a diagnosis andprognosis; a child and family psychiatrist may assessa parent’s clinical history and advise on theimplications for parenting. For the most part,available evidence indicated local authorities hadlittle/no clinical input pre proceedings; the same waslargely true for parents with a learning disability.Thus access to appropriate clinical assessment and



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possibly health support usually followed proceedings– at least for this cohort.

Trying to get a real handle, nationally, on the numberof parents in proceedings with such problems is nowfraught with problems. Cafcass does not record suchinformation on its CMS; information might appear(in notes made manually) but that is not compulsoryand, leaving aside data entry problems, the dataitself is unreliable. A requirement to complete a‘diversity monitoring form’ (not itself ever an‘answer’ to this issue) ended in April 2010 as it wasnot required in order to fulfil the statutory functionof Cafcass under the (then new) OperatingFramework.

In other words, the lack of robust quantitative dataon allegations, evidential needs and use of clinicalexpertise against the (health and social/economic)profile of parents and children – as indentified in theFJR – continues. There is little point in trying to‘mine’ existing databases/reports because certain keyvariables (in the profile of children and parents anduse/non use of clinical expertise) are not collected.We have no hard data on local authority or courtdecision making about use or refusals of leave toseek clinical expertise: we have anecdotal evidencewhere parties (including the local authority) agreethey need expert input but where this was refusedby the court.

It is not sufficient for judges – or others – to arguethat they do not think there are injustices in theirown practices while we lack data based on aresearch methodology that actively seeks contraindicators in samples. For one thing it opens judgesand others to the allegation: ‘well they would saythat wouldn’t they’. Expert knowledge is not aunitary category – it is dynamic and changing andlike all scientific endeavour, that is its benefit. Forhard decisions about children and parents, courtsneed access to the best available child welfareknowledge and expertise (be that paediatric,

psychiatric, psychological or social welfare). Localauthorities may need specialist health support inthis sphere (hence provisions of s27 (2) and (3) (d)CA, 1989) – yet in practice, access to preproceedings clinical support remains for most,rather elusive.

The system needs hard data to demonstrate it ismeeting the needs of some of society’s mostvulnerable children and families by providing courtswith the best skills and expertise – be that welfare orclinical. The emphasis in current research reportswhich simply highlight success in terms of avoidingthe use of ‘experts’ per se misses the point. We arean evidence-based system: practices depend onaccess to the best contemporary knowledge andskills – drawn from clinical research and every daypractice with vulnerable families. To be clearhowever, this is not an argument in favour ofexperts, rather for the collection of robustmeaningful data to support both use and non use ofclinical expertise in decision making about highlyvulnerable children and families.

Perhaps so far as the collection of basic casemanagement information is concerned, the recentaward to Cafcass for funds outside the currentspending controls of some £4,045,000 for an ITreview (Jan 2017- May 2018) will mean that the dataindicated above can be collected. Moreover that theopportunity will be taken to ensure IT systems forcourts and Cafcass are capable of ‘talking’ to eachother‘. Government officials must use thisopportunity – if necessary by a mandate onstandards and interoperability of Cafcass and familycourt IT devices and applications – to ensure thecompatibility of systems to permit the tracking of thejourney of individual children – and evidence of theskills and expertise brought to bear on questions oftheir care, protection and wellbeing.

A shorter version of this article was published in theAugust [2015] Fam Law – www.familylaw.co.uk


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Family Procedure Rule Committee Consultation

Family Procedure Rule CommitteeConsultation

1. The Association welcomes this opportunity torespond to the consultation, which is so much at thecore of its aims; it goes to the heart of its key aimsand objectives. It has long been a concern of theAssociation that there has been a marked disparity inthe approach taken to children and young peoplewithin different applications within the Family JusticeSystem, and between different courts. We welcomethis change in the rules which will address that andstress that the child is the centre of what the FamilyJustice System is about and that the foundingprinciple of the Children Act 1989, that the welfareof the child is paramount, in all we do, extends notjust to the courts' approach to decision making butalso the process of evidence gathering andparticipation. The young people that our membersrepresent have often raised concerns about theirfeelings of not being heard within the system and ofthe process being at arms' length from them butmaking decisions that fundamentally affect their dayto day lives. Participation for young people variesenormously, some wish to be a full and activeparticipant in their own proceedings, attendingcourt, giving evidence and filing statements, otherswish to see the place where decisions are made andwho is going to make them, others just want to be

fully informed and consulted. All those opportunitiesmust be available in every case.

2. The disparity between the experiences of childrenwithin private law and public law proceedings ishuge. In public law, with the model of tandemrepresentation, the welfare considerations are thefocus of the guardian's enquires and analysis report,and the communication of the child’s views the focusof the child’s solicitor. Children in private lawproceedings have no such equivalent, and the scanttime allowed to the preparation of section 7 reportswill often allow for only one meeting of the childand a Cafcass officer or in many cases not even that,if matters resolve after a Safeguarding letter only orwithout the filing of a Section 7 report. Many ofthese children and young people are largely excludedfrom participation in the proceedings that so clearlyinvolve them, and their parents may often not be theideal people to be informing a court about what thechildren actually want. The Association is pleasedthat this proposed rule change will require the courtto focus on this issue at an early stage and to thenkeep under review the question of participation asthe case progresses. It is the view of the Associationthat children should, as a matter of course be joined

Draft Amendments to Family Procedure Rules:proposal for new draft Part 3A of the Family Procedure Rules 2010

Children and Vulnerable Persons:Participation in proceedings and giving evidence

In June 2014 the President of the Family Division established the Vulnerable Witnesses andChildren Working Group to look at how a child can participate in family proceedings and theprovision for the identification of vulnerable witnesses. The Working Group published its reportin March 2015 after extensive consultation.

The report included a set of draft model rules and asked the Family Procedure Rule Committeeto consider urgently whether, and if so how, the recommendation and draft rules could beimplemented. The Family Procedure Rule Committee considered the draft rules and made someamendments. The Committee then sought comments on the revised set of draft rules.

The consultation paper and draft Rules can be viewed at https://consult.justice.gov.uk/ . TheALC’s response is set out below.



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as parties to contested private law proceedings thatprogress to the need for a Section 7 report and arecontested, or where enforcement of childarrangement orders is being considered, as thesecases are those where participation by the child oryoung person concerned is so key.

3. In supporting these proposed rule changes theAssociation would want to ensure that, in looking atthe factors set out, engagement in proceedings as achild party and engagement as a witness are notconflated. A child or young person who is a partyshould be actively involved as a matter of course, notas an exception (subject to the courts power toregulate presence in the courtroom). The Associationwants to see a move to it being a matter of routinefor those young people who want to, to feel ableand welcome to be present in court.

4. In response to the consultation questions wereply as follows:

1. There is a need to reflect Article 12 UNCRCand the right of a child to express a view if heor she wishes and is old enough (and see ZH(Tanzania) v SSHD [2011] UKSC 4). TheCommittee recollects there is provision inchildren proceedings for the court to considerthe attendance of the child under rule 12.14 FPR2010.

(a) Does rule 3A.1 identify with sufficient clarityand robustness, the circumstances when thecourt should be considering ensuring thatchildren are able to participate appropriately inthe proceedings in the light of Article 12 UNCRC?

Yes, subject to comments that follow.

(b) Draft rule 3A.1 refers to ‘where proceedingsinvolve a child’. Is the use of the word involvesufficiently clear about which children arecovered by the rule?

The proposed new Part 3A will apply to all familyproceedings and should be engaged when anydecision is being taken in which the outcome willhave a direct impact on a child or young person’slife. The word “involve” is sufficient as long as it isgiven as broad an interpretation as possible, whichwe hope is the intention of the rule, any attempt tonarrowly define or limit the application of the newrule would fundamentally flaw the overall aim ofincreased access to justice and participation inproceedings by children and young people and othervulnerable parties and witnesses.

(c) Draft rule 3A.2 (1) provides that the courtmust consider whether a child should

participate in the proceedings by reason ofmeeting one of the conditions in paragraph (2).Do you consider that these conditions areappropriate? If not please give reasons.

We very much welcome the placing of a positiveduty on the court to consider a child or youngperson’s participation in proceedings. Our onlyconcern is how is the court to have anunderstanding of the child or young person’s views,how is that to be gathered and by whom, inproceedings where the child is unrepresented? Atfirst appointment hearings in private law mattersCafcass will not have met with the child. For therule to be truly effective a mechanism needs to beestablished to enable participation. The initiative atthe Central Family Court for the attendance ofolder children and young people at such hearingswould seem to us the obvious way of achieving theaim of the new rule and we would inviteconsideration of extending that scheme.

We further note there is an overlap between 3A.1(1)(a) and 3A.2(2). What is described here at 3A.2(2)are the conditions applicable to whether a childshould participate. Conditions (a) and (b) areobvious. Condition (c) overlaps with 3A.1(1)(a) but isexpressed differently. We don’t need the extra layerof confusion about when is a child ‘involved’. Thesimple answer is to amend 3A.1(1)(a) to say “a childwho is a party to the proceedings, the subject of theproceedings but not a party to them, or otherwiseaffected by matters in the proceedings”. If that isused instead of the current wording of 3A.1(1)(a)then the question above about “Is the use of theword involve sufficiently clear about which childrenare covered by the rule?” goes away.

2. The overriding objective of the FamilyProcedure Rules. The overriding objective of therules is to enable the court to deal with casesjustly having regard to any welfare issuesinvolved. Dealing with a case justly includes sofar as practicable –a. Ensuring that it is dealt with expeditiouslyand fairly;b. Dealing with the case in ways which areproportionate to the nature importance andcomplexity of the issues;c. Ensuring that the parties are on an equalfooting;d. Saving expense; ande. Allotting to it an appropriate share of thecourt’s resources, while taking into account theneed to allot resources to other cases.

The Committee recognises that, as currentlydrafted, the overarching objective (rule 1.1)does not refer to children. Some committee


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members have raised concerns that this is anomission and would like to see the overridingobjective updated to reflect the need toconsider children within proceedings.

(a) Should the overriding objective be amendedso as to emphasise consideration by the courtof participation by children in proceedings?

The primary legislative duty imposed by the ChildrenAct 1989, enshrined in the “welfare principle” andthe Welfare Checklist place the child and their wishesand feelings at the core of decision making. We seethese new rules as a refocusing and emphasis to thosekey principles, which have always been there but havegot lost along the way. The ‘need to consider childrenwithin proceedings’ will now be covered by this newPart 3A. If the family court has a case to which Part3A applies (i.e. a case which ‘involves’ a child) then itwill have to ‘consider children within proceedings’.That is the whole point of this Rule amendment.Therefore while we would not object to a change inthe Over-arching Objectives, we feel the Children Actis clear and imply needs to be applied fully, we hopethat these rule changes will be a path for doing so.

(b) Is the overriding objective sufficiently dealtwith in the draft rule, as it appears at subparagraph (3) in each of 3A.3, 3A.4 and 3A.5taking account of the court’s duty under rule1.2 to give effect to the objective whenever itexercises any power given to it by the rules orinterprets any rule?

We don’t think anything is gained by the words “orby making... meeting the OO” at sub paragraph (3)in each of these provisions. The OO is there,everyone knows it, the court knows that it mustconsider those factors in every decision it makes. Wedon’t see that it needs repetition 3 times within thisone small Part of the FPR.

3. Eligibility. The Committee has consideredhow best to establish when this rule applies. Inparticular the current rule sets out that thecourt has discretion to make directions where avulnerable witness/party’s participation inproceedings is ‘likely to be diminished’. TheCommittee has considered further criteria but,on balance, felt that a more high leveldescription was required to make sure that thecourt has control and can make decisions oneligibility without being restricted by anyspecific criteria. The committee would welcomeyour comments, in particular how we can makesure the measures are not used unnecessarilytying up resources and causing delay.

We welcome the open approach proposed by theCommittee, a restrictive approach would, we

consider be counter productive. Courts are used torecording the reasons for their directions, whether itbe for the instruction of an expert, or joining a partyor any number of case management decisions taken,we are confident that proper consideration willsimilarly be applied to the application of this rule. Noone in the Family Justice System is blind to theresource implications of any decision, indeed thosein front line practice are only too aware, therefore abroad rule applied on a case by case basis, ensuresflexibility to achieve the aim, but is not in our viewlikely to open a flood gate.

We believe there should be a positive duty onpractitioners to bring to the Court’s notice that itmay need to consider these Rules in a particularcase, whether in relation to a child or young person,party or witness.

(a) Do you agree with the use of the phrase “islikely to be diminished” to define the personsother than children to whom the rules applyand who may be eligible for assistance (see thefollowing rules 3A.1 (1) (b) and (c), 3A.4 (1),3A.5 (1), 3A. 9 (1) (a) and (b))?

We agree, as it is an open phrase that allows for theinfinite variety of physical, cognitive, mental, culturalor other considerations that may impact on anindividual’s ability to engage fully and fairly inproceedings. It is particularly important that it allowsconsideration of the impact of cohesive control andfear, in cases of domestic abuse or familyintimidation, which may effect a witness who in allother respects would be thought to be perfectlycapable of participation. The key is to ensure that allthe evidence needed to determine the matter justlyis before the court, and that parties and witnessesare treated fairly with equality of arms.

(b) Do you think that the proposed rule, whichis intentionally drafted at a high level, providessufficient clarity for judges, practitioners,parties and court staff to be clear about thespecific circumstances in which it should beapplied?

Yes.

4. In addition to eligibility the specialmeasures in 3A.7 (1) must be usedappropriately in order to make sure the courtcomplies with the overriding objective andmakes best use of available resources. Forexample the current provision ofintermediaries at court in family proceedingsis at the discretion of the judiciary andrequires agreement from HMCTS beforefunding is provided. Consequently, new rulesneed to reflect this arrangement and support



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the most appropriate use of such a provision.The current draft at 3A.5 states that the courtmust consider whether the quality ofevidence given by a party or witness is likelyto be diminished and, if so whether it isnecessary to make one or more of thedirections in order to assist the party orwitness give evidence. Rule 3A.6 sets out alist of factors which the court must haveregard to. Rules 3A.6(j), 3A.7(4) and 3A.11(2)deal with the availability of measures.Current draft rule 3A.4 makes similarprovision about a party’s participation inproceedings. We would welcome views onwhether additional safeguards are requiredto make sure that the measures are usedappropriately and in accordance withavailable resources. For example;(a) Should certain measures in 3A.7 (1) besubject to an enhanced level of agreement froma senior judge?(b) In particular, should there be a further testbefore a party or vulnerable witness is eligiblefor assistance from intermediaries?(c) Should some measures be subject toavailability, or should there be expressprovision for discussion between the judge andHMCTS staff on the availability of a measurebefore a direction is made?

No. The additional safeguards suggested are aboutpreserving resources. If judges are trained properlyand we, as society, are to have faith in the judiciaryto carry out their functions properly, then we don’tneed additional safeguards. If the need forsafeguards was to protect the participant inproceedings we may take a different view but whatis mentioned here is about saving costs. We don’tsee that the involvement of a higher level of judge isappropriate or necessary as there is no justificationfor treating this case management decisiondifferently to others, many of which have resourceimplications. Also it will serve to build in delay. Whatis needed is for every family court in the country toproduce a page on their website, which details themeasures available and how to make it happen e.g.how to arrange the live link, how to arrange anintermediary. Once the judge makes the direction, itis inevitably in the hands of the parties’ lawyers (andoften in private family law proceedings, where thereare fewer lawyers – the lay parties) to make thepractical arrangements. Better information is neededand should be made public. What is happening nowis that each solicitor who needs a live link in theircase is reinventing the wheel by asking the samequestions and learning the process. What wouldassist is an easy guide available on a website.

5. Factors the court is to have regard to: TheCommittee noted that reference to a party or

witness’s employment is not contained in thelist of factors the court is to have regard to indraft rule 3A.6(G). Would a party or witnessesemployment status be relevant to theconsideration? If so, should a reference toemployment be included in the list of factors?

We don’t see this as providing essential additionalinformation, and though we can anticipate that isthe sort of question that would routinely be asked toinform the decision making process, it is one ofmany, and again don’t see any benefit in beingprescriptive.

6. Do you have any other comments on thedraft rule?

1. There is mention about giving reasons in theorder if the judge decides not to make a directionunder 3A.3(2) i.e. the judge decides that a casemanagement direction is not required to help thechild participate. We cannot see a specific provisionfor reasons to be given if the judge decides that thechild should not participate at all. That decision(consider whether a child should participate) is at3A.2(1). It is in that section that there should be arule about recording the decision and giving reasonsfor it. We would expect as a matter of routine that adecision either way is recorded.

2. 3A.2(3) says the court must consider any viewsexpressed by the child about participating. This begsthe question: what if the child has not expressed anyviews? Does that mean that the court has dischargedits obligation to consider views because none wereexpressed? If the child meets the conditions so thecourt has a positive responsibility to considerwhether the child should participate, then who isgoing to bring to the court’s attention the child’sviews about participation? In public law proceedings,a children’s guardian, the child’s solicitor or the socialworker can be charged with actively seeking out theviews of the child (whether subject to theproceedings or not and affected in some other wayby the proceedings). In private children lawproceedings the draft rules say this matter needs tobe considered no later than the FHDRA (which is thefirst hearing). As indicated the court cannot rely onwhat the parents say as often this will be completelydifferent things, with each having their own take onthe child’s competence and understanding. Weknow that the child or young people themselves arehighly likely, particularly in very conflictual situations,to be unable to express a view to either parent forfear of upsetting one or the other and are thus likelyto have a wholly different third view. As indicatedabove Cafcass only do a schedule 2 safeguardingletter and won’t speak to the child before the FHDRAas the safeguarding queries are done by makingtelephone calls with the parties. So then the next


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chance will be if, and only if, the court directs a s.7report. By that stage the proceedings could be welldeveloped and what of the case where the courtnever makes a s.7 direction? So who is going to getthe views of the child and present them to the courtso the court can take them into account whendeciding whether the child should participate?

3. As at [2] the same questions arise re: 3A.3(4)about how the court must consider any viewsexpressed by the child about how the child wants toparticipate or give evidence.

4. The measures at 3A.7 all refer to party, witness,or party or witness. These measures are applicable tothe child too. It should be drafted to cover all.

5. Whilst we understand this may not be fullywithin the remit of this draft Rule change, we doremain concerned that no mechanism has been

found to allow for representation for the purposes ofcross-examination in cases of domestic abuse,whether they be hearings under the Family Law Actor Children Act. It is accepted in the Criminal courtsystem that it is inappropriate for a victim to be crossexamined by an alleged perpetrator, we need thesame principle to be achieved in the Family JusticeSystem. No amount of special measures or assistancefrom the court can make up for the enormousdifficulty faced by a party/witness in this situation.There are many situations where no legal aid isavailable post LASPO, the most common being theabuse is historic and outside the evidence time limitsfor legal aid. A much needed measure, in our view, isthe ability for the court to appoint an advocate inthat situation, just as it does in Criminal matters.

6. At 3A.11(3) there is a mistake on the last line.We think it is meant to say “falls within 3A.2(2), (a),(b), or (c).”



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Details from the Legal Aid Agency – New fixed fee model for one counselcare cases from 1 October 2015A revised fixed fee model will be used for all care cases with one counsel starting on 1 October 2015.

Training and information packsOnline training modules are available on the provider training website so you can familiarise yourself with theVery High Cost Case (VHCC) Care Case Fee Scheme – link below.

Checklists and information packs can also be found on GOV.UK – see below.

In addition, you can try out the new form and online calculator. But these should not be used for claims before 1October 2015.

What exactly is changing?The new simplified Care Case Fee Scheme (CCFS) means that from 1 October 2015 you will have:

• one combined case plan and claim form• online calculator to help cost your claim

The scheme has been developed and amended following discussion and consultations with your representativebodies.

What is changing?A version of CCFS has already been operating as one of two options for payment claims. But from 1 October2015 the alternative option of a fully costed case plan will not normally be available.

However, there are exceptions – see below.

How does CCFS work?CCFS was previously known as the “Events Model”. Examples of “events” include the number of hearings,pre-hearing reviews and counsel conferences.

Costs are calculated by totalling up these “events”.

ExceptionsStarting on 1 October 2015 all single counsel care cases will be paid under CCFS. The only exception will be ifyou can show you would be paid at least 30% more by claiming hourly rates with a case plan rather than usingthe CCFS model.

This needs to be for justified reasons and include any enhancement under a full case plan.

What about two counsel care cases?Arrangements for two counsel care VHCCs remain unchanged.

Can the fixed fee model be used elsewhere?Fully costed case plans will remain for other public and private law cases. However, you can ask to use the fixedfee model based on “events” and the LAA will let you know if it is suitable.

You can find out more about how to apply in paragraph 19 of the CCFS information pack. This is available todownload on GOV.UK – see link below.

Further informationhttp://legalaidtraining.justice.gov.uk/ – to download CCFS training modules

https://www.gov.uk/guidance/civil-high-cost-cases-family – to download information packs and checklists andtest new form and online calculator


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ALC Response to the Special Guardianship Review

ALC Response to the SpecialGuardianship ReviewSeptember 2015

The ALC welcomes this opportunity to contribute tothe debate on Special Guardianship. Our membersare constantly involved in proceedings, especiallypublic-law proceedings, concerning children – alarge and growing proportion of those cases result inthe making of a special guardianship order. Theyadvise and represent local authorities, parents,children and prospective special guardians, socollectively they have substantial experience andexpertise in this area.

We note that the responses to this Call for Views willbe used to inform a Review of specialguardianship. As the only organisation representingchild law professionals from both sides of the legal

profession and all types of practice, we think thatour members can make a valuable contribution tothe ongoing work of the Review and and we wouldwelcome an opportunity to do so.

Does the legislation, regulations and/orstatutory guidance relating to specialguardianship need to be changed? If so, how?

Special guardianship is not being used for thepurposes for which it was said to be intended. Forexample, we are not aware of significant use inrelation to unaccompanied asylum-seeking children.The religious and cultural difficulties with adoptiondescribed in the Guidance tend to result in consent

Special Guardianship was introduced in 2005 as a new permanence option for children. At this time, itwas considered that it should meet the needs of a significant group of children; these included mainlyolder children who had become separated from their birth family, children already living with a relative orfoster carer, and groups such as unaccompanied asylum-seeking children who may need a secure legalbasis without breaking the strong attachment they may have with their family, abroad. However, the useof special guardianship has changed and local authorities and others have told us that it is now beingused for younger children – data shows a significant increase in the number of children aged under onebeing given a special guardian – and that the assessment process is not always sufficiently robust.

The Government launched a review of Special Guardianship in July. Commenting on that review in“Children and Young People Now”, the Children’s Minister, Edward Timpson recently identified a numberof areas of concern:

• The increase (64%) in the use of Special Guardianship for children aged under one;• The perceived treatment of Special Guardianship as the “default option” following Re B and R

B-S;• Inconsistent approaches to assessments.

As part of its review, the Department for Education issued a Call for Views to look at these issues andgather views on how to address concerns. The deadline for submissions was 18 September and theDfE is now considering the responses. The consultation paper can be found at:https://www.gov.uk/government/consultations/special-guardianship-review

The ALC’s response to the Call for Views is set out below. This is a lengthy document, but we think thatthe issues are important for our readers and are going to be the subject of debate in the coming months,so it is worth setting out in full. The likely next step is that the DfE will issue a more focussed consultationpaper setting out proposals for reform.



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to adoption being dispensed with by the courtsrather than special guardianship orders being made(although this approach may now be open tochallenge in light of the Re B, Re B-S line of cases).The Guidance should be amended to reflect reality,which is that special guardianship orders areincreasingly being made as an alternative toadoption for young children.

A large number of SGOs are made at the end of careproceedings as an alternative to the making of a careorder (or sometimes a care and placement order).However, where a child cannot return home and isto remain long-term with family members, manylocal authorities ask the carers to make a private lawapplication for a special guardianship order as analternative to starting care proceedings. There arecases where this may be appropriate and nothingwould be gained by commencing care proceedings,but we see some cases where this is being doneinappropriately, for example where the plan is indispute and/or there is significant conflict betweenfamily members.

In those cases, the court may well find itself dealingwith unrepresented litigants and probably no-onerepresenting the interests of the child. This is ofparticular concern when one considers the socio-economic profile of most children and families withwhom a local authority may become involved inrelation to child protection/safeguarding issues. Asresearch evidence consistently suggests, the majorityof such parents are on the lowest rung of thesocio-economic ladder. They thus have low incomesand therefore would be financially eligible for legalaid. However, save for two narrowly prescribedexemptions , legal aid for advice and representationon private family law matters is no longer withinscope of legal aid. This cohort of parents are unlikelyto be able to afford legal advice on a privately payingbasis. In contrast, if the local authority commencescare proceedings, all parties have the benefit of legalrepresentation funded by legal aid on a non-means;non-merits tested basis, the child has the services ofboth a lawyer and a Children’s Guardian and alloptions for dealing with the case are open to thecourt. This observation applies equally to the use ofchild arrangements orders, but we mention it herebecause in reality the vast majority of suchapplications are for SGOs. We are concerned thatfamilies may find themselves involved in privatefamily law litigation in the family court dealing withthe exact same issues as in care proceedings butwithout the benefit of the safeguards that exist incare proceedings (child being an automaticrespondent with separate legal and welfarerepresentation and all parties automatically entitledto legal aid).

We are also concerned about a number of caseswhere the local authority has funded legalrepresentation for the proposed Special Guardians,but the parents have been unable to obtain funding.This leaves the parents, who may be opposed to themaking of a special guardianship order, at a seriousdisadvantage. We address this more fully below.

2 In your experience, are practitioners clearand consistent about the factors to take intoaccount when considering whether an SGO isthe most appropriate order for which to apply?

We have two concerns in relation to this:

• As we mention elsewhere in this document,an SGO is often seen as the default option inany case where a child is going to live withkinship carers. For example, only yesterdayone of the authors of this response saw thefinal evidence from a local authority in careproceedings where the plan is for placementwith grandparents. The social worker hadundertaken a comprehensive “Re B-Sanalysis”, which included detailedconsideration of every conceivable option,including reunification, care order, supervisionorder and adoption, but did not considerwhether the placement with grandparentsshould be under a SGO or a childarrangements order. The social worker,whose analysis was other unimpeachable,had simply equated family placement withSpecial Guardianship. The Guidance needs tobe clear about the existence of other legaloptions besides Special Guardianship.

• When care proceedings conclude with a planfor placement with extended family, thedecision whether to ask the court to make acare order, SGO or child arrangements orderis often dictated in part by the support thatwill be made available. For example, fosteringallowances for connected person foster carersare not means-tested whereas otherallowances are. Also, the support provisionsfor special guardians are more comprehensivethan those for carers under a childarrangements order. The 2011 Family andFriends Care Guidance states that supportshould not be determined solely on the basisof legal status. Some local authorities try toachieve this, but are frustrated by thedifferent sets of rules in relation to support.We urge Government to consider removingthese perverse incentives that sometimesdistort professional thinking.


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3 Could the assessment processes fordetermining whether a prospective specialguardian is suitable be improved? If so,how?

While we are not experts in social work assessment– and others will be able to comment with moreauthority on the quality of the social work that goesinto the assessments – we are concerned at theapproach that is taken to ordering and preparingthese assessments.

Where a child cannot return home, one of threeoutcomes usually follows, namely adoption, specialguardianship or long-term foster care, and anyproposed carers are assessed accordingly. Theseorders have different legal implications, but theyshare the characteristic that the carers are beingassessed to provide a permanent home for the child.The assessment processes are however very different.Prospective adopters and foster carers each undergoa multi-stage process involving in-depth assessmentsby highly specialised workers. In each case, theessential characteristics of this process are prescribedby regulations and guidance and the quality of theprocess is overseen by Ofsted in the form of specificinspections. Foster carers and adopters are assessedagainst a detailed list of competencies and theircases are placed before a panel before approval canbe given. In contrast, the process of assessingprospective special guardians is not prescribed at all.The only prescription, in the Regulations, relates tothe contents of the report. Most local authoritieshave their own internal procedures, which describethe mechanics of the process but these do notgenerally contain much guidance about the socialwork aspects of the assessment, other than the needto include the prescribed items in the report. Thisleads to variation and inconsistencies in approachacross local authority areas.

It appears to us, as representatives of children andthus appraisers of the quality of the resulting reports,that some workers see the assessment and thepreparation of the report as synonymous, at theexpense of the wider-ranging, more-inquiring type ofassessment that takes place in adoption andfostering cases. Assessments in special guardianshipcases often appear to have been treated as aform-filling exercise. This raises the concern thatsomething important may have been missed. It maybe said that the greater attention given to adoptersreflects the unique legal status of the adopted child.Adoption is unique in some ways but, as alreadymentioned, all three types of carer are required tohave many of the same skills; the expectation beingthat they will provide a permanent care solution forthe child. Also, because of the requirement todemonstrate a significant change in circumstances

and then to obtain permission to apply, it is muchharder for a parent to overturn a specialguardianship order than it is to obtain the dischargeof a care order where a child is in foster care, iespecial guardianship is legally more ‘permanent’ thanfostering. This suggests that the assessment ofspecial guardians should be more, not less, thoroughthan that of foster carers.

We are not suggesting that special guardianshipassessments must always be done in the same wayas adoption/fostering assessments (although othersmay well say precisely that). It makes sense for themethodology of special guardianship assessments tobe more flexible than for the others, becauseadopters and foster carers are generally beingassessed to care for strangers, whereas prospectivespecial guardians are usually already known to thechild and may already have been the subjects ofother forms of assessment (eg as “connectedperson” foster carers). We do say, however, thatthere should be an expectation that the overalldepth of the assessment should be comparable. It isalso important that there is sufficient analysis of theinformation gathered under the various headings.We are aware of a local initiative in the Cheshire andMerseyside local family justice area, led by HerHonour Judge de Haas QC, where the court hascirculated a schedule of expectations in relation tothe content of special guardianship reports, with theaim of making up for the lack of analysis in manyreports. This initiative by a senior and highly-experienced judicial assessor of the quality of specialguardianship reports provides compelling evidencethat a significant proportion of reports are not fit forpurpose.

We strongly endorse the views expressed bycontributors to the Phase 2 Research Report inrelation to the timescales for assessments. The 2005Guidance suggests that 13 weeks is an appropriatetimescale from the start of the process. For thereasons that we have given above, this should becompared with the timescales for adoption andfostering assessments. In that context, and bearingin mind that the assessments often relate to childrenwho require better than “good enough” care, 13weeks seems entirely appropriate. In practice,however, where assessments are directed in thecourse of care proceedings, much shorter timescalesare often imposed in order to comply with the 26week time limit for the proceedings. This does notallow time for proper reflection by either theassessing worker or the person being assessed. Weacknowledge that there are cases where the carersare already known, eg because the child is alreadyplaced with them as connected person foster carers,where a shorter timescale may be appropriate, but



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even in those cases the carers are now beingassessed for a different task ie permanent ratherthan temporary care and it is not just a case ofcopying and pasting the contents of a fosteringassessment into the SGO report format. This problemis especially acute when carers are put forward in thelater stages of proceedings, because they are morelikely to be individuals who are not already known tothe child. Conducting such an assessment properlytakes more time, but this is precisely the situation inwhich the court is likely to want the assessmentdone quickly in order to keep to the 26 weektimetable.

There is a great variety of practice in relation toviability assessments, which is also reflected in thePhase 2 research. There is no clear understandingamong local authorities and courts as to whatconstitutes a viability assessment. For example, wehave encountered cases where a relative has beenexcluded from consideration on the basis of aviability assessment conducted in a telephone callfrom the social worker. This may be appropriatewhere the outcome of the discussion is that therelative does not in fact wish to be considered, but itis unlikely to be appropriate in any other situation.There is a need for clear guidance as to what theassessment process should look like. For example,what issues should be covered in a viabilityassessment and which should be left for a fullassessment? There is a danger that, if guidance istoo prescriptive, it can create a further tick-boxexercise, but we understand that some IndependentSocial Work agencies have protocols for theirworkers to use when undertaking viabilityassessments without creating a tick-box culture, so itcan be done.

4 What type of advice and support to children,special guardians, and birth parents do youthink should be provided and when?

Taking on the permanent care of a child is a majorcommitment for prospective special guardians. Earlyand detailed legal advice in relation to their rightsand responsibilities, and the availability of support,together with representation within proceedings, isvital, but is often limited or non-existent. This isneeded whether the special guardianship is beingproposed within care proceedings or as a free-standing application.

Local authorities have discretion to pay for legaladvice and representation under the Regulations. Inpractice, the local authority may typically pay for acouple of hours of legal advice at legal aid rates butmany refuse to pay for representation for prospectivespecial guardians. Two or three hours funding atlegal aid rates will at best cover an initial meetingbetween lawyer and prospective special guardian to

take instructions and provide advice in the meetingand a fuller letter of advice. It is unlikely to coverconsideration of any reports or other coredocuments, further queries that the prospectivespecial guardian may have later in the proceedings,nor any consideration or advice on any proposals ofsupport from the local authority, let alonenegotiation or written representations by the lawyeron behalf of the prospective special guardian onsuch important issues.

The Justice Committee in its Eighth Report of Session2014-5 (Impact of changes to legal aid under Part 1of the Legal Aid, Sentencing and Punishment ofOffenders Act 2012) recommended that “furtherconsideration be given to the provision of legal aid inprivate law applications for Special GuardianshipOrders where applicants are members of theextended family” (para 62). In its Response, theGovernment pointed out that legal aid is availablewhere Special Guardianship is sought in relation toand as an alternative to care proceedings, and thisdoes work for some prospective special guardians.However, this does not help those prospective specialguardians who are above the means threshold, sonot financially eligible for legal aid, yet cannot affordto pay private fees for representation and advice.

Children who are living with special guardiansgenerally have regular contact with one or bothparents and may have contact with other familymembers. Contact is frequently a stressful andcontentious issue between parents and carers. Inthose cases, special guardians need to be able to relyon the local authority for support in relation tocontact. This may include supervising contact,providing a neutral venue, giving training to carers orhelping the parties to agree arrangements. This helpmay be required for a long time, perhaps for as longas the order lasts, but our members find that localauthorities tend to see any support as strictlytime-limited, with the expectation that the carers willtake on full responsibility after a few months. It isappropriate in principle to empower specialguardians to deal with these matters themselvesrather than relying on the local authority, but thereare cases where conflict is too entrenched and it isunreasonable to expect the carers to deal withcontact without support. A common example of thisis where a child is placed with paternal grandparentsand there is conflict between the parents – themother’s contact is likely to remain contentious forreasons that are outside the control of the specialguardians. If support is withdrawn after a fewmonths, the contact is likely to cease, which is unfairto parent and child, or worse, the placement maybreak down altogether.

The local authority is required by the Regulations toprovide any support plan to the proposed carers in


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draft and give them 14 days to comment upon it. Inreality, where Special Guardianship is beingconsidered within care proceedings, the timetablesimposed by the court do not generally allow this tohappen. This is unfair to the proposed SpecialGuardians, who need to be fully informed and havetime for consideration before they are asked tocommit to the long-term care of the child.

We also find that support assessments often focusprimarily or exclusively on financial support. TheRegulations provide a menu of services, many ofwhich will be useful for many special guardians, butthese services are frequently not properly consideredas part of the support plan. The only real exceptionto this is support with contact, which is generallyconsidered, but is frequently time-limited. Localauthorities need to take a more holistic approach toassessment and service provision. This is challengingat a time of increasingly-squeezed budgets but, ifdone properly, we suspect that it will also help toreduce the number of placements that break downand therefore be cost-effective in the long term.

5 In your view, what constitutes good practicein enabling a special guardianship to besuccessful?

Our members are not engaged in social workpractice, so we can respond to this question onlyinsofar as the results of different qualities of practicebecome apparent in court.

We are concerned that many social workers andmanagers appear to treat special guardianship as the“default option” to be used in all cases where achild is to be placed with kinship carers. It appears insuch cases that there is very little, if any,consideration of alternative forms of order, forexample a child arrangements order. Specialguardians have the power to restrict the role of theparents in exercising parental responsibility, even tothe extent of excluding its exercise altogether. Theparent’s only option is to apply to discharge theorder, but this first requires permission of the courtwhich is difficult to obtain. In contrast, save to theextent that it determines with whom the child is tolive, a child arrangements order is predicated uponthe active sharing of parental responsibility. Theparent is therefore potentially able to be activelyinvolved in the child’s life. There are cases where theparents present a risk that can only be managed ifthe carers have the benefit of the enhanced parentalresponsibility, which is only available through specialguardianship, but there are also cases where itwould be in the child’s best interests for the parentsto remain actively involved. Training, guidance andsupervision need to reflect the importance ofthoroughly considering both options.

This is not the only reason why there tends to be apresumption in favour of special guardianship.Kinship carers usually need financial and othersupport in order to sustain the caring role. Localauthorities have powers to provide such support tothe carers of children who are the subjects of eitherchild arrangements orders or special guardianship.However, there is more comprehensive legislationand guidance on the provision of specialguardianship support. In contrast, the legislationand guidance in relation to child arrangementsorder allowances are extremely sketchy and there isno specific provision for the provision of non-financial support. In consequence, local authoritiestend to have better-resourced and developedsupport services for special guardians that theyhave for holders of child arrangements orders. Thisprovides a perverse incentive for social workers andcarers to favour the option of special guardianship.Where this results in the making of a specialguardianship order when a less interventionist orderwould suffice, the parents are being unfairlydisadvantaged in relation to their relationship withthe child. Conversely, we are aware of cases wherechildren have remained in the looked after systembecause their connected person foster carers wouldbe less-well supported if they became specialguardians.

We acknowledge that the above point goes widerthan special guardianship alone, but we considerthat there is an urgent need to review the way inwhich the availability of support for carers dependson the child’s legal status.

The responses to the Phase 2 research highlightanother aspect of this. It is noted (section 5.1) thatthere is a reported increase in the number ofsupervision orders being made at the same time asspecial guardianship orders. If that is correct, and wesuspect that it probably is, it suggests that there aremore cases where the parties and the court are notentirely confident about the placement. Somerespondents suggested that child arrangementsorders may be more appropriate in such cases. Weagree, and say that this illustrates the tendency ofprofessionals to see special guardianship as thedefault option.

6 Please add any other comments/views belowabout your experience of special guardianshipand how it could be improved, if at all?

Where, before care proceedings are commenced,the local authority concludes that a child cannotreturn home, but should stay with members of theextended family under a SGO (or for that matterunder a child arrangements order), there are twoways for the local authority to proceed. It can



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commence care proceedings with a view to thecourt making the desired private law order, or itcan support the carers to make a private lawapplication. We are concerned that localauthorities frequently use the latter courseinappropriately.

There are several reasons for our concern:

• The child will not normally be represented,whereas in care proceedings they wouldautomatically benefit legal and social workrepresentation from a solicitor and Children’sGuardian;

• Legal aid is not available to respondents inprivate law proceedings. If, therefore thelocal authority decides to fund theapplicant’s legal costs, the parents will beunrepresented and thus at a seriousdisadvantage;

• The court may decide to direct a section 7welfare report in relation to the application,in order to secure independent advice as towhether the order is in the child’s bestinterests. The report is however usuallycommissioned from the local authority that issupporting the arrangement rather than fromCafcass – the current SDCS/Cafcass Protocolhas the effect of encouraging this. A reportprepared by an agency that is supporting,and may well be funding, the application, isnot an independent report and should not berelied on to safeguard the child’s welfare.

Local Authorities should be encouraged to use careproceedings rather than private law proceedings inthis case, notwithstanding the additional costs. Theincreasingly-restrictive financial situation creates arisk that local authorities will use the cheaper optionmore often and therefore that more children andparents will be left in this position.


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Publish and Be Damned ?

Publish and Be Damned?

Scandal mongering is nothing new.In December 1824, the publisherJoseph Stockdale wrote to the Dukeof Wellington:

‘My Lord Duke, in Harriette Wilson’sMemoirs, which I am about to publish, arevarious anecdotes of Your Grace which itwould be most desirable to withhold, atleast such is my opinion. I have stopped thePress for the moment, but as the publicationwill take place next week, little delay cannecessarily take place.’

Stockdale and Wilson were willing to omitWellington from the memoirs, in exchange formoney – in effect, attempted blackmail. FieldMarshal Arthur Wellesley, 1st Duke of WellingtonKG, GCB, GCH, PC, FRS, was a soldier andstatesman, the victor of the battle of Waterloo andthe vanquisher of Napoleon, and subsequently aleading political figure in 19th century Britain.Harriette Wilson was a London society courtesan,with whom Wellington, a married man, had had along running liaison.

Arguably, Wellington’s reported response toStockdale – ‘Publish and be damned’ –worked.Wellington suffered no loss of status orreputation; and Stockdale and Wilson mademoney, although Stockdale was later beset bycostly (unrelated) litigation with Hansard, theparliamentary reporter.

The memoirs were described as a ‘disgusting andgross prostitution of the press’ (A Commentary onthe Licentious Liberty of the Press, London, 1825),which doubtless helped sell yet more copies of thebook (31 editions in one year, with excerpts piratedand sold as illustrated broadsheets, and French andGerman editions quickly appearing).

Now consider Gallagher v Appleton, the latest‘celebrity’ divorce to be widely reported, in The Sun,The Mirror, The Daily Mail, local press, etc. The casehas been transferred to the High Court, News UKhaving applied for permission to publish details of

the financial remedy proceedings. The Guardian hasreported the story as follows (emphasis added):

‘Jacob Dean, counsel for News UK, said that noevidence had been presented to suggest thatreporting the proceedings would cause damage ordistress. Coverage of divorce cases enables the publicto learn about how the divorce courts operate andhow fair divisions of assets are reached, he said.“The way the public is educated is in reading storiesabout people and what happens to them when theyare involved in proceedings,” he added. He went onto say that relying on only anonymised reportswould not generate much coverage in themedia. Many of the details of the couple’s privatelife had already been widely reported in previousstories.

Other high profile cases, such as the divorcebetween the former Beatle Paul McCartney andHeather Mills were covered by the media, the HighCourt was told. But Patrick Chamberlayne QC, whorepresents Appleton, told the hearing: “Both ofthose spouses had waged their battle through thepress outside [court].

“There had been massive public speculation as towhat the award would be. It had reached such apitch that it would have been impossible toanonymise any judgment or say that it would not bepublished.”

By contrast, he stressed, there had been nospeculation or awareness of the Gallagher/Appletonfinancial remedy proceedings in the run up to lastweek’s hearing. “It’s impossible to say that this fallsinto the McCartney/Mills category,” he said. “There’sno important legal principle. It’s sharing, it’smatrimonial assets.

“Is the simple fact that the couple is famoussufficient to displace the presumption of anonymityand confidentiality? I don’t see that should be so.There’s no simple fame exception to the principle ofanonymity and confidentiality. This couple [Gallagherand Appleton] have not spoken about their divorcein a warring way or scoring points through themedia.” ’



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http://www.theguardian.com/uk-news/2015/sep/22/gallagher-appleton-divorce-triggers-dispute-over-family-court-reporting-appleton

What are the relevant principles, and how shouldthey be applied? What difference is made by theinternet and social media compared with printmedia? And what about any children?

The principlesThe European Convention on Human Rights (ECHR),article 6, sets out the unqualified right to a fair trial;and article 8 sets out the qualified right to respectfor private and family life. Article 10 is the qualifiedright to freedom of expression and information.These rights are of general applicability.

Family proceedings are usually conducted in private,although since 27 April 2009 duly accreditedmembers of the press have been entitled to sit incourt and listen to the proceedings (but not reportupon them without the court’s permission) – FamilyProcedure Rules 2010 (FPR) r 27.11.

The court has the power to exclude the media, eitherof its own motion or on application by one or moreof the parties, on the grounds that this is necessary:

• in the interests of any child concerned in, orconnected with, the proceedings;

• for the safety or protection of a party, awitness in the proceedings, or a personconnected with such a party or witness; or

• for the orderly conduct of proceedings.

None of that should be taken to detract from theimportance of ECHR Art 10 rights, in a democraticsociety.

The court may exclude the media altogether, if thatis necessary to ensure justice will not be impeded orprejudiced. As ever, the court has to conduct abalancing exercise as between article 8 and 10 rights– and article 6 rights, if appropriate. The purpose ofany such application is not to limit the media’sreporting rights (which remain restricted in relationto children in any event), but to deny the mediaaltogether their presumptive right under r 27.11(3)to be present for the purpose of exercising a‘watchdog’ role (with limited reporting rights).

The court must consider ‘the nature and sensitivitiesof the evidence’, and the media’s watchdog function.The applicant must show that press attendance incourt cannot be adequately managed within existingsafeguards in respect of the identification of partiesand of the Administration of Justice Act 1960, s 12(which regulates the publication of informationrelating to proceedings in private). Re Child X(Residence and Contact: Rights of Media Attendance:

FPR Rule 10.28(4)) [2009] EWHC 1728 (Fam) [2009] 2FLR 1467[2009] 2 FLR 1467 sets out guidanceregarding exclusion of the media from the courtroom.

Notwithstanding the presumption that mediarepresentatives are entitled to attend most familyproceedings, the general law of confidentiality andcontempt relating to ‘publication’ continues fully toapply. The Children Act 1989, s 97(2) provides that:

‘No person may publish to the public at large or anysection of the public any material which is intendedor likely to identify:

– any child as being involved in anyproceedings before the Family Court, inwhich any power under the Children Act1989 or the Adoption and Children Act 2002may be exercised with respect to that or anyother child; or

– an address or school as being that of a childinvolved in any proceedings.’

It is a criminal offence to contravene this, althoughno offence is committed if the accused proves thathe did not know, and had no reason to suspect, thatthe published material was intended, or likely, toidentify the child.

This provision ends when the relevant proceedingsend.

The Administration of Justice Act 1960 s12 statesthat:

‘(1) The publication of information relating toproceedings before any Court sitting in private shallnot of itself be a contempt of court except in thefollowing cases, that is to say –

(a) where the proceedings –

(i) relate to the exercise of the inherentjurisdiction of the High Court with respectto minors;

(ii) are brought under the Children Act 1989or the Adoption and Children Act 2002;

or(iii) otherwise relate wholly or mainly to the

maintenance or upbringing of a minor;’…’

The restrictions imposed by the Administration ofJustice Act 1960, s 12 continue after the end of theproceedings, and the High Court has jurisdiction tomake long-term injunctions restricting reporting andpublication of proceedings relating to a child. Thisshould be considered when a final order is made inChildren Act 1989 proceedings, if there is any needfor continuing anonymity.


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The High Court may exercise its inherent jurisdictionto relax or to reinforce the restrictions contained inthe Administration of Justice Act 1960, s 12 or theChildren Act 1989, s 97(2). The relevant case lawmakes it clear that in applying the principles, a caseby case approach is required, balancing competingrights and interests on the basis of the particularfacts of each case.

Importantly, the children of celebrities are not in aspecial category in relation to media attendance incourt or in relation to the reporting of a case.However, it is ‘almost axiomatic’ that media interestwill be more intense in such cases. The courts haverecognised that the need to protect the child fromintrusion or publicity, and the danger of informationleaking out into the public domain, will similarly bethe more intense – see Child X (Residence andContact – Rights of Media Attendance – FPR Rule10.28(4)) [2009] EWHC 1728 (Fam), [2009] 2 FLR1467.

TransparencyThe President of the Family Division is consideringhow to ensure that the Family Court’s decisions are‘transparent’, as well as how to answer theaccusation that the Family Court is a ‘secret court’(as opposed to a court which sits in private). ThePresident has published guidance (Practice Guidance:Transparency in the Family Courts: Publication ofJudgments (January 2014) [2014] 1 FLR 733), and isconsulting on how to improve transparency.

The anonymised publication of Family Courtjudgments on the (free and available to all) BAILIIwebsite is seen as a helpful way to achieve this.Circuit judges and above are already expected topublish all their judgments (see https://www.judiciary.gov.uk/publications/transparency-in-the-family-courts/ ).

The President is currently considering whether (and ifso, what) court documents should be disclosed tothe press (https://www.judiciary.gov.uk/publications/consultation-family-transparency-the-next-steps/ ).

So what of Gallagher v Appleton ?News UK (formerly News International, and thepublishers of ‘The Sun’, and ‘The Times’, whosemain competitor, DMG Media, publishes the DailyMail and the Mail on Sunday) has applied forpermission to report details in the case, claiming thatthis is an important way to educate the public aboutthe way the divorce courts (sic) decide financialmatters.

Ms Appleton’s counsel has answered this argumentby saying that there is

‘…no important legal principle. It’s sharing, it’smatrimonial assets…Is the simple fact that thecouple is famous sufficient to displace thepresumption of anonymity and confidentiality? Idon’t see that should be so. There’s no simplefame exception to the principle of anonymity andconfidentiality. This couple [Gallagher andAppleton] have not spoken about their divorce ina warring way or scoring points through themedia.’

Put another way, there is nothing of legal interest inthe case which might inform or educate the public(unlike, for instance, Parlour, through which newlegal principles evolved, and which by coincidenceconcerned a famous football player).

Perhaps tellingly, News UK’s counsel suggests thatwhat helps educate the public is reading ‘storiesabout people’; and he states that anonymising anyinformation about the case would ‘not generatemuch coverage in the media’. The obviousconclusion is that if Mr X and Ms Y of Anytown weredivorcing and had similar matrimonial assets toshare, there would be nothing to stimulate thepublic’s appetite for information about what thecourt decided and why. Not only would the publicnot benefit from being educated, but there wouldalso be no commercial justification for any of NewsUK’s publications to run the story, because it wouldnot sell newspapers.

So, is this a case of public interest (in which thebalance comes down in favour of ECHR article 10,over article 8, and application of Administration ofJustice Act 1960, s 12 should be relaxed); or a casethat interests the public (with the balance in favourof article 8, and the Administration of Justice Act1960, s 12 remaining fully in force)?

What about the internet?Yesterday’s news is no longer tomorrow’s fish andchip papers. Newspapers increasingly regardthemselves as ‘digital first’ media, i.e. news websitesthat happen to print a paper version, rather than theother way round. News items posted on theirwebsites are there, potentially, for ever. They can alsobe spread globally, rapidly and easily.

Added to that, individuals and businesses use socialmedia as a matter of course, with digital marketingas a major development, and numbers of clicks perhour on a website an important indicator of itspopularity (and therefore its marketability toadvertisers).

How can the family courts control the disclosure ofinformation in these circumstances?



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Re J (Reporting Restriction: Internet: Video) [2013]EWHC 2694 (Fam), [2014] 1 FLR 523, concerned thepublication on the internet of information (includingvideo footage of the child being removed from theparents’ care) by a father. The local authority appliedfor a contra mundum publicity injunction, i.e. againstthe world at large, until the child’s 16th birthday. ThePresident heard the case. He underlined the need fortransparency in family cases, where the orders madecan be draconian and where there is a public interestin permitting discussion of the issues raised. In thiscase, the balance between such transparency, andprivacy for the child, was struck by the courtprohibiting publication of the child’s name butpermitting publication of the video images, takenwhen the child was a day old (so, it was reasoned,they could not be used to identify him in the future).

The court considered the implications of injunctingpersons, such as internet providers, based outsidethe jurisdiction. If the person is named, service has tobe as required by the law of that person’s homejurisdiction, and there must be evidence ofenforceability in the foreign jurisdiction. For a contramundum injunction, the practice applied inworldwide freezing order cases should be used, withthe court’s permission required for enforcementoutside England and Wales.

The difficulty remains that once information isavailable on the internet or through social media,even if it is later removed, any damage will havebeen done, and the legal remedies, such as forcontempt of court, are unlikely to cure the harm. Inthis case, with regard to the publication of the videofootage, no-one, of course, knows how the child,when older, will feel about that.

Children and anonymityMr Gallagher and Ms Appleton have a 14 year oldchild together, and there are half siblings as well. Theviews of children can be overlooked when familyrelationships break down, even when residence andcontact are the focus of any dispute, even more sowhen the only issue before the court is finance.

It is not clear from the media coverage whether anyof the children of this family have been consultedabout the press reporting of the parents’ court case.If the United Nations Convention on the Rights ofthe Child is to be respected (particularly article 12– respect for the views of the child: when adults aremaking decisions that affect children, children havethe right to say what they think should happen andhave their opinions taken into account), then theyshould be asked what they think.

Recent research in relation to the views and concernsof children and young people (https://www.nyas.net/

wp-content/uploads/2014/07/NYAS-ALC-REPORT-CHILDREN-SAFEGUARDING-AND-NEXT-STEPS-MEDIA-ACCESS-TO-FAMILY-COURTS-FINAL-7.pdf )points to clear and consistent opposition from youngpeople to any greater access for the media to theFamily Court. Professional organisations, rangingfrom the Association of Lawyers for Children,Resolution, and the National Association ofGuardians ad Litem and Reporting Officers, to theOffice of the Children’s Commissioner and thevarious medical Royal Colleges, have seriousmisgivings about the proposals for greatertransparency, particularly given the continuingpressure from the media (including through theSociety of Editors) to open up the family courts sothat everything can be reported.

There are increasingly evident difficulties with thecurrent arrangements, including the publication ofjudgments. Effective anonymisation is fiendishlydifficult, requiring skill, attention to detail, and time,to ensure there is no risk of ‘jigsaw’ identification(i.e. piecing together separate bits of informationthat, taken together, make it possible to identifyindividuals).

It remains far from clear why all judgments are to bepublished, irrespective of their importance. Arguably,unless there is some novel point of law, and/or thedetails of the case are already in the public domain,the public interest is not served by publication,particularly if the necessary anonymisation wouldmake it difficult to render the judgment intelligibleto an outside reader.

In the Gallagher v Appleton case, if Ms Appleton’scounsel is correct, and theirs is a straightforwardcase of ‘sharing…[and]…matrimonial assets’ with nospecial features (other than the parties’ celebrity), inwhich neither party has divulged the details of thecase to the media, nor wishes to, why, indeed,should they not be protected from the publication ofthose details? Just because the public may beinterested in the case (and it might sell a few morenewspapers or result in a few more hits on websites),it does not mean that press reporting of the detailswould be in the public interest.

We do not know if or how Wellington’s children,Arthur (17 at the time of publication) or Charles (16),were affected by Harriette Wilson’s memoirs of theirfather. However, the law has moved on since 1824,and with it our knowledge and understanding of thedamaging effects on children and their parents ofunwanted publicity. Rather than publish and bedamned, let’s hope that Liam Gallagher, NicoleAppleton, and their children, are allowed to keep atleast part of their private lives just that – private.(Reproduced with permission of TV Edwards LLP)


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Minutes of the AGM

Minutes of the AGMheld on 13 November 2014 –at the Marriott Hotel, Bristol

1. Minutes of AGM on 21 November 2013 were approved and no corrections offered.

2. There were no matters arising

3. Election of Officers and Executive Committee Members:

a) Normally Officers hold a term of three years. Details for all ordinary Executive Committeemembers and officers can be found on the Association’s website.

b) Executive Committee Members are elected to serve for 3 years. Sarah Vakil and DebbieSingleton were elected in 2011 and are willing to stand again. They were dulyrecommended to stand again and were willing to do so. The membership approved themotion that those members be re-elected.

b) Four candidates applied to fill the vacancies on Executive Committee, Oliver Millington,Jane Crowley QC, George Eddon and Elizabeth Cape-Cowens were duly proposed.The membership approved the motion that those members be elected to the Committee.

c) Martina Longworth and Alan Bean after many years service including acting assecretary and co-chair respectively are standing down

Election of Officers

d) Co-Chairs: Maud Davis and Nicola Jones- King had been elected to jointly hold theposition for two years and have agreed to remain in the position for a further one year.

e) Vice-Chair: Martha Cover stands again for one year and the Executive Committeeagrees.

f) Secretary: Debbie Singleton stands for this post as an Officer of the ExecutiveCommittee.

g) Treasurer: Noel Arnold stands for this post as an Officer of the Executive Committee.h) No other nominations. All officer posts are approved.

4. To consider the accounts of the Association

a) A summary was given by the Secretary of the accounts at the end of year to 30thSeptember 2014Report by John Ellis & Co. Chartered Accountants. These had been signed and wereapproved by external accountants. The Association is solvent and the accounts wereavailable for inspection.

b) There were no questions and the accounts were accepted as presented.

5. Subscription levels for members of the Association – No change.

6. Plans for the forthcoming year were taken with items above and the report of the Co-Chairs onthe work of the Association since the last AGM was presented later as per the conferenceprogramme.

7. There were no motions or any other business proposed and seconded by two full members andnotified to the Secretary prior to the AGM.

8. There were no matters of an urgent nature to consider.



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Readers will have seen reports of the (largely negative) reaction to the remarks

by Lord Sumption about the representation of women in the judiciary. One of

many letters to The Times about the topic came from our own Martha Cover:

Sir, in 1974 Barbara Calvert QC became the first woman head of chambers in the

Temple. Not known for her patience, she set up 4 Brick Court with three other women.

Of course, they soon became known as the “Monstrous Regiment of Women”.

Coram Chambers was founded in 2000 after a merger of 4 Brick Court with another

chambers. Since 2001, we have produced six women circuit judges and a woman

“Master” of the Queen’s Bench Division. All of them are regarded as outstanding

members of the judiciary. We think that by giving the judiciary seven of our best

women, we have managed single-handedly to enhance the judicial gene pool – and

patiently await some sort of recognition from the Ministry of Justice. Meanwhile I will

ask our needlework and embroidery sub-committee to start work on a new thinking

cap for Lord Sumption.

Martha CoverHead of ChambersCoram Chambers, London WC1


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Medical Treatment and the Law: Issues of ConsentThe Protection of the Vulnerable: Children and Adults Lacking Capacity

HHJ Richard Harper 2nd edn Jordan Publishing ISBN:978 1 84661 995 3

An introduction to the complex and rapidly developing area of medical treatment and the law in relation tothe vulnerable, namely children and those adults who lack capacity.

For family lawyers, including children’s lawyers, this book is an invaluable source of case law, as well as givingclear guidance on practice and procedure, in this difficult and delicate area of the law. If we, as practitioners,are to pay proper attention to children’s rights, a thorough understanding of the concept of consent isindispensable.

The author defines ‘consent’ in the context of medical treatment – ‘the voluntary and continuing permission ofa patient to receive a particular medical treatment, based on an adequate knowledge of the purpose, nature,likely effects and risks of that treatment including the likelihood of its success and any alternatives to it’ – andsets out the basic principles and their application. This includes the dual legal and clinical purposes of consent,and gives practitioners a firm foundation for applying those principles.

‘The Doctor and the Courts’ provides a helpful insight to the difficult medico-legal dilemmas faced by cliniciansin practice, and how the courts can assist – a process recently illustrated in the case of Re Jake [2015] EWHC2442 (Fam), and highlighted in the failed ‘right to die’ Bill. Even more fundamental than that, we are reminded(in chapter 11) that any treatment administered without consent amounts to trespass and maybe criminalassault.

Family practitioners will regularly, though possibly not frequently, encounter questions about consent,specifically to do with capacity, whether in relation to adults or children. It is vital that any such questions areidentified early on, and addressed, with regard to children, and adults who lack capacity, who cannot validlyconsent to medical treatment. In the case of children, in the first instance, someone with parental responsibilityhas to consent.

With regard to parental consent, Chapter 1 reminds us that disputes about medical treatment have to bedecided on the basis of the subject child’s best interests; and while ‘the views of parents must be accordedprofound respect and given weight… they cannot be decisive.’ If there is a dispute that cannot be resolvedbetween doctors and parents, the court decides.

The author sets out the relevant legislation, with detailed chapters (2 and 4) on ‘best interests’ and on theMental Capacity Act 2005 (new to this second edition). He also deals, in chapter 8, with jurisdiction withinfamily proceedings, including cases brought under the Children Act 1989 and/or the court’s inherentjurisdiction, as well as private and public law cases.

Chapter 11, on children and medical treatment, gives useful detail on children’s common law and statutoryrights to consent. The chapter covers the fundamental elements of parental responsibility; decision makingwhen parents disagree, or refuse treatment for their child; how the court applies the ‘best interests’ test; andthe child’s rights to refuse consent to medical treatment. There is detailed examination of the decision in Gillickv West Norfolk and Wisbech Area Health Authority [1986] AC112, a timely reminder of the basic conceptsunderpinning a child’s common law right to consent in the face of parental opposition.

Book Reveiws

Book Reviews



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The chapter also covers the question of consent to medical examinations and interviews of children, bothregular occurrences, which need to be properly conducted, for the sake of the individual child, as well as toensure anything of evidential value is preserved.

Importantly, the author deals with the fact that no child – of any age, and even if Gillick-competent – isabsolutely entitled to refuse consent to treatment. This is in distinct contrast to the entitlement of an adultwith capacity to refuse treatment, even if that refusal is likely to lead to death; and even though upon thechild’s eighteenth birthday, he or she would then be entitled to refuse treatment, so long as he or she – as anadult – had capacity.

The court has wide powers to override a child’s refusal of consent, using its long established parens patriaejurisdiction. However, it is recognised that the nearer a child is to the age of majority, the more able a child willbe to make his or her own decisions about medical treatment; and it will normally be in the child’s bestinterests for the court to respect the child’s integrity as a human being and ‘not lightly override’ the child’sdecision on ‘such a personal matter as medical treatment’ (per Balcombe LJ in Re W [1992] 3 WLR 758 at 776,as quoted in the text).

Chapter 11 goes on to consider in detail the authorities on whether a child lacks capacity, including in caseswhere the child was nearing majority and was refusing treatment for a life threatening condition (those whohave read ‘The Children Act’ by Ian McEwan (Jonathon Cape 2014) will recognise possible source material).The authorities cited, in the main, were decided during the 1990s, and it may be time for them to be revisitedin the context of the United Nations Convention on the Rights of the Child (UNCRC), particularly articles 12(respect for the views of the child), 14 (freedom of thought, conscience and religion – potentially relevant toJehovah’s Witnesses) and 17 (access to information).

Importantly, the UNCRC seeks to strike a balance, in much the same way as modern English family law,between competing elements – particularly as between children’s wishes and feelings and their best interests.The Unicef fact sheet states that, in relation to article 12:

‘This Convention encourages adults to listen to the opinions of children and involve them in decision-making – not give children authority over adults. Article 12 does not interfere with parents’ right andresponsibility to express their views on matters affecting their children. Moreover, the Conventionrecognizes that the level of a child’s participation in decisions must be appropriate to the child’s level ofmaturity. Children’s ability to form and express their opinions develops with age and most adults willnaturally give the views of teenagers greater weight than those of a preschooler, whether in family, legal oradministrative decisions.’

English family lawyers are well used to such balancing exercises. The difference lies, perhaps, in the emphasison balancing rights, as opposed to the historic (some might say, by definition, paternalistic) concept of parenspatriae.

The Court of Protection receives detailed consideration. This is a jurisdiction with which family practitionersneed to be familiar. For instance, if a child is unlikely ever to develop capacity, a transfer of any proceedings tothe Court of Protection may be necessary as the child approaches majority.The comprehensive nature of the book is underlined by chapter 13, dealing with medical treatment other thanfor purely medical reasons. This chapter ranges from tattooing to reproductive issues (including fertility,surrogacy and abortion), to gender recognition and female genital mutilation. While some of these areas mayappear unusual in the context of everyday practice, the recent publicity about female genital mutilation (after30 years of statutory prohibition with no obvious effect) illustrates how growing awareness, amongst thepublic at large as well as amongst doctors and lawyers, can have a profound effect on what constitutes‘everyday practice’.The helpful appendices also demonstrate the author’s comprehensive approach, and will assist practitioners indeveloping their knowledge of this difficult area of law.This book will equip family lawyers with the material needed to argue generally or in detail as to disputesregarding consent to medical treatment, for adults or children. What may seem complex and arcane can bemade manageable with this authoritative work.

Maud Davis


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Psychology in Family and Child LawC L van Rooyn (2014)Family Law

xxxii + 349pp £60.00 Paperback

This book provides a useful introduction to the role of psychology in children proceedings and a helpfuloverview of many of the different conditions that we encounter within proceedings. It starts with acomprehensive glossary, which is not confined to terms that appear later in the text and which should prove tobe a valuable aid to interpretation of expert reports.

There follows a comprehensive chapter on the methodology used in psychological assessment and reporting,which is likely to be helpful in understanding which is the right type of expertise for a particular case. Thereare also sample questions for inclusion within letters of instruction, which are more practice-based, andtherefore more helpful, than the Family Justice Council version. One disadvantage of producing separatevolumes covering psychiatry and psychology (see Adult Psychiatry in Family Law (2006)) is less attention is paidto the relationship between the two disciplines, as opposed to variations in methodology within eachdiscipline.

Another section covers the use of testing within psychological assessment and descriptions of the differenttypes of test are also set out in an Appendix. This is important information, given the concerns expressed inProfessor Ireland’s 2012 report Evaluating Expert Witness Psychological Reports: Exploring Quality, whichcontained evidence that many of the tests that appear in expert psychological reports are not in fact fit for thepurpose for which they are used.

Sections II and III of the book deal with psychological conditions affecting children and adultsrespectively. Each section contains a series of short chapters, each dealing with a particular condition or groupof conditions. These chapters provide a good starting point and would help the reader to, for example, frameappropriate questions or understand the contents of a report, although they would not necessarily containenough detail if one was preparing to cross-examine an expert. Chapter 8, on attachment disorders, is shortbut clear and well-structured while Chapter 10, on defence mechanisms, provides food for thought in relationto the strategies that parents (and sometimes professionals!) use to avoid dealing with their ownshortcomings. Understanding these responses from a client may enable the lawyer to give better-targeted andmore-effective advice.

One source of disappointment was the limited coverage of learning disability, which did not reflect the centralrole that it plays in many public law proceedings. Another is the lack of depth in the chapter on substance-related disorders, which offers very little to the experienced practitioner. In contrast, the coverage ofpersonality disorder was thorough and comprehensive, with a whole chapter devoted to Borderline PersonalityDisorder, about which the author dispels a number of common misconceptions.

This book deserves a place on the child care lawyer’s bookshelf because of the breadth of its coverage, whichcovers almost all of the conditions that the practitioner is likely to encounter, and its explanation ofpsychological methods, which will help readers to understand and challenge expert reports. My initial thoughtwhen this book arrived was that it may have been published too late, because of the dramatic reduction in theuse of experts, but on reflection I think that it may even be more useful now, because the contents will help inidentifying when an expert really is needed and in then making a better-informed Part 25 application.

George Eddon



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The Law SocietyGood Practice in Child Care Cases3rd Edition

I’m sure like me you have always found room for the previous editions of this guide on your bookshelf. As thePresident points out in his foreword, this updated edition following the introduction of the Family Court andthe revised Public Law Outline is very welcome.

This book, like previous editions provides clear and well written good practice guidance for solicitorsrepresenting parties in public law Children Act proceedings. There are parts specifically written to provideguidelines and advice for those acting for each type of party, for example Part 3 is written for solicitors actingfor local authority clients. Whilst the guide looks similar to the previous edition the content has beencomprehensively updated taking into account the countless changes in the law and practice in this area since2010 (2nd Edition).

New to this edition is Part 7 which covers issues concerning legal aid and costs, providing definitive andauthoritative guidance, which is invaluable for busy practitioners.

As ever a must have purchase for all childcare lawyers regardless of experience.

Hannah Perry


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Outstanding Newcomer in the Field of Children LawALC Award 2015

Now in its eleventh year the ALC’s Outstanding Newcomer in the Field of ChildrenLaw Award in memory of David Hershman QC is looking for its 2015 winner. The aim ofthe award is to recognise the contributions of newcomers to the field of child law and toencourage them to continue to play an active role in shaping the future. Previousnominations included university students, barristers and solicitors.If you know someone whom you think is an exceptional newcomer to the field of childrenlaw then please nominate. Maybe they have demonstrated an ability for supportingclients, have researched points of law, have helped with training, developed new ideasand initiatives or represented parties in a particularly noteworthy case.

Lady Brenda Hale, will present the winner with the award on Friday 20 November atthe conference dinner in Manchester during the annual conference.

Eligibility:

• Nominees must be solicitors, barristers, trainees, pupils or students• Nominees must have been working in the field of child law for 5 years or

less.• The proposer must feel that the nominee has made a contribution to good

practice, facilitating children’s voices or the development of the field of childlaw.

How to nominate someone:

• Entries must be between 250 – 1000 words identifying relevant achievementsand/or characteristics.

• Nominations must make it clear that the nominee has been working in thefield of child law for 5 years of less.

• Nominations must include full contact details for both the nominee and theirproposer.

• Entries must be received by close of business on Monday 2nd November• Please send entries via email to [email protected]

For further details or if you have any queries please do not hesitate to contactJulia Higgins, ALC Administrator on 0208 224 7071 or by email [email protected]


Dates for your diaryKidsAid – “Voice of the Child” Conference – 7 November 2015

Lord Wilson of the Supreme Court (keynote), Mr Justice MacDonald and His Honour JudgeTony Hughes are just some of the big-hitting speakers at the ‘Voice of the Child’ conference atAlthorp House (Northamptonshire) on November 7th.

The judges, some of the country’s leading names in family law, will discuss how the needs andrights of the child can be best heard in the court system.

Shelagh Beckett, an independent social worker and national authority on sibling attachments, whois also a frequent court expert, will also speak and form part of a lively panel discussion. Dr. MartinNewman - Consultant and Hon. Senior Lecturer in Child and Adolescent Psychiatry at St George’s,University of London - and a leading authority in cases where one parent murders the other – willalso appear.

Bringing together professionals from family law, child health and psychiatry, social work andadoption the other speakers are:

Professor Sir Al Aynsley-Green, the first National Clinical Director for Children, first Children’sCommissioner for England, and President of the British Medical Association;

Professor Dieter Wolke, from the Dept. of Psychology and Division of Mental Health & WellbeingUniversity of Warwick who is a leading expert on the long-term impact of bullying;

Lisa Cherry, formerly a ‘looked after child’, now writer and speaker with huge insights about theworld of the traumatised child as well as a former social worker and Connexions worker;

Dr. Eunice Lumsden is Head of Early Years at the University of Northampton and Fellow of theHigher Education Academy; a registered Social Worker for over 20 years;

Matt Butler from New Haven Residential Treatment Center for Troubled Teen Girls, in theUnited States.

The conference, is entitled “Can you hear me? Listening to the voice of the child facing adversity”and runs from 9 a.m-4.30 p.m. It is hosted by Earl and Countess Spencer. (Lady Spencer is thePatron of KidsAid.)

Luncheon, which is part of the ticket price, is prepared by the Althorp chefs and served in the statedining room. The cost is £150, for 5.5 CPD hours and tickets can be purchased online viawww.viaeventbrite.co.uk. (kidsaid-conference)

For more information please email [email protected]

All proceeds go to the charity, which provides play-based therapies to children and young people.KidsAid, registered charity no 1122047 (England & Wales)



a

newsletterAssociation of Lawyers for Children Autumn 2015 Issue 53

Asso

ciation

of

Lawyers

for

Ch

ildren

Autumn

2015Issue

53

Annual Conference 201519 November 2015

Venue: Midland Hotel

Location: Manchester

Time: 19 – 21 November 2015

Price: £535 full residential conference for ALC members and £610 for non members.Special price for LA solicitors

CPD Points: 12 CPD hours

“Are we nearly there yet?” A Child’s Journey through the Family Justice System’ is thetitle of the 26th annual conference which will be held at the Midland Hotel in Manchester on20th November.

Rt Hon Lady Hale DBE, Deputy President of the Supreme Court will deliver this year’s keynotespeech.

Lady Hale will present the ALC’s prestigious Outstanding Newcomer in the Field of ChildrenLaw Award at the conference dinner on 20 November. If you know someone whom you think isan exceptional newcomer to the field of children law then please nominate. Maybe they havedemonstrated an ability for supporting clients, have researched points of law, have helped withtraining, developed new ideas and initiatives or represented parties in a particularly noteworthycase. Closing date for nominations is Monday 2 November. See below for the award criteria.

Go to http://alc.org.uk/uploads/Programme_(2)_2015.pdf for the Conference Programme

All bookings are made online through the conference booking link on:https://www.regonline.co.uk/Register/Checkin.aspx?EventID=1698848

ALC members received a £75 discount on the cost of the 3 day residential booking.

For queries please email Helen, Conference Administrator on [email protected] telephone 01371 705050.


Association of Lawyers for Children Autumn 2015 Issue 53

Documents

Transcript of Association of Lawyers for Children Autumn 2015 Issue 53