Category: Children

In re a local authority (Inquiry: restraint on publication); A Local Authority v A Health Authority and A: FD 27 Nov 2003

The authority had carried out an inquiry into its handling of an application for a care order. It sought to restrain republication of the report.
Held: There were competing requirements under the Convention. Any jurisdiction to restrain publication must be exercised in such circumstances only to protect the children involved. The scope to act for adults under a disability by letters patent or parens patriae had lapsed, but an inherent jurisdiction remained. Pending any statutory creation, the court would act through the common law doctrine of necessity. Here the action was required for protective rather than a custodial jurisdiction, and again the competing interests under the Convention had to be weighed. In both cases the requirements were met. For the children, and injunction was continued, and for the adults one was made. The balance came down in favour of protecting vulnerable adults by preventing publication of a local authority report: ‘They have had considerable and distressing disruption of their lives and are, as set out in the report, vulnerable. A period of peace, stability and a chance to settle down again after the very real upset of their lives is threatened by the likely intense media cover if this report is published. They are all under some disability but not such, as far as I know, as to prevent possibly all of them, but certainly at least 4 of them, from understanding the impact of press and other media intrusion. That intrusion would affect their daily lives and would be very likely to be disruptive, distressing and contrary to the need for them to settle back in the home. They clearly have rights under article 8 which are engaged and would be breached if the report is published. I am satisfied that publication of the report would be deeply damaging and detrimental to their welfare.
The factors supporting the rights of the vulnerable adults under article 8 have to be balanced against the right of the local authority to publish under article 10. I have found that it would be lawful on their behalf to interfere with the article 10 right of freedom of expression. I have considered very carefully whether to exercise the court’s discretion in favour of the vulnerable adults would be a disproportionate response to the contents of the report, having regard to the importance attached to article 10 by section 12 of the Human Rights Act 1998. I am also fully aware of the factors in favour of not restraining publication of volume 1. I am satisfied, however, that the balancing exercise comes down in favour of recognising the importance of the protection of the vulnerable adults by the granting of a declaration to that effect.’

Judges:

Dame Elizabeth Butler-Sloss P

Citations:

[2003] EWHC Fam 2746, Times 05-Dec-2003, Gazette 22-Jan-2004, [2004] EWHC 2746 (Fam), [2004] Fam 96, [2004] Fam Law 179, [2004] 1 FCR 113, [2004] 1 All ER 480, [2004] 2 WLR 926, (2004) 7 CCL Rep 426, (2004) 76 BMLR 210, [2004] BLGR 117, [2004] 1 FLR 541

Links:

Bailii

Statutes:

European Convention on Human Rights 8 10

Jurisdiction:

England and Wales

Citing:

Cited – In re F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .

Cited by:

Cited – E v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
Cited – In re PS (an Adult), Re; City of Sunderland v PS by her litigation friend the Offcial Solcicitor and CA; Re PS (Incapacitated or Vulnerable Adult) FD 9-Mar-2007
The patient an elderly lady with limited mental capacity was to be returned from hospital, but her daughter said she was to come home. The local authority sought to prevent this, wanting to return her to a residential unit where she had lived for . .
Lists of cited by and citing cases may be incomplete.

Children, Administrative, Media, Local Government, Human Rights, Information

Updated: 05 May 2022; Ref: scu.188626

In re R (Parental responsibility: IVF baby): CA 19 Feb 2003

The mother and father of the child were not married, but had consented to the terms of their infertility treatment. The father donated his sperm, but the mother was only inseminated after they had separated. The mother appealed a declaration of paternity.
Held: The Act clearly provided that the embryo was created at the time the fertilised embryo was placed in the womb. The time at issue under the Act was whether the act was ‘in the course of treatment services provided for her and a man together’. In this case, at that time, the father and mother were not together, and the biological father was not to be treated as the legal father.

Judges:

Sir Andrew Morritt VC, Hale, Dyson LJJ

Citations:

[2003] EWCA Civ 182, Gazette 03-Apr-2003, [2003] 2 All ER 131, [2003] Fam 129

Statutes:

Human Fertilisation and Embryology Act 1990 28(3), Children Act 1989 4(1)(a) 10(4)

Jurisdiction:

England and Wales

Citing:

Cited – U v W (Attorney-General Intervening) FD 4-Mar-1997
The restriction on the freedom to provide human fertility treatment to licensees of the Authority was not a breach of the EU treaty. There is a particular need for certainty in provisions affecting the status of a child. There is a mental element . .
Appeal from – B and D v R FD 22-Feb-2002
The parties were unmarried but entered into IVF treatment together. They separated, but the mother continued with treatment, not telling the IVF center of the breakdown of the first relationship, and nor of her new relationship until after the . .

Cited by:

Cited – Evans v Amicus Healthcare Ltd and others CA 25-Jun-2004
The applicant challenged the decision of the court that the sperm donor who had fertilised her eggs to create embryos stored by the respondent IVF clinic, could withdraw his consent to their continued storage or use.
Held: The judge worked . .
Appeal from – In Re R (Parental responsibility: IVF baby); D (A Child), Re HL 12-May-2005
The parents had received IVF treatment together, but had separated before the child was born. The mother resisted an application by the father for a declaration of paternity.
Held: The father’s appeal failed. The Act made statutory provision . .
Lists of cited by and citing cases may be incomplete.

Family, Children

Updated: 05 May 2022; Ref: scu.179542

Oldham Metropolitan Borough Council v E and Others: CA 16 Mar 1994

The judge need not decide on the outcome of a residence order application before going on to consider a care order. There was no necessary order of consideration. A care order should not normally be made to Local Authority if a capable family member will take child.

Citations:

Independent 13-Apr-1994, Times 16-Mar-1994, [1994] 1 FLR 568 CA

Statutes:

Children Act 1989 32(1)

Jurisdiction:

England and Wales

Cited by:

Overruled – Re M (A Minor) (Care Orders: Threshold Conditions) HL 7-Jun-1994
The father had been sentenced to life imprisonment for the murder of the child’s mother. Application was made for the child to be made subject to a care order. The father appealed refusal of an order.
Held: When an application was made on the . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 05 May 2022; Ref: scu.84440

Re E (Children) (Abduction: Custody Appeal): SC 10 Jun 2011

Two children were born in Norway to a British mother (M) and Norwegian father (F). Having lived in Norway, M brought them to England to stay, but without F’s knowledge or consent. M replied to his application for their return that the children would be at risk if returned, alleging psychological abuse by F. She argued that article 13(b) of the 1980 convention should be applied against the background of article 3.1 of 1989 Convention so as to make the welfare of the children paramount. M appealed against rejection of her claim.
Held: The appeal failed. The court considered the interaction of the Hague Covention on Child Abduction and the Human Rights Convention after the decision in Neulinger in which the Grand Chamber had given preference to the latter. Both the Hague Convention and the Brussels II revised Regulation have been devised with the best interests of children generally, and of the individual children involved in such proceedings, as a primary consideration. The 1980 Convention set out to serve children’s interests with a summary remedy to allow their return to their home country where the matter could be looked at fully. It did so by making certain assumptions, though with safeguards. The Neulinger case appeared now to invite consideration of the circumstances before a child’s return, but a gloss had since been provided that ‘the logic of the Hague Convention is that a child who has been abducted should be returned to the jurisdiction best-placed to protect his interests and welfare, and it is only there that his situation should be reviewed in full.’ In the light of this and the judge’s findings that M and the children would receive protection in Norway, the appeal was rejected.
The exceptions required to resists summary return should be applied strictly and without further judicial gloss.
‘the whole of the Hague Convention is designed for the benefit of children, not of adults. The best interests, not only of children generally, but also of any individual child involved are a primary concern in the Hague Convention process. We agree with the Strasbourg court that in this connection their best interests have two aspects: to be reunited with their parents as soon as possible, so that one does not gain an unfair advantage over the other through the passage of time; and to be brought up in a ‘sound environment’, in which they are not at risk of harm. The Hague Convention is designed to strike a fair balance between those two interests. If it is correctly applied it is most unlikely that there will be any breach of article 8 or other Convention rights unless other factors supervene. Neulinger does not require a departure from the normal summary process, provided that the decision is not arbitrary or mechanical. The exceptions to the obligation to return are by their very nature restricted in their scope. They do not need any extra interpretation or gloss.’
Baroness Hale and Lord Wilson observed: ‘The first object of the Convention is to deter either parent (or indeed anyone else) from taking the law into their own hands and pre-empting the result of any dispute between them about the future upbringing of their children. If an abduction does take place, the next object is to restore the children as soon as possible to their home country, so that any dispute can be determined there. The left-behind parent should not be put to the trouble and expense of coming to the requested state in order for factual disputes to be resolved there. The abducting parent should not gain an unfair advantage by having that dispute determined in the place to which she has come.’

Judges:

Lord Hope, Deputy President, Lord Walker, Lady Hale, Lord Kerr, Lord Wilson

Citations:

[2011] UKSC 27, UKSC 2011/0084, [2011] 2 WLR 1326, [2011] 2 FCR 419, [2012] 1 AC 144, [2011] Fam Law 919, [2011] 2 FLR 758, [2011] UKHRR 701, [2011] HRLR 32, [2011] 4 All ER 517

Links:

Bailii, Bailii Summary, SC Summary, SC

Statutes:

United Nations Convention on the Rights of the Child 1989, Hague Convention on the Civil Aspects of International Child Abduction 1980, European Convention on Human Rights 8, Child Abduction and Custody Act 1985

Jurisdiction:

England and Wales

Citing:

Cited – TB v JB (Formerly J H) (Abduction: Grave Risk of Harm) CA 19-Dec-2000
The father appealed against rejection of his claim for the return of his three children to New Zealand. . .
Appeal From – Eliassen and Another v Eliassen and Others CA 1-Apr-2011
M (British) and F (Norwegian) had their two daughters in Norway. M removed them to England saying that she feared F’s alleged psychological abuse of the children. She now appealed against an order for their return arguing that the exception to the . .
Cited – In re D (A Child), (Abduction: Rights of Custody) HL 16-Nov-2006
The child had been born to parents who married and later divorced in Romania. The mother brought him to England without the father’s consent, and now appealed an order for his return.
Held: The mother’s appeal succeeded. The Convention . .
Cited – ZH (Tanzania) v Secretary of State for The Home Department SC 1-Feb-2011
The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .
Cited – Re M and another (Children) (Abduction; Rights of Custody) HL 5-Dec-2007
Three children had been brought from Zimbabwe by their mother against the wishes of the father and in breach of his rights there. The mother appealed an order for their return.
Held: The mother’s appeal was allowed. The House had to consider . .
Cited – Neulinger And Shuruk v Switzerland ECHR 6-Jul-2010
(Grand Chamber) The Swiss Court had rejected the claimant mother’s claim, under article 13b of the Hague Convention, that there was a grave risk that returning the child to Israel would lead to physical or psychological harm or otherwise place him . .
Cited – Maumousseau and Washington v France ECHR 6-Dec-2007
The child’s mother (M) complained that the effective operation of the Hague Convention, in ordering the return of the applicant’s daughter to her habitual residence in the United States, M having taken her to France for the holidays and refused to . .
Cited – Daniela Lipkowsky And India Dawn McCormack v Germany ECHR 18-Jan-2011
. .
Cited – Miranda Van Den Berg And Noa Sarri v The Netherlands ECHR 2-Nov-2010
A mother was complaining that the Dutch courts had ordered the return of her daughter and had rejected her case under article 13b. . .
Cited – Raban v Romania ECHR 26-Oct-2010
The father complained that the Romanian courts had not ordered the return of his daughter when in his view they should have done. . .

Cited by:

Cited – Castle and Others v Commissioner of Police for The Metropolis Admn 8-Sep-2011
The claimants, all under 17 years old, took a peaceful part in a substantial but disorderly demonstration in London. The police decided to contain the section of crowd which included the claimants. The claimants said that the containment of children . .
Cited – Re S (A Child) SC 14-Mar-2012
The mother appealed against an order confirmed by the Court of Appeal for the return of her child to Australia. The mother and father had cohabited in Sydney, before M returned with S without F’s consent or the permission of an Australian court. The . .
Cited – Re C (Children) SC 14-Feb-2018
‘This appeal concerns the Hague Convention on the Civil Aspects of International Child Abduction. It raises general questions relating to:
(1) the place which the habitual residence of the child occupies in the scheme of that Convention, and . .
Cited – In re NY (A Child) (Reunite International and others intervening) SC 30-Oct-2019
The father had applied for a summary order requiring the return of the daughter to Israel. The Court was asked to consider whether the Court of Appeal, having determined that such an order could not be granted under the Hague Convention on the Civil . .
Lists of cited by and citing cases may be incomplete.

Children, Human Rights, International

Updated: 05 May 2022; Ref: scu.440571

In re X, (Emergency Protection Orders): FD 16 Mar 2006

Within two hours of a case conference which mentioned possible removal of children, but agreed other steps, the local authority applied for an emergency protection order, and forcibly removed the child from the family.
Held: The decision making processes adopted by both the authority and the family court were badly flawed. An Emergency Protection Order was potentially harsh in its effect, and one should not be granted unless it was clear that no alternative existed which would satisfy the need to secure the child’s welfare. The social worker had presented thirteen points to the magistrates. Each point had been either misleading or wrong. The magistrates had not given adequate reasons and had not treated what was a most important decision properly. The court gave specific guidance for the conduct of future cases.
McFarlane J said: ‘The ordinary experience of the family courts is of social workers and social services departments whose professional work is both valuable and appropriately targeted to meeting the particular needs of children and their families.’ and: ‘ Given the work that has gone into preparing authoritative national and local guidance upon cases of induced or fabricated illness, the court is entitled to expect that when a social work team manager asserts in evidence that this is a case of ‘Munchausen’s syndrome by proxy’ or ‘factitious illness syndrome’ (depending on which note of evidence is correct) the social work team has acted in accordance with the guidance and that the assertion being made is backed up by paediatric opinion.’

Judges:

MacFarlane J

Citations:

[2006] EWHC 510 (Fam), Times 21-Apr-2006, [2006] 2 FLR 701

Links:

Bailii

Statutes:

Children Act 1989

Jurisdiction:

England and Wales

Citing:

Cited – S v Oxfordshire County Council FD 1993
The failure by magistrates to give reasons for making an order is a serious deficiency and should occur only exceptionally: ‘It would be unjust to this child to allow a decision to stand which so affected his future without at least understanding . .
Applied – X Council v B (Emergency Protection Orders) FD 16-Aug-2004
Munby J reviewed the grant of Emergency Protection Orders, and summarised the applicable law: ‘The matters I have just been considering are so important that it may be convenient if I here summarise the most important points:
(i) An EPO, . .
Cited – P, C and S v United Kingdom ECHR 2002
The local authority had obtained the issue of an Emergency Protection Order under the 1989 Act to remove a child at birth.
Held: Where the possibility of harm arose from the mother introducing something into the child’s system (such as a . .
Cited – Stray v Stray 1999
. .
Cited – T v W (Contact: Reasons for Refusing Leave) 1996
. .

Cited by:

Cited – Durham County Council v D and others FD 11-Jun-2008
Having given his judgment in private in a very complex matter, Munby J went out of his way to publicise his admiration for the work of the professionals involved. . .
Approved – A v East Sussex County Council and Chief Constable of Sussex Police CA 2-Jul-2010
A appealed against the dismissal of her claim for damages under the 1998 Act after the defendants had taken action anticipating possible abuse of her baby child. The baby had been returned after the suspicions were allayed. She complained that the . .
Cited – In re T (Children) SC 25-Jul-2012
The local authority had commenced care proceedings, alleging abuse. After lengthy proceedings, of seven men and two grandparents, all but one were exonerated. The grandparents had not been entitled to legal aid, and had had to mortgage their house . .
Cited – HB v PB FD 9-Jul-2013
Claim for costs against third party local authority, Croydon LBC after four day private law fact finding hearing. F said that M had fabricated illnesses both in herself and the child leading to the LA being asked to prepare a report. That report . .
Lists of cited by and citing cases may be incomplete.

Local Government, Children

Updated: 05 May 2022; Ref: scu.239291

In re NY (A Child) (Reunite International and others intervening): SC 30 Oct 2019

The father had applied for a summary order requiring the return of the daughter to Israel. The Court was asked to consider whether the Court of Appeal, having determined that such an order could not be granted under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (‘the Convention’), was nonetheless entitled to grant it under the inherent jurisdiction of the High Court to make orders in relation to children. The Israeli parents lived in England. F returned to Israel and sought an order based on M’s alleged wrongful detention of D in England. M’s appeal succeeded on the basis of the Court of Appeal exercising its inherent jurisdiction to order the return. M now appealed.
Held: The Court had had jurisdiction, but the decision applying it was flawed.
The statement in 1.1 of Practice Direction 12D that the inherent jurisdiction should only be invoked where the issues cannot be resolved under the 1989 Act, went too far. Neither at first instance, nor on appeal had the court inquire as to the child’s welfare requiring return under the inherent jurisdiction. The Court of Appeal could not itself exercise the inherent jurisdiction without M having notice of it and having proper opportunity to argue the issue.

Judges:

Lord Wilson, Lord Hodge, Lady Black, Lord Kitchin, Lord Sales

Citations:

[2019] UKSC 49, [2019] 2 FLR 1247, [2019] WLR(D) 601, [2019] 3 WLR 962, [2020] AC 665, [2020] 1 All ER 923, [2020] 1 FCR 56, UKSC 2019/0145

Links:

Bailii, Bailii Summary, WLRD, SC 2019 Jul 18 pm Video, SC Summary, SC Summary Video, SC 2019 Jul 18 am Video

Statutes:

Hague Convention on the Civil Aspects of International Child Abduction 1980, Child Abduction and Custody Act 1985, Children Act 1989, Family Procedure Rules 2010

Jurisdiction:

England and Wales

Citing:

Appeal from – NY (A Child : 1980 Hague Abduction Convention : Inherent Jurisdiction) CA 18-Jun-2019
M appealed from an order ordering the summary return of a girl to Israel. . .
At FD – TY v HY (Return Order) FD 17-Apr-2019
F sought a summary order for the return of his 2 year old daughter to Israel. M claimed habitual residence within the UK.
Held: The court had ‘considerable concerns regarding the credibility of the mother’s evidence’. She made several . .
Cited – Re E (Children) (Abduction: Custody Appeal) SC 10-Jun-2011
Two children were born in Norway to a British mother (M) and Norwegian father (F). Having lived in Norway, M brought them to England to stay, but without F’s knowledge or consent. M replied to his application for their return that the children would . .
Cited – Re KL (A Child) SC 4-Dec-2013
How should the courts of this country react when a child is brought here pursuant to an order made abroad in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction which is later over-turned on appeal? K was a . .
Cited – KW v PW 2-Sep-2016
Irish High Court O’Hanlon J said: ‘This Court finds that the inherent jurisdiction is not applicable in this case. The inherent jurisdiction exists to fill a lacuna in the law and there is no lacuna here. To use the inherent jurisdiction to make an . .

Cited by:

Cited – V v W FC 2-Dec-2020
FDR Appointment Must Remain Confidential
XYZ had been appointed to value a family company within financial relief proceedings, but on seeking payment of their fees, and facing a counterclaim alleging negligence, they sought disclosure of the transcript of the Financial Dispute Resolution . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 05 May 2022; Ref: scu.642828

Re KL (A Child): SC 4 Dec 2013

How should the courts of this country react when a child is brought here pursuant to an order made abroad in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction which is later over-turned on appeal? K was a child born in Texas and a US citizen. His father was a US citizen, and his mother of Ghanaian origin wih UK right of residence. After the marriage breakdown, M brought K to the UK, but a US court ordered his return to the US to be with his father. M appealed saying that K’s habitual residence was the UK. She succeeded, and returned with K to England. F appealed successfully, and asked the UK court to order his return again to the US.
Held: On F undertaking to make provision for M to live in Texas, the court ordered K to be returned to the US.
Habitual residence is not defined in the Convention, but UK (and European law) is that it is a question of fcat reflecting the extent of any settled integration by the child in a social and family environment. The parents’ intentions are part of this.
The judge had been entitled to hold as he had that K was habitually resident in the UK. The Convention alone would therefore not have entitled him to an order. However, the court retained a common law power to make the necessary order given the undertakings offered by the father.
Otherwise: In re L (A Child) (Custody: Habitual Residence)

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Wilson, Lord Hughes, Lord Hodge

Citations:

[2013] UKSC 75, [2014] 1 AC 1017, [2014] 1 FLR 772, [2014] Fam Law 266, [2013] 3 WLR 1597, [2014] 1 All ER 999, [2014] 1 FCR 69, [2013] WLR(D) 475, UKSC 2013/0212

Links:

Bailii, Bailii Summary, SC Summary, SC, WLRD

Statutes:

Hague Convention on the Civil Aspects of International Child Abduction, Family Law Act 1986

Jurisdiction:

England and Wales

Citing:

Cited – Mercredi v Richard Chaffe (Area of Freedom, Security And Justice) ECJ 22-Dec-2010
ECJ Judicial cooperation in civil matters – Regulation (EC) No 2201/2003 – Matrimonial matters and parental responsibility – Child whose parents are not married – Concept of ‘habitual residence’ of an infant – . .
Appeal from – DL v EL CA 16-Jul-2013
M had returned to the UK with her child on the strength of a US court order. F appealed successfully and now sought an order from the UK court for the return of the child.
Held: F’s appeal against refusal of an order failed. Acting under the . .
At First Instance – DL v EL (Hague Abduction Convention: effect of reversal of return order on appeal) FD 17-Jan-2013
F sought the return of his son K to the US. K had been brought here by M after a court order in the US,but the father subsequently appealed sucessfully, obtaining an order for K’s return. M said that the UK court had originally and correctly found K . .
Cited – A (Area of Freedom, Security and Justice) ECJ 2-Apr-2009
ECJ Judicial co-operation in civil matters – Jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility – Regulation (EC) No 2201/2003 . .
Cited – In re J (a Minor) (Abduction: Custody rights) HL 1-Jul-1990
On 21 March 1990 the mother removed the child, aged two, from Australia, where he had been habitually resident, to England with the intention of permanently residing here. She did so without the knowledge of the father who also resided in Australia . .
Cited – In Re S (Minors) (Convention On the Civil Aspects of International Child Abduction) FD 21-Jul-1993
(Child Abduction: Wrongful Retention) A failure by a parent to return a child to his country of residence can constitute a wrongful retention under the Convention. Where both parents have equal status in relation to the child, one parent can not . .
Cited – A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
Cited – In Re M (A Minor) (Habitual Residence) CA 3-Jan-1996
An habitual residence dispute is a dispute on a matter of fact not of law. It cannot be settled by the choice of the parents. A child cannot acquire habitual residence in a country without actually being physically present in that country. . .
Cited – McKee v McKee PC 15-Mar-1951
(Canada) There was a choice open to the trial judge facing a contest for the custody of a child: ‘It is possible that a case might arise in which it appeared to a court, before which the question of custody of an infant came, that it was in the best . .
Cited – In Re K (Abduction: Consent: Forum Conveniens) 1995
An application was made to stay proceedings here for the return of a child to the other parent’s country of jurisdiction on the ground that the question has already been determined, or that it is more appropriate for it to be determined, in . .
Cited – Re J (A Child), Re (Child returned abroad: Convention Rights); (Custody Rights: Jurisdiction) HL 16-Jun-2005
The parents had married under shariah law. They left the US to return to the father’s home country Saudi Arabia. They parted, and the mother brought their son to England against the father’s wishes and in breach of an agreement. The father sought . .

Cited by:

Cited – AR v RN (Scotland) SC 22-May-2015
The court was asked whether it should order the return to France of two little girls who have been living with their mother in Scotland since July 2013. The issue arose under article 3 of the 1980 Hague Convention on the Civil Aspects of . .
Cited – In re NY (A Child) (Reunite International and others intervening) SC 30-Oct-2019
The father had applied for a summary order requiring the return of the daughter to Israel. The Court was asked to consider whether the Court of Appeal, having determined that such an order could not be granted under the Hague Convention on the Civil . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 05 May 2022; Ref: scu.518638

HB v PB: FD 9 Jul 2013

Claim for costs against third party local authority, Croydon LBC after four day private law fact finding hearing. F said that M had fabricated illnesses both in herself and the child leading to the LA being asked to prepare a report. That report failed to allow for established guidance on the topic, leading to the abandonment of a listing to hear the case.
Held: ‘The failings outlined above (and, in fairness, to some extent conceded by Mr. Calway) comfortably carry this case over the ‘exceptionality’ threshold. The consequence of the Local Authority’s failure to comply appropriately with the direction of the Court was the inevitable abandonment of the fact-finding hearing in December 2012, the requirement for a further directions hearing, and the consequent delay (with its financial and emotional cost to the parties) in re-listing it ‘

Judges:

Cobb J

Citations:

[2013] EWHC 1956 (Fam), [2013] PTSR 1579, [2016] 1 FLR 92, [2015] Fam Law 371, [2013] 5 Costs LR 738, [2013] 3 FCR 318, [2013] Fam Law 1258

Links:

Bailii

Statutes:

Children Act 1989, Family Procedure Rules 2010 28.1, Senior Courts Act 1981 51(1)

Jurisdiction:

England and Wales

Citing:

Cited – Aiden Shipping Co Ltd v Interbulk Ltd (The ‘Vimeira’) HL 1986
Wide Application of Costs Against Third Party
A claim had been made against charterers by the ship owners, and in turn by the charterers against their sub-charterers. Notice of motion were issued after arbitration awards were not accepted. When heard, costs awards were made, which were now . .
Cited – Symphony Group Plc v Hodgson CA 4-May-1993
A section 51 non-party costs application should not be used as a substitute for the pursuit of a related cause of action against the non-party in ordinary proceedings. Nine rules were set out for allowing a costs order against someone who is not a . .
Cited – A and S (Children) v Lancashire County Council FD 17-Apr-2013
The children applied for their costs. They had been made subject of freeing orders on the application of the respondent, but had then successfully appealed against the orders, saying that their human rights had been infringed. . .
Cited – Northampton Health Authority v The Official Solicitor and the Governors of St Andrews Hospital 1994
. .
Cited – In re T (Children) SC 25-Jul-2012
The local authority had commenced care proceedings, alleging abuse. After lengthy proceedings, of seven men and two grandparents, all but one were exonerated. The grandparents had not been entitled to legal aid, and had had to mortgage their house . .
Cited – London Borough of Sutton v Davis (Costs) (No 2) 1994
In cases involving children costs awarded against one parent or another are exceptional since the court is anxious to avoid the situation where a parent may feel ‘punished’ by the other parent which will reduce co-operation between them. This will . .
Cited – Kelly v South Manchester Health Authority 1997
A costs order was sought against the Legal Aid Board.
Thomas J. said: ‘In my judgment, the courts do have power in an appropriate and exceptional case to make an order in respect of costs against the board under section 51(1); the role of the . .
Cited – Globe Equities Ltd v Globe Legal Services Ltd and others CA 5-Mar-1999
The defendant’s solicitors appealed an order making them liable for costs in defending an action brought by the landlord. . .
Cited – Coventry City Council v X, Y and Z (Care Proceedings: Costs: Identification of Local Authority) FD 27-Sep-2010
Order made for identification of local authority criticised in care proceedings and order for costs. . .
Cited – Providence Capitol Trustees Ltd v Ayres ChD 1996
If the Pensions Ombudsman takes part in an appeal and makes himself a party to the lis, he is at risk as to the costs of the appeal. It may be appropriate to make an application before the main hearing to settle such issues. The ombudsman will only . .
Cited – Palmer v The Estate of Kevin Palmer Deceased and others CA 6-Feb-2008
The judge had concluded that the insurers’ conduct of an unsuccessful defence was sufficiently self-motivated to make it the real defendant in all but name, and the Court of Appeal dismissed the appeal against an order that it be liable in costs as . .
Cited – Dolphin Quays Developments Ltd v Mills and others ChD 17-May-2007
Order for costs against a third party . .
Cited – Metalloy Supplies Ltd (In Liquidation) v MA (UK) Ltd CA 7-Oct-1996
A costs order against liquidator of company in litigation is only rarely to be given. The court should ask who is the ‘real’ party to the litigation.
Millett LJ said: ‘[An order] may be made in a wide variety of circumstances where the third . .
Cited – In re X, (Emergency Protection Orders) FD 16-Mar-2006
Within two hours of a case conference which mentioned possible removal of children, but agreed other steps, the local authority applied for an emergency protection order, and forcibly removed the child from the family.
Held: The decision . .
Cited – Secretary of State for Trade and Industry v Backhouse CA 26-Jan-2001
A non-party costs order was made against the director, because the defence to the petitions was not conducted in the bona fide belief that it was in the interests of the companies. Instead the director, who had treated the companies’ money as his . .
Cited – Goodwood Recoveries Ltd v Breen CA 19-Apr-2005
A claim against the defendant for money owed to someone else had been bought by the claimant of which Slater, a solicitor, was a director and shareholder. The claim was pursued in the name of the claimant by Slater as its solicitor and principal . .
Cited – Phillips, Harland (Suing As Administrators of the Estate of Christo Michailidis), Papadimitriou v Symes (A Bankrupt) Robin Symes Limited (In Administrative Receivership) Jean-Louis Domercq ChD 20-Oct-2004
Dr Z had given expert evidence in the principal proceedings. It was now said that that evidence had not been given in the proper way, and a remedy was now sought in costs.
Peter Smith J had held that: ‘It seems to me that in the administration . .
Cited – Phillips v Symes CA 2003
Courts should be reluctant to exclude altogether evidence merely because it is written. If the purpose of the order sought was to trace assets it would be wrong to permit cross-examination which was designed to show that there had been a contempt of . .
Lists of cited by and citing cases may be incomplete.

Costs, Children

Updated: 05 May 2022; Ref: scu.512445

Portman Registrars v Mohammed Latif: 1987

A minor can succeed to a statutory tenancy under the Rent Acts. A statutory tenancy is not an interest in land and a minor does have the capacity to contract for necessaries such as lodging.

Citations:

[1987] 6 CL 217

Cited by:

Cited – Royal Borough of Kingston Upon Thames v Prince and Another CA 2-Dec-1998
The Borough’s tenant had died. His wife and daughter had lived with him, but the mother not for long enough to succeed to his tenancy. The daughter (aged thirteen) claimed to have done so having lived with him for three years.
Held: The 1985 . .
Lists of cited by and citing cases may be incomplete.

Housing, Children

Updated: 04 May 2022; Ref: scu.259629

Re K (A Minor) (Ward: Care and Control): CA 1990

Waite J said: ‘The speeches in the House of Lords make it plain that the term ‘parental right’ is not there used in a proprietary sense, but rather as describing the right of every child, as part of its general welfare, to have the ties of nature maintained, wherever possible, with the parents who gave it life.’ but ‘Are there any compelling factors which require me to override the prima facie right of this child to an upbringing by its surviving natural parent?’

Judges:

Fox LJ, Waite J

Citations:

[1990] 1 WLR 431, [1990] 3 All ER 795, [1990] Fam Law 256

Jurisdiction:

England and Wales

Cited by:

Cited – In Re G (A Minor) (Interim Care Order: Residential Assessment); G (Children), In Re (Residence: Same Sex Partner) HL 26-Jul-2006
The parties had been a lesbian couple each with children. Each now was in a new relationship. One registered the two daughters of the other at a school now local to her but without first consulting the birth mother, who then applied for residence . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 04 May 2022; Ref: scu.244485

Re P (A Minor)(Custody): 1983

Citations:

[1983] 4 FLR 401

Jurisdiction:

England and Wales

Cited by:

Cited – CG v CW and Another (Children) CA 6-Apr-2006
A lesbian couple had split up and disputed the care of the children. An order had been made but then, in breach of that order, one removed the children overnight to Cornwall. An argument was made that the court had failed to give proper weight to . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 04 May 2022; Ref: scu.240126

In re T (Children): SC 25 Jul 2012

The local authority had commenced care proceedings, alleging abuse. After lengthy proceedings, of seven men and two grandparents, all but one were exonerated. The grandparents had not been entitled to legal aid, and had had to mortgage their house for legal costs. Despite being exonerated, the judge followed the normal practice of not awarding costs in children cases. The Court of Appeal made an order for costs, and the Authority now appealed.
Held: The appeal succeeded. There should be no exception to the general rule of not awarding costs save in case of reprehensible proceedings merely because the hearing had been a discrete fact finding hearing.
The fundamental reason for the difference from other civil proceedings was the absence of the adversarial approach. Care proceedings will usually involve allegations of misconduct. The decision to hold a split hearing was a case management one, and could not found a difference of approach. That injustice might flow where a party could not receive legal aid, was not a reason for transferring a perceived deficiency in public funding onto the local authority. The authority were acting under a public law duty to investigate allegations of child abuse in a role akin to that of a prosecuting authority.
Otherwise: Re T (Children: Care Proceedings: Serious Allegations Not Proved)

Judges:

Lord Phillips (President), Lady Hale, Lord Mance, Lord Dyson, Lord Carnwath

Citations:

[2012] UKSC 36, UKSC 2010/0244, [2012] Fam Law 1325, [2012] 3 FCR 137, [2012] 5 Costs LR 914, [2012] PTSR 1379, [2012] WLR(D) 223, [2012] 1 WLR 2281

Links:

Bailii, Bailii Summary, SC Summary, SC, WLRD

Statutes:

Family Procedure Rules 2010 (SI 2010/2955) 1.2

Jurisdiction:

England and Wales

Citing:

Cited – Sutton London Borough Council v Davis (Number 2) FD 8-Jul-1994
The local authority had refused to register a childminder, who successfully appealed to the magistrates, who awarded costs in her favour. The local authority appealed against the costs order. In doing so the authority urged the court to apply, by . .
Appeal from – In re T (A Child) CA 18-Nov-2010
Paternal grandparents appealed against a refusal to make an order for costs in their favour against the local authority. The refusal was made in the course of care proceedings brought by the local authority in relation to two grandchildren. The . .
Cited – B (M) v B (R) (Note) CA 1968
The court suggested that it would have been wrong to make an order for costs in a custody dispute because it would exacerbate the feelings between the parents to the ultimate detriment of the child. . .
Cited – Gojkovic v Gojkovic (No 2) CA 1-Apr-1991
In ancillary relief proceedings, the husband had not made frank disclosure of his assets. The final Calderbank offer of andpound;600,000 was made only the day before the substantive hearing. The offer was rejected. The judge awarded the wife a lump . .
Cited – In re J (Children) (Costs of Fact-Finding Hearing) CA 26-Oct-2009
Mother and father disputed contact. The district judge held a fact finding hearing to resolve allegations of violence made by the mother and denied by the father. Most of the mother’s allegations were held to be established and she sought the costs . .
Cited – In Re M (A Minor) (Local Authority’s Costs) FD 9-Jan-1995
The local authority applied for permission to refuse contact between two children and their parents. The magistrates refused the application and ordered the local authority to pay the father’s costs. The authority appealed.
Held: The appeal . .
Cited – R v R (Costs: Child Case); In re R (a Minor) CA 5-Dec-1996
The court analysed the reasons why costs orders were generally not made in cases involving children. . .
Cited – In re X, Y, Z (Minors) FD 18-May-2011
Costs on disputed care proceedings. Local Authority acting unreasonably in disclosure failings. Baker J rejected an application for costs against a local authority by an intervener who had been wholly exonerated in a fact finding hearing that was . .
Cited – In re R (Care: disclosure: nature of proceedings) FD 2002
In care proceedings, unproved allegations of harm were abandoned, before being rejected by the court. The threshold criteria were satisfied on a different ground, namely, neglect and emotional harm.
Held: As matters stood the local authority . .
Cited – In re X, (Emergency Protection Orders) FD 16-Mar-2006
Within two hours of a case conference which mentioned possible removal of children, but agreed other steps, the local authority applied for an emergency protection order, and forcibly removed the child from the family.
Held: The decision . .
Cited – In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL 11-Jun-2008
Balance of probabilities remains standard of proof
There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
Cited – Manchester City Council v G and Others CA 2-Aug-2011
The Council had been found to have wrongfully deprived the applicant of his liberty. They appealed now against an award of costs made against them.
Held: The appeal failed. The judge the power to depart from the usual order made under rule 157 . .
Cited – Coventry City Council v X, Y and Z (Care Proceedings: Costs: Identification of Local Authority) FD 27-Sep-2010
Order made for identification of local authority criticised in care proceedings and order for costs. . .
Cited – G v E and Others FD 21-Dec-2010
(Court of Protection) Baker J awarded costs against a local authority which had been guilty of misconduct which, he held, justified departure from the general rule. He observed: ‘Parties should be free to bring personal welfare issues to the Court . .
Cited – M v London Borough of Croydon CA 8-May-2012
The court considered the proper approach to the award of costs in judicial review proceedings.
Held: The position should be no different for litigation in the Administrative Court from what it is in general civil litigation. . .

Cited by:

Cited – Re S (A Child) SC 25-Mar-2015
The Court was asked as to the proper approach to ordering the unsuccessful party to pay the costs of a successful appeal in cases about the care and upbringing of children. It arises in the specific context of a parent’s successful appeal to the . .
Cited – HB v PB FD 9-Jul-2013
Claim for costs against third party local authority, Croydon LBC after four day private law fact finding hearing. F said that M had fabricated illnesses both in herself and the child leading to the LA being asked to prepare a report. That report . .
Lists of cited by and citing cases may be incomplete.

Children, Costs

Updated: 04 May 2022; Ref: scu.463147

Coventry City Council v X, Y and Z (Care Proceedings: Costs: Identification of Local Authority): FD 27 Sep 2010

Order made for identification of local authority criticised in care proceedings and order for costs.

Judges:

Clifford Bellamy J

Citations:

[2010] EWHC B22 (Fam), [2011] 1 FLR 1045

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – In re T (Children) SC 25-Jul-2012
The local authority had commenced care proceedings, alleging abuse. After lengthy proceedings, of seven men and two grandparents, all but one were exonerated. The grandparents had not been entitled to legal aid, and had had to mortgage their house . .
Cited – HB v PB FD 9-Jul-2013
Claim for costs against third party local authority, Croydon LBC after four day private law fact finding hearing. F said that M had fabricated illnesses both in herself and the child leading to the LA being asked to prepare a report. That report . .
Lists of cited by and citing cases may be incomplete.

Children, Litigation Practice

Updated: 04 May 2022; Ref: scu.424945

Re T (Minors) (Custody: Religious Upbringing): CA 1975

(From 1975) Scarman LJ discussed the way courts should allow for religious beliefs (here the Jehovah’s Witnesses) in the context of a child’s welfare, saying that they deserved respect where they were not ‘immoral or socially obnoxious’ and: ‘there is a great risk, merely because we are dealing with an unpopular minority sect, in overplaying the dangers to the welfare of these children inherent in the possibility that they may follow their mother and become Jehovah’s Witnesses. Of course, most of us like to play games on Saturdays, to go out to children’s parties and to have a quiet Sunday – some of us will go to church, and some of us will not. This appears to be the normal and happy, even though somewhat materialistic, way of life, accepted by the majority of people in our society. It does not follow, however, that it is wrong, or contrary to the welfare of children, that life should be in a narrower sphere, subject to a stricter religious discipline’
Scarman LJ spoke very strongly and positively about the lives which Jehovah’s Witnesses lead and of the fact that they are to be respected.

Judges:

Scarman LJ

Citations:

(1981) 2 FLR 239

Jurisdiction:

England and Wales

Cited by:

Cited – Re X (A Child) FD 29-Oct-2020
Limited transfusion against young adults wishes
The Court was asked whether a blood transfusion should be administered to a young woman who was almost, not quite, 16, against her profound religious beliefs. X is a Jehovah’s Witness. She has explained to me, in very powerful and moving words, the . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 04 May 2022; Ref: scu.656347

In Re D (Child: Threshold Criteria): CA 13 Oct 2000

There had been an arrangement for a split hearing of an application for a care order. At the first hearing a statement had been agreed as to the terms upon which the threshold criteria had been met. However the expert could not base his decision upon that agreed statement, and the authority applied to re-open the issue of the extent and manner in which the threshold criteria had been met. The mother resisted, but the court, it was held, was correct to allow the issue to be re-opened despite the fact that no new facts had emerged and the agreement. It was necessary to promote the welfare of the child.

Citations:

Times 13-Oct-2000

Statutes:

Children Act 1989 31

Jurisdiction:

England and Wales

Children

Updated: 04 May 2022; Ref: scu.81825

Z, Re (A Child: Deprivation of Liberty: Transition Plan): FD 12 Nov 2020

The local authority applied pursuant to s.100 of the Children Act 1989 for permission to invoke the inherent jurisdiction in order that a young person, Z, might be deprived of their liberty in order to convey them from their family home to a residential school.

Judges:

Mrs Justice Knowles

Citations:

[2020] EWHC 3038 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Children, Human Rights

Updated: 04 May 2022; Ref: scu.656346

SS v MCP: FD 6 Nov 2020

Father’s application for an order under the inherent jurisdiction of the High Court for the summary return of P from India, consideration of the mother’s application for a specific issue order

Judges:

Mr Justice Mostyn

Citations:

[2020] EWHC 2971 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Children

Updated: 04 May 2022; Ref: scu.656345

AC v Manitoba (Director of Child and Family Services): 26 Jun 2009

(Supreme Court of Canada) Constitutional law – Charter of Rights – Liberty and security of person – Fundamental justice – Medical treatment – Child under 16 years of age refusing blood transfusions because her religion requires that she abstain from receiving blood – Transfusion necessary to avoid severe consequences to child’s health – For child under 16, provincial child and family services legislation authorizing court to order treatment that it considers in best interests of child – For child 16 and over, no medical treatment can be ordered by court without child’s consent unless court satisfied that child lacks ability to understand relevant information or consequences of treatment decision – Whether legislation arbitrary because it deprives children under 16 of opportunity to demonstrate capacity – Whether legislation infringes child’s liberty and security interests in manner contrary to principles of fundamental justice – Canadian Charter of Rights and Freedoms, s. 7 – Child and Family Services Act, C.C.S.M. c. C80, s. 25(8), (9).

Constitutional law – Charter of Rights – Equality rights – Discrimination on basis of age – Child under 16 years of age refusing blood transfusions because her religion requires that she abstain from receiving blood – Transfusion necessary to avoid severe consequences to child’s health – For child under 16, provincial child and family services legislation authorizing court to order treatment that it considers in best interests of child – For child 16 and over, no medical treatment can be ordered by court without child’s consent unless court satisfied that child lacks ability to understand relevant information or consequences of treatment decision – Whether legislation infringes child’s equality rights – Canadian Charter of Rights and Freedoms, s. 15 – Child and Family Services Act, C.C.S.M. c. C80, s. 25(8), (9).

Constitutional law – Charter of Rights – Freedom of religion – Child under 16 years of age refusing blood transfusions because her religion requires that she abstain from receiving blood – Transfusion necessary to avoid severe consequences to child’s health – For child under 16, provincial child and family services legislation authorizing court to order treatment that it considers in best interests of child – For child 16 and over, no medical treatment can be ordered by court without child’s consent unless court satisfied that child lacks ability to understand relevant information or consequences of treatment decision – Whether legislation infringes child’s freedom of religion – If so, whether infringement justifiable – Canadian Charter of Rights and Freedoms, ss. 1, 2(a) – Child and Family Services Act, C.C.S.M. c. C80, s. 25(8), (9).
Status of persons – Child protection – Care while under apprehension – Maturity – Court order authorizing treatment – For child under 16, provincial child and family services legislation authorizing court to order treatment that it considers in ‘best interests’ of child – For child 16 and over, no medical treatment can be ordered by court without child’s consent unless court satisfied that child lacks ability to understand relevant information or consequences of treatment decision – Whether young person under 16 entitled to demonstrate sufficiency of maturity in medical treatment decisions – Interpretation of ‘best interests’ standard – Child and Family Services Act, C.C.S.M. c. C80, s. 25(8), (9).

Judges:

McLachlin C.J. and Binnie, LeBel, Deschamps, Abella, Charron and Rothstein JJ

Citations:

[2009] SCC 30, [2009] 2 SCR 181

Links:

Canlii

Jurisdiction:

Canada

Cited by:

Cited – Re X (A Child) FD 29-Oct-2020
Limited transfusion against young adults wishes
The Court was asked whether a blood transfusion should be administered to a young woman who was almost, not quite, 16, against her profound religious beliefs. X is a Jehovah’s Witness. She has explained to me, in very powerful and moving words, the . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Human Rights, Children, Health

Updated: 04 May 2022; Ref: scu.656348

In re W (A Minor) (Adoption Agency: Wardship): 1990

The court considered the requirments for adoption of a child subject to wardship.

Citations:

[1990] Fam 156

Jurisdiction:

England and Wales

Cited by:

Cited – Re A Ward of Court FD 4-May-2017
Ward has no extra privilege from Police Interview
The court considered the need to apply to court in respect of the care of a ward of the court when the Security services needed to investigate possible terrorist involvement of her and of her contacts. Application was made for a declaration as to . .
Lists of cited by and citing cases may be incomplete.

Children, Adoption

Updated: 04 May 2022; Ref: scu.588167

Re W (a minor) (medical treatment: courts jurisdiction): CA 1992

An application was made for a declaration allowing a hospital to treat a girl aged 16 years suffering from anorexia nervosa against her wishes.
Held: The order was made. It is a feature of anorexia nervosa that it is capable of destroying the ability to make an informed choice. Where a Gillick-competent child refuses to give her consent to the treatment, the court may, in the exercise of its inherent jurisdiction, override the child’s wishes in her best interests and give its consent to her treatment.
Lord Donaldson MR said: ‘There is ample authority for the proposition that the inherent powers of the Court under its parens patriae jurisdiction are theoretically limitless and that they certainly extend beyond the powers of a natural parent . . There can therefore be no doubt that it has power to override the refusal of a minor, whether over the age of 16 or under that age but ‘Gillick competent’. It does not do so by ordering the doctors to treat, which, even if within the Court’s powers, would be an abuse of them, or by ordering the minor to accept treatment, but by authorising the doctors to treat the minor in accordance with their clinical judgment, subject to any restrictions which the Court may impose.’ and ‘Hair-raising possibilities were canvassed of abortions being carried out by doctors in reliance upon the consent of parents and despite the refusal of consent by 16- and 17-year-olds. Whilst this may be possible as a matter of law, I do not see any likelihood taking account of medical ethics, unless the abortion was truly in the best interests of the child. This is not to say that it could not happen.’
Nolan LJ said that the duty of the court is to ensure so far as it can that children survive to attain the age of 18 at which an individual is free to do with his life what he wishes, and ‘In considering the welfare of the child, the court must not only recognise but if necessary defend the right of the child, having sufficient understanding to take an informed decision, to make his or her own choice. In most areas of life it would be not only wrong in principle but also futile and counter-productive for the court to adopt any different approach.’
Balcombe LJ said: ‘Accordingly the older the child concerned the greater the weight the court should give to its wishes, certainly in the field of medical treatment. In a sense this is merely one aspect of the application of the test that the welfare of the child is the paramount consideration. It will normally be in the best interests of a child of sufficient age and understanding to make an informed decision that the court should respect its integrity as a human being and not lightly override its decision on such a personal matter as medical treatment, all the more so if that treatment is invasive. In my judgment, therefore, the court exercising the inherent jurisdiction in relation to a 16- or 17-year-old child who is not mentally incompetent will, as a matter of course, ascertain the wishes of the child and will approach its decision with a strong predilection to give effect to the child’s wishes.’

Judges:

Lord Donaldson MR, Nolan LJ, Balcombe LJ

Citations:

[1993] Fam 64, [1992] 4 All ER 627, [1992] 3 WLR 758

Jurisdiction:

England and Wales

Cited by:

Cited – In re T (a Minor) CA 24-Oct-1996
C was born with a liver defect. After a failed operation, the parents, both caring health professionals, decided not to put him through major surgery again. The local authority and doctors obtained an order to allow a potentially life saving liver . .
No longer reflects the law – Re X (A Child) FD 29-Oct-2020
Limited transfusion against young adults wishes
The Court was asked whether a blood transfusion should be administered to a young woman who was almost, not quite, 16, against her profound religious beliefs. X is a Jehovah’s Witness. She has explained to me, in very powerful and moving words, the . .
Lists of cited by and citing cases may be incomplete.

Children, Health

Updated: 04 May 2022; Ref: scu.536470

In re G (Children) (Education: Religious Upbringing): CA 4 Oct 2012

The parents, both once ultra orthodox Jews disputed the education of their children after their separation, and after the mother, though still Orthodox, ceased to be a member of the Chareidi community.

Judges:

Maurice Kay, Munby LJJ, Sir Stephen Sedley

Citations:

[2012] EWCA Civ 1233, [2013] 1 FLR 677, [2012] WLR(D) 265

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Cited – Owens v Owens CA 24-Mar-2017
Unreasonable Behaviour must reach criteria
W appealed against the judge’s refusal to grant a decree of divorce. He found that the marriage had broken down irretrievably, but did not find that H had behaved iin such a way that she could not reasonably be expected to live with H.
Held: . .
Cited – Re X (A Child) FD 29-Oct-2020
Limited transfusion against young adults wishes
The Court was asked whether a blood transfusion should be administered to a young woman who was almost, not quite, 16, against her profound religious beliefs. X is a Jehovah’s Witness. She has explained to me, in very powerful and moving words, the . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 04 May 2022; Ref: scu.464653

In re H and R (Minors): CA 1994

An allegation had been made by a daughter of sexual abuse against her step-father. Despite his acquittal, the local authority went ahead with an application for a care order. The authority now appealed against a finding that it had not established a risk to the children to a sufficient standard.
Held: The appeal failed. The judge had used a two stage approach. That was approved.
Millett LJ said: ‘If the likelihood of the child suffering harm in the future depends upon the truth of disputed allegations, the court must investigate the allegations and determine, on the balance of probabilities, whether they are true or false. It is not sufficient that there is a real possibility that the allegations may be true if the probability is that they are not.’ As to the differing circumstances covered by the sub-section: ‘In the first it is plain that the court must be satisfied, on a balance of probabilities, that the child is suffering significant harm. It is not enough for the court to conclude that there is a real possibility that the child may be suffering significant harm. The same test must be applied to the second factual situation.’
Kennedy LJ dissented.

Judges:

Sir Stephen Brown P, Millett LJ, Kennedy LJ

Citations:

[1995] 1 FLR 641

Statutes:

Children Act 1989 31(2)(a)

Jurisdiction:

England and Wales

Citing:

Cited – Newham London Borough Council v Attorney-General CA 1993
The court rejected an argument that ‘likely to suffer significant harm’ in the subsection was to be equated with ‘on the balance of probabilities’. . .

Cited by:

Appeal from – In re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 02 May 2022; Ref: scu.416037

RS v KS (Abduction: Wrongful Retention): FD 26 Jun 2009

In considering an international abduction of a four year old child by a parent Macur J said that disruption to the living arrangements of such a young child ‘would have more far reaching consequences and adverse impact than in the case of an older and less sensitive child able to comprehend a sudden departure from one routine and community and the prospect of the next.’

Judges:

Macur J

Citations:

[2009] EWHC 1494 (Fam), [2009] 2 FLR 1231

Links:

Bailii

Statutes:

Hague Convention on the Civil Aspects of International Child Abduction 1980

Jurisdiction:

England and Wales

Cited by:

Cited – In re O (Children) CA 16-Feb-2011
The family had Nigerian nationality, but the father also had US nationality. After the split, M wanted to live with the children in Nigeria, and F wanted them with him in the US. On M’s visit to the UK from Nigeria with the children, the father . .
Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 02 May 2022; Ref: scu.377901

Hall v Hall: 31 Jul 1749

The guardian is a proper judge at what school to place his ward, and the court wll not indulge the infant in being put to a private tutor, or going to another sohool, and if he refuses to go will take a proper course to compel him.

Citations:

[1749] EngR 133, (1749) 3 Atk 721, (1749) 26 ER 1213 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Children, Education

Updated: 02 May 2022; Ref: scu.378532

Crowhurst And Mary His Wife v Laverack: 20 Nov 1852

The father and mother of an illegitimate child entered into an agreement for the maintenance of the child. He was to contribute on the basis that she would otherwise care for the child. The mother later married, and she and the father now sought payment for necessaries for the child.
Held: If the agreement purported to oblige the father to make payments if the mother agreed to support the child, then there was no consideration for the agreement, but if it was her agreement to take sole support of without affiliating the child, there would be good consideration.

Judges:

Baron Parke

Citations:

[1852] EngR 1029, (1852) 8 Exch 208, (1852) 155 ER 1322

Links:

Commonlii

Cited by:

Cited – Ward v Byham CA 16-Jan-1956
The parties were the parents of an illegitimate daughter. The child lived with the father at first, but the mother requested the child to be returned to her. The father agreed subject to a letter saying: ‘Mildred, I am prepared to let you have Carol . .
Lists of cited by and citing cases may be incomplete.

Children, Contract

Updated: 02 May 2022; Ref: scu.296152

Baboo Lekraj Roy, Baboo Mahtab Chand And Others: PC 14 Dec 1871

Suit against the Guardians of a Minor, to recover moneys alleged to be due from the estate of the Minor’s Father. The Guardians compromised the suit and the Deed of Compromise were confirmed by the Court. After sixteen years, the Minor, being then of age, brought a suit against the Guardians to recover the mount paid under the Deed of compromise, alleging that the former suit was a, fictitious one, and the compromise fraudulent and collusive between the Plaintiff and his Guardians. On appcal, held, by the Judicial Committee, reversing the judgments of the Courts in India, (1) that, in the circumstances, the Guardians, in their discretion, were justified in making the compromise to protect the Infant’s estate, and (2) that the burthen of proving the allegation that the former suit was fictitious and collusive, was upon the Plaintiff, and in the absence of any such evidence by him that no debt was due from the Father’s estate, the onus probandii was not shifted on the Defandants to negative, such allegations.

Citations:

[1871] EngR 58, (1871) 14 Moo Ind App 393, (1871) 20 ER 833

Links:

Commonlii

Children, Trusts, Litigation Practice

Updated: 02 May 2022; Ref: scu.280239

A v Director of Public Prosecutions: QBD 1992

The defendant, aged 11, appealed against his conviction of an offence under the Public Order Act 1986, on evidence that he had thrown bricks at a police vehicle. He had then fled the scene.
Held: The conviction was quashed. The fact that the defendant had run away might have indicated no more than that he thought that he had been naughty rather than done something that was seriously wrong. The presumption of doli incapax was not disapplied, but, Bingham LJ said: ‘children have the benefit of the presumption which in this case and some others seems to me to lead to results inconsistent with common sense.’

Judges:

Bingham LJ

Citations:

[1992] Crim LR 34

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v T CACD 16-Apr-2008
The twelve year old defendant had pleaded guilty to several allegations of sexual assault. The judge had ruled that it was not open to him to plead doli incapax. He appealed saying that only the presumption of doli incapax had been abolished, and . .
Cited – JTB, Regina v HL 29-Apr-2009
The defendant appealed against his convictions for sexual assaults. He was aged twelve at the time of the offences, but had been prevented from arguing that he had not known that what he was doing was wrong. The House was asked whether the effect of . .
Lists of cited by and citing cases may be incomplete.

Crime, Children

Updated: 01 May 2022; Ref: scu.269706

JBH and JH (minors) v O’Connell: QBD 1981

The defendants were boys of 13 and 11. They broke into a school, stole various items and ‘used 12 tubes of duplicating ink to redecorate the school’. They offered no evidence and submitted that there was no case to answer as the prosecution had not rebutted the presumption that they did not know that they were doing was wrong. The magistrates convicted them on the ground that ordinary boys of their ages would have known that they were doing wrong.
Held: The appeals succeeded. The magistrates could not assume that the defendants had the understanding of ordinary boys of their ages. The prosecution should have adduced evidence of this. However, Forbes J discussed the law of doli incapax: ‘in these days of universal education from the age of 5 it seems ridiculous that evidence of some mischievous discretion should be required if a case of malicious damage is committed as it was in this case.’

Judges:

Forbes J

Citations:

[1981] Crim LR 632

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v T CACD 16-Apr-2008
The twelve year old defendant had pleaded guilty to several allegations of sexual assault. The judge had ruled that it was not open to him to plead doli incapax. He appealed saying that only the presumption of doli incapax had been abolished, and . .
Cited – JTB, Regina v HL 29-Apr-2009
The defendant appealed against his convictions for sexual assaults. He was aged twelve at the time of the offences, but had been prevented from arguing that he had not known that what he was doing was wrong. The House was asked whether the effect of . .
Lists of cited by and citing cases may be incomplete.

Crime, Children

Updated: 01 May 2022; Ref: scu.269705

Re P (Sexual Abuse: Standard of Proof): FD 1996

Wall J commented on the diffculties arising where an allegation of child abuse remained unresolved on the evidence: ‘It has also had the effect, in the instant case, of producing the worst of all worlds. The father remains under a cloud. Abuse is not proved on the balance of probabilities, but he remains effectively branded an abuser: as the judge himself said, ‘at the very lowest he will remain under suspicion until his daughters are old enough to be able to cope with any risk of abuse themselves’. Furthermore, the mother’s beliefs are reinforced. It thus becomes impossible for the parties and the children to put the issue of sexual abuse behind them. The end result is highly unsatisfactory.’

Judges:

Wall J

Citations:

[1996] 2 FLR 333

Jurisdiction:

England and Wales

Cited by:

Cited – In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL 11-Jun-2008
Balance of probabilities remains standard of proof
There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 01 May 2022; Ref: scu.268844

In Re M (Minors) (Residence Order: Jurisdiction): CA 1993

The claimant mother took her 2 children from their grandparent’s home in Scotland where they were habitually resident on 4 July 1992 for a 2 week holiday with her in England. On 13 July she told the grandparents that she was not returning the children. She started proceedings in England on 23 July.
Held: The English courts would only have jurisdiction if the children were not habitually resident in any other part of the United Kingdom on 23 July. They were not so habitually resident as the mother’s notice to the grandparents on 13 July had brought their Scottish habitual residence to an end. The question was whether they had between 13 July and 23 July acquired habitual residence in England.
Balcombe LJ said: ‘I do not find it necessary to express a final opinion on this question. As stated in the passage from Lord Brandon’s speech in Re J which is the third proposition above it is easy to lose an habitual residence: it is more difficult to acquire one. It is sufficient to say that I entertain grave doubts that the children had by 23 July 1992, regained an habitual residence in England.’
Hoffman LJ agreed in the result, but would have had less difficulty than Balcombe LJ in holding that on 13 July the children were habitually resident in England. He set out his reasons.

Judges:

Balcombe LJ, Steyn LJ, Hoffman LJ

Citations:

(1993)1 FLR 495

Jurisdiction:

England and Wales

Cited by:

Cited – W v F FD 4-Apr-2007
Application by father for summary return of son to the USA. The mother said that the father had consented to his removal and acquiesced in his stay here.
Held: The mother had a settled intention to remain in the US when she first arrived, but . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 01 May 2022; Ref: scu.268697

J v C (Child’s Financial Provision): 1999

The court explained the absence from the check list in the section of any mention of the welfare of a child of the family.

Judges:

Hale J

Citations:

[1999] 1 FLR 152

Statutes:

Matrimonial Causes Act 1973 25A

Cited by:

Cited – Morgan v Hill CA 28-Nov-2006
The father appealed an award of periodical payments to a former partner. She had a child by an earlier relationship. The father was immensely rich and during the relationship made financial provision for the child by the earlier relationship also. . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 01 May 2022; Ref: scu.247674

Regina v David D; Phillip J: 1996

The appellants were convicted by a jury. Subsequently, Connell J heard care proceedings in which he had to consider the same allegations made against the appellants in the criminal trial.
Connell J said: ‘However, this evidence is not sufficient to satisfy me that he did not commit these offences and the situation in which this court is left is that I do not know whether or not he committed the conspiracy offences although I do know that he has been convicted of them . . it is not my function in any way to act as some form of appellate court from the verdicts of the jury and therefore I must proceed on the basis that Jay did commit the offences of which he has been convicted.’ The defendant appealed.
Held: The court was therefore prepared to ‘consider’ Connell J’s judgment in order to examine whether any material in it might throw light on the safety, or otherwise of the convictions. It would or might provide ‘fresh evidence’.

Citations:

[1996] 1 CAR 455

Jurisdiction:

England and Wales

Criminal Practice, Children

Updated: 01 May 2022; Ref: scu.244674

Re O’Hara: 1900

(Ireland) FitzGibbon LJ SAID: ‘In exercising the jurisdiction to control or to ignore the parental right the court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in opposition to the parent only when judicially satisfied that the welfare of the child requires that the parental right should be suspended or superseded.’

Judges:

FitzGibbon LJ

Citations:

[1900] 2 IR 232

Cited by:

Cited – J v C (An Infant) HL 19-Feb-1969
The House sought to construe the meaning of the words ‘shall regard the welfare of the infant as the first and paramount consideration’. Lord MacDermott said: ‘it seems to me that they must mean more than that the child’s welfare is to be treated as . .
Cited – In Re KD (A Minor) (Ward: Termination of Access) HL 1988
The local authority sought to terminate parental contact with a child taken into care under a wardship.
Held: The court had to consider the human rights of the parent as against the welfare interest of the child. Lord Oliver of Aylmerton said: . .
Cited – In Re G (A Minor) (Interim Care Order: Residential Assessment); G (Children), In Re (Residence: Same Sex Partner) HL 26-Jul-2006
The parties had been a lesbian couple each with children. Each now was in a new relationship. One registered the two daughters of the other at a school now local to her but without first consulting the birth mother, who then applied for residence . .
Lists of cited by and citing cases may be incomplete.

International, Children

Updated: 01 May 2022; Ref: scu.244484

Rice v Miller: 10 Sep 1993

(Family Court of Australia) Whilst there is a legislative presumption regarding equal shared parental responsibility between parents there is no presumption in favour of parents (jointly or severally) as regards the placement of children nor a presumption in favour of a parent as regards their relationship with a child (such as by spending time or communicating with them) and whether judiciable controversy arises between parents or as regards a parent and a non-parent.

Judges:

Ellis, Lindemayer, Bell JJ

Citations:

[1993] FamCA 87, (1993) FLC 92-415

Links:

Austlii

Citing:

Approved – Hodak v Newman and Hodak 1993
(Family Court of Australia) Lindenburgh J said: ‘I am of the opinion that the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, . .

Cited by:

Cited – In Re G (A Minor) (Interim Care Order: Residential Assessment); G (Children), In Re (Residence: Same Sex Partner) HL 26-Jul-2006
The parties had been a lesbian couple each with children. Each now was in a new relationship. One registered the two daughters of the other at a school now local to her but without first consulting the birth mother, who then applied for residence . .
Cited – Re D (A Child) CA 26-Mar-2014
F appealed against the removal of his parental responsibility for his son. M and F were not married, but F had been named on the birth certificate. He had later been convicted of sexual assaults against two daughters of M by an earlier relationship. . .
Lists of cited by and citing cases may be incomplete.

Children, Commonwealth

Updated: 01 May 2022; Ref: scu.244488

In Re Holt’s Settlement: ChD 1969

An application was made to vary the terms of a trust in favour of children.
Held: The court was ready to receive evidence from a mother whose children were due to become entitled to funds at the age of 21 that she believed it most important that young people should be reasonably advanced in a career and settled in life before they were in receipt of an income sufficient to make them independent of the need to work. Megarry J, ‘speaking in general terms’ fully concurred, and approved an arrangement which postponed vesting of their interests.

Judges:

Megarry J

Citations:

[1969] 1 Ch 100

Jurisdiction:

England and Wales

Cited by:

Cited – Goulding and Goulding v James and Daniel CA 10-Dec-1996
The family sought approval of a proposed variation of the will to make best advantage of tax allowances. Because the beneficial interests of children would be affected, the court’s approval was necessary. The judge had refused to approve the . .
Cited – Wright and Another v Gater and Others ChD 7-Nov-2011
The beneficiary, a child was to inherit estates of his grandparents and parents, all of which were intestate. An application was made to vary the provisions in order to reduce the liability to Inheritance Tax.
Held: A deferment of vesting . .
Lists of cited by and citing cases may be incomplete.

Trusts, Children

Updated: 01 May 2022; Ref: scu.241670

T v W (Contact: Reasons for Refusing Leave): 1996

Citations:

[1996] 2 FLR 473

Jurisdiction:

England and Wales

Cited by:

Cited – In re X, (Emergency Protection Orders) FD 16-Mar-2006
Within two hours of a case conference which mentioned possible removal of children, but agreed other steps, the local authority applied for an emergency protection order, and forcibly removed the child from the family.
Held: The decision . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 01 May 2022; Ref: scu.241297

Brixey v Lynas: 1994

‘However difficult it may be, the Court must as we have mentioned take a long term view in relation to the interests of a child. We agree with what is said in Wilkinson at page 212 (Wilkinson and Norrie: The Law Relating to Parent and Child in Scotland) that ‘although custody decisions, in contrast with adoption orders, are in principle readily open to review, a custody order once made is in practice and for good reason, usually very difficult to disturb and that the Court should take a long view rather than be influenced by transient considerations applicable only to the early years of a child’s life”.

Citations:

Ind Summary 22-Nov-1993, 1994 SC 606

Cited by:

Appeal from – Brixey v Lynas HL 2-Jul-1996
Delay after a hearing will increase the reluctance of an appellate court to interfere with the decision of a court on the evidence. . .
Lists of cited by and citing cases may be incomplete.

Scotland, Children

Updated: 30 April 2022; Ref: scu.229105

Marshall v Toothill (formerly Marshall): CA 5 May 2005

The father appealed a decision on a contact application.
Held: The appeal succeeded. The judge had decided the contested contact application at an interim directions hearing and without the benefit of of a child welfare report. A court should make its decisions based upon proper evidence and enquiries.

Citations:

Times 17-Jun-2005

Jurisdiction:

England and Wales

Children

Updated: 30 April 2022; Ref: scu.228580

Re R (Minors)(Wardship: Jurisdiction): CA 1981

When considering tha return of a child to a foreign jurisdiction, the ‘so-called kidnapping’ of the child, or the order of a foreign court, were relevant considerations: ‘but the weight to be given to either of them must be measured in terms of the interests of the child, not in terms of penalising the ‘kidnapper’, or of comity, or any other abstraction. ‘Kidnapping’, like other kinds of unilateral action in relation to children, is to be strongly discouraged, but the discouragement must take the form of a swift, realistic and unsentimental assessment of the best interests of the child, leading, in proper cases, to the prompt return of the child to his or her own country, but not the sacrifice of the child’s welfare to some other principle of law.’

Judges:

Lord Justice Ormrod

Citations:

(1981) 2 FLR 416

Jurisdiction:

England and Wales

Cited by:

Cited – Re J (A Child), Re (Child returned abroad: Convention Rights); (Custody Rights: Jurisdiction) HL 16-Jun-2005
The parents had married under shariah law. They left the US to return to the father’s home country Saudi Arabia. They parted, and the mother brought their son to England against the father’s wishes and in breach of an agreement. The father sought . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 30 April 2022; Ref: scu.228371

Re P (A Minor)(Child Abduction: Non Convention Country): CA 1997

The Hague Convention concepts are not to be applied in a non-Convention case.

Citations:

[1997] Fam 45

Statutes:

Hague Convention on the Civil Aspects of International Child Abduction

Jurisdiction:

England and Wales

Citing:

Approved – Re L (Minors) (Wardship: Jurisdiction) CA 1974
The court summarised the principles as to the return of a child to a foreign country without conducting a full investigation of the merits: ‘To take a child from his native land, to remove him to another country where, maybe, his native tongue is . .

Cited by:

Cited – Re J (A Child), Re (Child returned abroad: Convention Rights); (Custody Rights: Jurisdiction) HL 16-Jun-2005
The parents had married under shariah law. They left the US to return to the father’s home country Saudi Arabia. They parted, and the mother brought their son to England against the father’s wishes and in breach of an agreement. The father sought . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 30 April 2022; Ref: scu.228369

B County Council v L and Others: FD 2002

Whilst under assessment before consideration of a final order, the mother said she had hurt her older child. The hospital was unable to provide 24 hour supervision, and the assessment was terminated. The parents sought an order for an assessment at an alternative hospital.
Held: If the assessment was necessary, it was not correct to stop the assessment for financial reasons. The assessment must be concluded.

Judges:

Charles J

Citations:

[2002] EWHC 2327 Fam

Statutes:

Children Act 1989 38(6)

Cited by:

Cited – Kent County Council v G and others HL 24-Nov-2005
A residential assessment order had been made under the 1989 Act in care proceedings. When the centre recommended a second extension of the assessment, the council refused, saying that the true purpose was not the assessment of the child but the . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 30 April 2022; Ref: scu.228168

Re B’s Settlement, B v B: 1940

Morton J said: ‘I desire to say quite plainly that in my view this Court is bound in every case, without exception, to treat the welfare of its ward as being the first and paramount consideration, whatever orders may have been made by the Courts of any other country.’

Judges:

Morton J

Citations:

[1940] Ch 54

Cited by:

Approved – McKee v McKee PC 15-Mar-1951
(Canada) There was a choice open to the trial judge facing a contest for the custody of a child: ‘It is possible that a case might arise in which it appeared to a court, before which the question of custody of an infant came, that it was in the best . .
Cited – J v C (An Infant) HL 19-Feb-1969
The House sought to construe the meaning of the words ‘shall regard the welfare of the infant as the first and paramount consideration’. Lord MacDermott said: ‘it seems to me that they must mean more than that the child’s welfare is to be treated as . .
Cited – Re J (A Child), Re (Child returned abroad: Convention Rights); (Custody Rights: Jurisdiction) HL 16-Jun-2005
The parents had married under shariah law. They left the US to return to the father’s home country Saudi Arabia. They parted, and the mother brought their son to England against the father’s wishes and in breach of an agreement. The father sought . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 30 April 2022; Ref: scu.228367

Re B (a Minor): CA 2002

Six of the seven children were already in care, and an application was to be made for the seventh. The guardian proposed a residential assessment of mother and baby. The authority sought separate assessments, with an immediate interim order, and the child placed with foster parents. The mother appealed.
Held: Her appeal was allowed. The court had not properly balanced the advantages of assessing the mother and baby together. The purpose of a s38 order was to provide the court with the information it would need to make a final order. The judge had jurisdiction to make an order though the interim order had been made. The proposed assessment satisfied the test that it would provide the court with the information it would need to make the final order.

Citations:

[2002] 1 FLR 545

Statutes:

Children Act 1989 838(6)

Jurisdiction:

England and Wales

Children, Human Rights

Updated: 30 April 2022; Ref: scu.228159

Re CH (Care or Interim Care Order): 1998

CH suffered injury, and a care order was sought, with rehabilitation a possibility. The guardian wanted adoption. In the absence of a paediatric psychiatric report, the judge approved the care plan and gave directions that a child psychiatrist should be informed on placement. The Guardian was not allowed to call his witnesses, and he appealed, saying the court should only make a decision with material information.
Held: His appeal was allowed, and an interim order substituted. A care plan could not be approved without completing the due requirements of court procedures. If the expert evidence was not adequate, a final order should not be made. Even if a care order appeared inevitable, the court consider the merits fully. Here, the Judge should not have made the final order when he did not have all the relevant expert evidence and where there remained a divergence of opinion between the Guardian and local authority.

Citations:

[1998] 1 FLR 403

Statutes:

Children Act 1989 38(6)

Citing:

Approved – In Re J (Minors) (Care: Care Plan) FD 1994
The judge had found that the threshold criteria in section 31 had been met, but the authority changed the care plan immediately before the final hearing. The guardian now appealed a final order, having proposed an interim order.
Held: Once the . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 30 April 2022; Ref: scu.228014

In Re M (Interim Care Order: Assessment): CA 2 Jan 1996

There was no jurisdiction under section 38(6) to order residential assessment of a family involved in care proceedings. The words ‘other assessment of the child’ had to be construed as ejusdem generis with the words ‘medical or psychiatric examination’. It was importance that the subsection only refers to the examination or assessment ‘of the child’ and makes no reference to the examination or assessment of any other person in relation to the child. For the court to order a residential assessment of the parents and child together at a specified place would involve the court in an unwarranted usurpation by the court of the local authority’s power (as the authority having parental responsibility under the interim care order) to regulate where the child is to reside.

Citations:

[1996] 2 FLR 464, [1996] 3 FCR 137

Statutes:

Children Act 1989 38(6) 38(7)

Jurisdiction:

England and Wales

Citing:

Followed – In re L CA 1996
In exercising its jurisdiction under the Act, the court’s function is investigative and non-adversarial. Ward LJ: the court had no power to order a residential assessment at a specified place. Millett LJ agreed, but said that a judge could impose ‘a . .

Cited by:

Not Followed – In Re C (A Minor) (Interim Care Order: Residential Assessment) HL 29-Nov-1996
The parents were suspected of causing the child non-accidental injury. The court wanted a residential assessment of the family, but the local authority refused, saying it would be too expensive, and would expose the child to continuing risk. The . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 30 April 2022; Ref: scu.228024

In re S (A Minor) (Independent Representation): CA 1993

Sir Thomas Bingham MR said: ‘Different children have differing levels of understanding at the same age. And understanding is not absolute. It has to be assessed relatively to the issues in the proceedings. Where any sound judgment on these issues calls for insight and imagination which only maturity and experience can bring, both the court and the solicitor will be slow to conclude that the child’s understanding is sufficient.’ and ‘The 1989 Act enables and requires a judicious balance to be struck between two considerations. First is the principle, to be honoured and respected, that children are human beings in their own right with individual minds and wills, views and emotions, which should command serious attention. A child’s wishes are not to be discounted or dismissed simply because he is a child. He should be free to express them and decision-makers should listen. Second is the fact that a child is, after all, a child. The reason why the law is particularly solicitous in protecting the interests of children is because they are liable to be vulnerable and impressionable, lacking the maturity to weigh the longer term against the shorter, lacking the insight to know how they will react and the imagination to know how others will react in certain situations, lacking the experience to measure the probable against the possible. Everything of course depends on the individual child in his actual situation. For purposes of the Act, a babe in arms and a sturdy teenager on the verge of adulthood are both children, but their positions are quite different: for one the second consideration will be dominant, for the other the first principle will come into its own. The process or growing up is, as Lord Scarman pointed out in Gillick …[1986] AC 112 at p 186B [1986] 1 FLR 224 at p250H), a continuous one. The judge has to do his best, on the evidence before him, to assess the understanding of the individual child in the context of the proceedings in which he seeks to participa

Judges:

Sir Thomas Bingham MR

Citations:

[1993] Fam 263, [1993] 2 FLR 437

Statutes:

Family Proceedings Rules 1991 9.2A(6), Children Act 1989

Jurisdiction:

England and Wales

Cited by:

Cited – Mabon v Mabon and others CA 26-May-2005
In the course of an action regarding their residence arrangements, the older children of the family sought an order to be allowed separate legal representation, and now appealed a refusal.
Held: The rights of freedom of expression and to . .
Lists of cited by and citing cases may be incomplete.

Children, Litigation Practice

Updated: 30 April 2022; Ref: scu.225554

E C-L v DM (Child abduction: Costs): FD 11 Apr 2005

The mother had persistently made false allegations against her husband of abduction and of forgery. She had been permitted to withdraw her originating application. She appealed an order against her for costs, saying that the Convention under which the application was made contained no provision for awarding costs.
Held: Though costs orders were not normally made in such proceedings, one could be made where as here one party had misbehaved, and the other was not a person of means. The absence of an express power under the Convention was not determinative.

Judges:

Ryder J

Citations:

Times 10-May-2005

Statutes:

Child Abduction and Custody Act 1985, Convention on the Civil Aspects of International Child Abduction 1980

Jurisdiction:

England and Wales

Costs, Children

Updated: 30 April 2022; Ref: scu.224769

Constanda v M: SCS 1977

The child had been referred to a children’s hearing on the basis that he was exposed to moral danger in terms of section 32(2)(b).
Held: As the whole substratum of the ground of referral was that the child had performed certain acts which constituted criminal offences, the commission of the offences had to be proved to the criminal standard. This was despite the fact that the proceedings before the sheriff were civil proceedings, and in the absence of any rule laid down by the Act which required the criminal standard to be applied in any case other than where the child had been referred under section 32(2)(g) on the ground that he had committed an offence.

Citations:

1997 SC 217

Statutes:

Social Work (Scotland) Act 1968 32(2)(b)

Cited by:

Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Lists of cited by and citing cases may be incomplete.

Scotland, Children

Updated: 30 April 2022; Ref: scu.224366

In Re Besant: ChD 18 May 1878

Mrs Besant had been prosecuted for publishing an obscene libel in the form of a book on abortion.
Held: The publication of the book was in itself sufficient grounds for removing Mrs Besant’s seven year old daughter from her mother’s custody.
Held: ‘I am sorry to say that there is another ground, which I should be glad to avoid dealing with if I could. Another accusation against Mrs Besant is this: It is said that in addition to these opinions on the questions as to the existence of a Deity and other speculative subjects, Mrs Besant has been guilty of immoral conduct in publishing an immoral or obscene book, or rather pamphlet. Now, I am sorry to say that on my attention being directed to some of the pages of this pamphlet I can entertain no doubt whatever as to its being an obscene publication.
My view is exactly the same as was entertained by the Lord chief Justice of England and a jury on the occasion of the trial of Mr Bradlaugh and Mrs Besant for the publication of this book, at which trial they were convicted. And although that conviction has been set aside on a technical point, a flaw in the indictment, no Judge, so far as I am aware, has for a moment doubted the propriety of that conviction. Besides that, it has also been condemned by a magistrate to be destroyed, and that decision has been confirmed by a Court of Quarter Sessions, a number of magistrates being assembled there. I think my view of the book is, if I may say so, fully confirmed and borne out by these previous decisions; although, even if I entertained a less strong opinion than I do, I ought not to hesitate to express that opinion.
Well, now, what is the result? The result of it is that Mrs Besant’s character is to be judged not only by the publication of the book, but by the conviction following from that publication, and one cannot expect modest women to associate with her. She may be a most conscientious person – that is to say, she may believe that all she has done was done by her for the purpose of doing good. I am not unwilling to admit that, and to credit her with good intentions, but if she has adopted a course which is reprobated by a vast majority of mankind, and in fact by the criminal law of this country, I do not think I should be right in saying that it would be beneficial for any young girl to be brought up by such a woman, and I think I should be guilty of a dereliction of duty if I allowed a young girl to be so brought up and educated in that way.’

Judges:

Sir George Jessel MR

Citations:

(1878) 11 ChD 508

Citing:

Cited – Bradlaugh v The Queen CA 1878
Conviction for publishing an obscene libel (abortion manual) overturned. . .
Appealed to – In Re Besant CA 9-Apr-1879
The appellant challenged an order removing her children after she had been prosecuted for publishing an obscene libel, in the form of a book on abortion.
Held: The appeal was dismissed. The court removed the daughter of Annie Besant and the . .

Cited by:

Appeal from – In Re Besant CA 9-Apr-1879
The appellant challenged an order removing her children after she had been prosecuted for publishing an obscene libel, in the form of a book on abortion.
Held: The appeal was dismissed. The court removed the daughter of Annie Besant and the . .
Cited – Regina (Smeaton) v Secretary of State for Health and Others Admn 18-Apr-2002
The claimant challenged the Order as regards the prescription of the morning-after pill, asserting that the pill would cause miscarriages, and that therefore the use would be an offence under the 1861 Act.
Held: ‘SPUC’s case is that any . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 30 April 2022; Ref: scu.223709

In re J (Leave to issue application for residence order): 2003

An application was made by a family member (a grandparent) to be joined as a party to care proceedings.
Held: A court should not dismiss such an application without proper inquiry.

Citations:

[2003] 1 FLR 114

Jurisdiction:

England and Wales

Cited by:

Cited – In re W (a Child) (Care proceedings: Leave to apply) FD 11-Nov-2004
Miss W appealed refusal of leave to be made party to care proceedings in respect of her niece. She had wanted to make representations and felt that if not a party her views would not be respected. The application was opposed by the authority and the . .
Cited – In re R (a Child) (Adoption: Contact) CA 18-Aug-2005
The child was placed for adoption. In the period before adoption, contact with her family continued. The prospective adopters said that this was unsettling.
Held: It would be unusual to make an order for contact against the wishes of the . .
Cited – In re R (A Child) CA 18-Aug-2005
An application was made for continued contact after a proposed adoption. The mother was young and had herself lost her family and taken into care when very young.
Held: Her request for permission to appeal failed. Wall LJ ‘I am reasonably . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 30 April 2022; Ref: scu.219836

In re W (a Child) (Care proceedings: Leave to apply): FD 11 Nov 2004

Miss W appealed refusal of leave to be made party to care proceedings in respect of her niece. She had wanted to make representations and felt that if not a party her views would not be respected. The application was opposed by the authority and the guardian, but supported by the mother and other family members.
Held: She required leave to apply. The considerations for this kind of application should be the same for both private law and public law proceedings. The list in 10(9)(a) to (d) is not an exclusive list, and the court retains a discretion aftre a full inquiry. Where the interests of the applying party were identical to those of an existing party the application would be likely to fail.

Judges:

Sumner J

Citations:

Times 22-Nov-2004

Statutes:

European Convention on Human Rights 6 8, Children Act 1989 94(1)

Jurisdiction:

England and Wales

Citing:

Cited – In Re M (Minors In Care) (Contact: Grandmother’s Application) CA 21-Apr-1995
A grandmother must seek leave of the court before applying for contact with a child in the care of the Local Authority. An application should be dismissed it it is frivolous, vexatious or an abuse of process and/or failed to show any reasonable . .
Cited – In re J (Leave to issue application for residence order) 2003
An application was made by a family member (a grandparent) to be joined as a party to care proceedings.
Held: A court should not dismiss such an application without proper inquiry. . .
Lists of cited by and citing cases may be incomplete.

Children, Human Rights

Updated: 30 April 2022; Ref: scu.219640

In re A Z (A Minor) (Abduction: Acquiescence): 1993

Citations:

[1993] 1 FLR 682

Jurisdiction:

England and Wales

Cited by:

Cited – H v H (Child Abduction: Acquiescence) CA 14-Aug-1996
The parents were orthodox Jews. The mother brought the children to England, and resisted an order for their return, saying the father had delayed in bringing the proceedings.
Held: A parent must act quickly in cases of child abduction in order . .
Cited – Re H, H v H (Child Abduction: Acquiescence) HL 10-Apr-1997
The mother and father were orthodox Jews. The mother brought the children to England from Israel against the father’s wishes. She said that he had acquiesced in their staying here by asking for them to be returned to Israel temporarily. The father . .
Cited – In Re H and others (Minors) HL 10-Apr-1997
Three young children had been brought to England from Israel by their mother but without the consent of the father, who now sought their return. The mother claimed that the father had subsequently acquiesced in the removal. Both parents were . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 30 April 2022; Ref: scu.219634

Re H (Abduction: Child of Sixteen): FD 2000

The court considered the position as to whether a child was to be deemed to be settled after having been within the UK for a period of more than one year: ‘It is the case, looking at the relative dates, that these proceedings were commenced after the expiration of the period of one year from the date of removal. It is, in my judgment, necessary to consider why the proceedings were so delayed. That, in my opinion, is relevant to the question of settlement because it was made plain in the case of Re L (Abduction: Pending Criminal Proceedings) [1999] 1 FLR 433, 441 that time in hiding cannot go to establish settlement and it is not good law for the abducting parent to be able to say ‘well, I have managed to evade the wronged parent; I have managed to hide my address and whereabouts of the children and I am going to rely on that in advance of the argument that the children have been so long in the jurisdiction that they have now settled in that environment and the court should exercise a judgment not to return them to the original jurisdiction’. Further, in that context it is relevant to consider when the father knew of the whereabouts of the children. I am satisfied that the father first knew of the children’s whereabouts in December 1998 when he received a letter from K. Even if the mother wrote in May 1998 and whether or not the father received such a letter, it does not, in my judgment, affect this aspect of the case because the mother did not set out her address and indicated that she would be staying in England for at least a few months. At that date, on any view of the matter, the mother was making representations which did not constitute a determination to remain permanently in this jurisdiction. It was in fact misleading as far as the father was concerned, because I am satisfied that when the mother wrongfully removed the children she intended to stay permanently within this jurisdiction but had no intention of so informing the father. The mother in effect was playing ducks and drakes with the father. She did not disclose her address and she did not inform the school in Australia that she was removing the children. When K did inform the father of the address shortly thereafter there was a removal to another address, and plainly, on the totality of the evidence, the mother was unwilling to have any meaningful contact with the father or to give him any information which might assist him to take any proceedings in relation to the children. Having regard to the fact, as I find, that the father did not know the whereabouts of the children until December 1998, it follows that within 12 months of that time he did in fact bring proceedings. That is a relevant matter in considering whether or not the children had settled. I find that the mother cannot, in the circumstances of this case, rely upon the settlement of the children in this jurisdiction. It is plain from the authorities what settlement consists of and, so far as these children are concerned, I do not find that they come into the ambit of the test in Re N (Minors) (Abduction) [1991] 1 FLR 413. Settlement has to be looked at at the date of commencement of proceedings and it is to be given its ordinary meaning with two constituents physical and emotional.’

Judges:

Bracewell J

Citations:

[2000] 2 FLR 51

Citing:

Cited – Re N (Minors) (Abduction) FD 2-Jan-1991
The court considered the degree of settlement that had to be proved under the Act: ‘The second question which has arisen is: what is the degree of settlement which has to be demonstrated? There is some force, I find, in the argument that legal . .
Cited – Re L (Abduction: Pending Criminal Proceedings) FD 1999
In a child abduction case, the court considered whether a child was settled within the UK if his whereabouts had been hidden: ‘The mother might or might not have demonstrated that the children were now settled in their new environment. The . .

Cited by:

Cited – Cannon v Cannon CA 19-Oct-2004
The mother had brought the child to the UK wrongfully. She had hidden their identity for more than a year. Upon discovering her, the father came to England and began proceedings for the child’s return to the US.
Held: Because the child’s . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 30 April 2022; Ref: scu.219156

Re N (Minors) (Abduction): FD 2 Jan 1991

The court considered the degree of settlement that had to be proved under the Act: ‘The second question which has arisen is: what is the degree of settlement which has to be demonstrated? There is some force, I find, in the argument that legal presumptions reflect the norm, and the presumption under the Convention is that children should be returned unless the mother can establish the degree of settlement which is more than mere adjustment to surroundings. I find that word should be given its ordinary natural meaning, and that the word ‘settled’ in this context has two constituents. First, it involves a physical element of relating to, being established in, a community and an environment. Secondly, I find that it has an emotional constituent denoting security and stability. ‘and ‘The phrase ‘long-term’ was not defined, but I find that it is the opposite of ‘transient’ it requires a demonstration by a projection into the future, that the present position imports stability when looking at the future, and is permanent insofar as anything in life can be said to be permanent. What factors does the new environment encompass? The word ‘new’ is significant, and in my judgment it must encompass place, home, school, people, friends, activities and opportunities, but not, per se, the relationship with the mother, which has always existed in a close, loving attachment. That can only be relevant insofar as it impinges on the new surroundings. Every case must depend on its own peculiar facts . . ‘ As to article 18 and the question of whether the court retained a discretion to order the return of a child found to have been settled here for more than one year (Art 18): ‘The next matter arising is whether art. 12 is applicable to this case, and whether the mother has demonstrated that the two children have settled in their new environment . . If the answer to that question is ‘yes’ then this court has a discretion under art. 18 as to whether or not the children should be ordered to return.’ and ‘in the event of the court being so satisfied, then a discretion arises under art. 18 as to whether or not to order the return of the children.’

Judges:

Bracewell J

Citations:

[1991] 1 FLR 413

Statutes:

Child Abduction and Custody Act 1985 5

Citing:

Cited – M v M FD 8-Oct-1990
. .
Cited – Re S (A Minor) (Abduction) CA 1991
The court considered what would constitute a child being ‘settled’ under the 1985 Act: ‘I now turn to the last matter, which is art. 12, as to whether in these circumstances it has been demonstrated that Katharine in now settled in her new . .

Cited by:

Cited – Cannon v Cannon CA 19-Oct-2004
The mother had brought the child to the UK wrongfully. She had hidden their identity for more than a year. Upon discovering her, the father came to England and began proceedings for the child’s return to the US.
Held: Because the child’s . .
Cited – Re M (Abduction: Acquiescence) FD 1996
After referring to the decisions in Re S and in Re N on the issue of whether a child had a settled residence: ‘It seems to me that any survey of the degree of settlement of the child must give weight to emotional and psychological settlement, as . .
Cited – Re L (Abduction: Pending Criminal Proceedings) FD 1999
In a child abduction case, the court considered whether a child was settled within the UK if his whereabouts had been hidden: ‘The mother might or might not have demonstrated that the children were now settled in their new environment. The . .
Cited – Re H (Abduction: Child of Sixteen) FD 2000
The court considered the position as to whether a child was to be deemed to be settled after having been within the UK for a period of more than one year: ‘It is the case, looking at the relative dates, that these proceedings were commenced after . .
Approved – Perrin v Perrin IHCS 1994
. .
Cited – Soucie v Soucie 1995
After noting the approval of In re N in Perrin the court added: ‘Furthermore the question of settlement had to be considered in the context of the spirit of the Convention whereby the fundamental duty of the court is to order a return of the child . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 30 April 2022; Ref: scu.219119

In Re J (A Minor) (Child in Care: Medical Treatment): CA 26 Aug 1992

Citations:

Gazette 26-Aug-1992, [1993] Fam 15

Jurisdiction:

England and Wales

Citing:

Appeal from – In Re J (A Minor) (Medical Treatment) FD 8-Jul-1992
The Court should be slow to interfere in the exercise of a bona fide clinical judgment to withdraw treatment from a patient, and may overrule a child’s wishes as to the need for medical treatment even though she expressed her wishes clearly. . .

Cited by:

Cited – Portsmouth NHS Trust v Wyatt and others FD 7-Oct-2004
Charlotte Wyatt was born prematurely, and depended for day to day her life on medical support. Her doctors asked to be permitted not to resuscitate her again if she needed it. Her parents asked that she be given whatever chance was available for her . .
Cited – Kent County Council v G and others HL 24-Nov-2005
A residential assessment order had been made under the 1989 Act in care proceedings. When the centre recommended a second extension of the assessment, the council refused, saying that the true purpose was not the assessment of the child but the . .
Lists of cited by and citing cases may be incomplete.

Children, Health Professions

Updated: 30 April 2022; Ref: scu.216347

In Re R (A Minor) (Wardship: Consent to Treatment): CA 1992

A doctor may not operate without on a child the consent of the person apparently legally able to give consent: ‘It is trite that in general a doctor is not entitled to treat a patient without the consent of someone who is authorised to give that consent. If he does so, he will be liable in damages for trespass to the person and may be guilty of a criminal assault.’

Judges:

Lord Donaldson of Lymington MR

Citations:

[1992] Fam 11

Jurisdiction:

England and Wales

Cited by:

Cited – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .
No longer reflects the law – Re X (A Child) FD 29-Oct-2020
Limited transfusion against young adults wishes
The Court was asked whether a blood transfusion should be administered to a young woman who was almost, not quite, 16, against her profound religious beliefs. X is a Jehovah’s Witness. She has explained to me, in very powerful and moving words, the . .
Lists of cited by and citing cases may be incomplete.

Children, Health

Updated: 30 April 2022; Ref: scu.211399

In Re B (A Minor) (Wardship: Medical Treatment): CA 1981

The child was born with Down’s Syndrome and an intestinal blockage. She needed the obstruction to be relieved if she was to survive. If the operation were performed, the child might die within a few months but it was probable that her life expectancy would be 20-30 years. Her parents, having decided that it would be kinder to allow her to die rather than live as a physically and mentally disabled person, refused to consent to the operation. The local authority made the child a ward of court and, when a surgeon decided that the wishes of the parents should be respected, they sought an order authorising the operation to be performed by other named surgeons.
Held: The appeal was allowed. The question for the court was whether it was in the best interests of the child that she should have the operation and not whether the wishes of the parents should be respected. The evidence disclosed that if the operation was performed the child would live the normal span of life of a mongol.
Dunn LJ said: ‘I have great sympathy for the parents in the agonising decision to which they came. As they put it themselves, ‘God or nature has given the child a way out’. But the child now being a ward of court, although due weight must be given to the decision of the parents which everybody accepts was an entirely responsible one, doing what they considered was best, the fact of the matter is that this court now has to make the decision. It cannot hide behind the decision of the parents or the decision of the doctors; and in making the decision this court’s first and paramount consideration is the welfare of this unhappy little baby.’
Templeman LJ said: ‘On behalf of the parents Mr Gray has submitted very movingly . . that this is a case where nature has made its own arrangements to terminate a life which would not be fruitful and nature should not be interfered with. He has also submitted that in this kind of decision the views of responsible and caring parents, as these are, should be respected, and that their decision that it is better for the child to be allowed to die should be respected. Fortunately or unfortunately, in this particular case the decision no longer lies with the parents or with the doctors, but lies with the court. It is a decision which of course must be taken in the light of the evidence and views expressed by the parents and the doctors, but at the end of the day it devolves on this court in this particular instance to decide whether the life of this child is demonstrably going to be so awful that in effect the child must be condemned to die, or whether the life of this child is still so imponderable that it would be wrong for her to be condemned to die. ‘

Judges:

Templeman LJ, Dunn LJ

Citations:

[1990] 3 All ER 927, [1981] 1 WLR 1424

Jurisdiction:

England and Wales

Cited by:

Cited – Airedale NHS Trust v Bland FD 19-Nov-1992
The patient had suffered catastrophic injuries in 1989, leaving him in a persistent vegetative state (PVS). The doctors sought leave to discontinue life maintaining treatment and medical support. The inevitable result would be his death. The . .
Cited – Airedale NHS Trust v Bland CA 9-Dec-1992
The official Solicitor appealed against a decision that doctors could withdraw medical treatment including artificial nutrition, from a patient in persistent vegetative state.
Held: The doctors sought permission to act in accordance with . .
Considered – In re J (a Minor) (Wardship: Medical treatment) CA 1-Oct-1990
J was born at 27 weeks’, weighing only 1.1kg. He suffered very severe and permanent brain damage at the time of his birth, the brain tissue then lost being irreplaceable. He was epileptic and the medical evidence was that he was likely to develop . .
Cited – An Hospital NHS Trust v S (By her Litigation Friend the Official Solicitor) And DG (S’s Father) and SG (S’s Mother) FD 6-Mar-2003
The hospital sought a declaration that it had no obligation to provide a kidney transplant to an eighteen year old youth who had had very severe disabilities since birth. It was argued that his mental condition meant that he would be unable to cope . .
Cited – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .
Cited – Wyatt and Another v Portsmouth Hospital NHS and Another CA 12-Oct-2005
The appellants’ daughter had been born with very severe disabilities. Her doctors obtained an order allowing them a discretion not to ventilate her to keep her alive if necessary. She had improved, but the family now sought leave to appeal an order . .
Applied – In re J (a Minor) (Wardship: Medical Treatment) CA 1986
The court referred to a case of extremely painful treatment causing continuous agony or such continuous sedation as to lead to there being no conscious life at all. The child suffered a condition which included the likelihood of periodic respiratory . .
Cited – In re T (a Minor) CA 24-Oct-1996
C was born with a liver defect. After a failed operation, the parents, both caring health professionals, decided not to put him through major surgery again. The local authority and doctors obtained an order to allow a potentially life saving liver . .
Cited – Aintree University Hospitals NHS Foundation Trust v James SC 30-Oct-2013
The hospital where a gravely ill man had been treated had asked for a declaration that it would be in his best interests to withhold certain life-sustaining treatments from him. When can it be in the best interests of a living patient to withhold . .
Cited – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .
Lists of cited by and citing cases may be incomplete.

Children, Health

Updated: 30 April 2022; Ref: scu.211400

In re C (Abduction: Consent): FD 1996

The Convention specifically placed the issue of consent within article 13.

Judges:

Holman J

Citations:

[1996] 1 FLR 416

Statutes:

Hague Convention on the Civil Aspects of International Child Abduction 12 13

Cited by:

Disappoved – In re O (Abduction: Consent and Acquiescence) FD 1997
. .
Approved – T v T (Abduction: Consent) FD 1999
. .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 30 April 2022; Ref: scu.200447

V v V (Children) (Contact: Implacable Hostility): FD 20 May 2004

The father applied for contact or residence for his children. The mother had over a long period of time consistently undermined and frustrated court orders.
Held: The children should reside with their father. The mother had made many unfounded allegations against the father, and had wasted many hours of judicial time. Such behaviour was not unusual. The improvement in court procedures to avoid such behaviour could not be a complete remedy, and legislation appeared to be required.

Judges:

Mrs J Bracewell

Citations:

Times 28-May-2004

Children

Updated: 30 April 2022; Ref: scu.197899

Regina v Hammersmith and Fulham LBC ex part D: 1999

It was not outside a local authority’s powers to supply an air ticket to assist a failed asylum seeker to return home with her children.

Judges:

Kay J

Citations:

[1999] 1 FLR 642

Jurisdiction:

England and Wales

Cited by:

Cited – M v London Borough of Islington and Another CA 2-Apr-2004
The applicant asylum seeker had had her application refused, and was awaiting a removal order. She had a child and asked the authority to house her pending her removal.
Held: Provided she was not in breach of the removal order, the council had . .
Lists of cited by and citing cases may be incomplete.

Local Government, Children, Immigration

Updated: 29 April 2022; Ref: scu.196548

Regina v Gwynedd County Council ex parte B and Another: 1992

The ambit of the 1980 act does not extend to regulating events arising after a child’s death.

Citations:

[1992] 3 All ER 317

Statutes:

Child Care Act 1980

Jurisdiction:

England and Wales

Citing:

Approved – Regina v Vann 1851
A parent of a child who had not the means of providing for the burial of the body of his deceased child was not liable to be indicted for the misdemeanour of not providing for its burial, even though a nuisance was occasioned by the body remaining . .

Cited by:

Cited – AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
Cited – Re JS (Disposal of Body) FD 10-Nov-2016
Child’s Wish for post-mortem cryonic Preservation
JS, a child of 14, anticipating her death from cancer expressed the desire that her body should receive cryonic preservation in the hope that one day a treatment might be available to allow her to be revived, and proceedings were issued. Her parents . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Children

Updated: 29 April 2022; Ref: scu.195009

Re L (A Minor) (Wardship: Freedom of Publication): FD 1988

The mere fact that a child is known to be a ward of court is not sufficient to make any publication identifying the child a contempt of court.

Judges:

Booth J

Citations:

[1988] 1 All ER 418

Statutes:

Contempt of Court Act 1981 12

Jurisdiction:

England and Wales

Cited by:

Cited – Kent County Council v The Mother, The Father, B (By Her Children’s Guardian); Re B (A Child) (Disclosure) FD 19-Mar-2004
The council had taken the applicant’s children into care alleging that the mother had harmed them. In the light of the subsequent cases casting doubt on such findings, the mother sought the return of her children. She applied now that the hearings . .
Cited – Kelly (A Minor) v British Broadcasting Corporation FD 25-Jul-2000
K, aged 16, had left home to join what was said to be a religious sect. His whereabouts were unknown. He had been made a ward of court and the Official Solicitor was appointed to represent his interests. He had sent messages to say that he was well . .
Lists of cited by and citing cases may be incomplete.

Children, Media, Contempt of Court

Updated: 29 April 2022; Ref: scu.194848

Galloway v Galloway: HL 1956

The court considered the interpretation of a provision in a statute continued from an earlier statute.
Viscount Radcliffe said: ‘I must confess that I do not lend a sympathetic ear to this last and almost mystical method of discovering the law, least of all when it depends upon a consolidating Act the function of which is to repeat, but not to amend, existing statute law.’
Under the common law, reference in a statute to ‘child’ or ‘children’ would prima facie mean a legitimate child or legitimate children.

Judges:

Viscount Radcliffe, Lord Tucker, Lord Oaksey

Citations:

[1956] AC 299, [1955] 3 All ER 429

Jurisdiction:

England and Wales

Cited by:

Cited – Dunnachie v Kingston Upon Hull City Council CA 11-Feb-2004
Compensation for non-economic loss brought about by the manner of an unfair dismissal is, on authority and on principle, recoverable. The award of such compensation by the employment tribunal in the present case was not excessive and was adequately . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Children

Updated: 29 April 2022; Ref: scu.194792

Regina v Wigan Metropolitan Borough Council, Ex parte Tammadge: 1998

Judges:

Forbes J

Citations:

(1998) 1 CCLR 581

Statutes:

Children Act 1989 17(1)

Cited by:

Cited – Regina v London Borough of Barnet ex parte G; Regina v London Borough of Lambeth ex parte W; Regina v London Borough of Lambeth ex parte A HL 23-Oct-2003
The applicants sought to oblige the local authority, in compliance with its duties under the 1989 Act, to provide a home for children, and where necessary an accompanying adult.
Held: There were four hurdles for the applicants to cross. They . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 29 April 2022; Ref: scu.187192

Andersson and Kullman v Sweden: ECHR 1986

The Comission found inadmissible an allegation that Sweden had infringed Article 8 by not providing financial assistance to a mother to allow her to stay at home to look after her children, rather than placing them in a creche and going out to work. ‘The Convention does not as such guarantee the right to public assistance either in the form of financial support to maintain a certain standard of living or in the form of supplying day home care places. Nor does the right under Article 8 of the Convention to respect for family life extend so far as to impose on States a general obligation to provide for financial assistance to individuals in order to enable one of two parents to stay at home to take care of children’.

Citations:

(1986) 46 DR 251

Statutes:

European Convention on Human Rights 8

Cited by:

Cited – Anufrijeva and Another v London Borough of Southwark CA 16-Oct-2003
The various claimants sought damages for established breaches of their human rights involving breaches of statutory duty by way of maladministration. Does the state have a duty to provide support so as to avoid a threat to the family life of the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Children

Updated: 29 April 2022; Ref: scu.186961

In re C (a Child) (Immunisation: Parental rights); In re F (a Child) (Imminisation: Parental rights): CA 30 Jul 2003

In two actions heard together, single mothers resisted attempts to have their children immunised at the behest of the fathers, who in each case had parental responsibility.
Held: A one-parent carer did not have the freedom to make such a choice when the other parent sought that the child should be immunised. Doctors had provided expert evidence in support of the advisability of immunisations, and the judge had considered the various treatments in turn. Disputes on the value and safety of such treatments ought not to be decided at the behest of one of the two parents in the absence of agreement. Immunisation was not an invasive treatment, and ‘In re J’ did not support the mothers’ cases. It was rather preventive health care, and it was the duty of the State to promote it. The witness employed by the mothers had used junk science, and their case was against the weight of the evidence.

Judges:

Thorpe, Sedley LJJ, Sir Anthony Evans

Citations:

Times 15-Aug-2003

Jurisdiction:

England and Wales

Citing:

Appeal from – In re C (a Child) (Immunisation: Parental Rights); In re F (a Child) (Immunisation: Parental rights) FD 13-Jun-2003
In each case fathers not married to the mother of the child, but with parental responsibility sought to have the child immunised. The mothers opposed the treatment saying they believed it unsafe.
Held: The children should be immunised. Article . .
Cited – In Re J (A Minor) (Prohibited Steps Order: Circumcision) CA 22-Dec-1999
Where there was a dispute between parents as to the necessity or propriety of circumcising a child, it was appropriate that the court should be involved to make the decision. Such decisions were vital to the child’s upbringing and irreversible. Here . .

Cited by:

Appealed to – In re C (a Child) (Immunisation: Parental Rights); In re F (a Child) (Immunisation: Parental rights) FD 13-Jun-2003
In each case fathers not married to the mother of the child, but with parental responsibility sought to have the child immunised. The mothers opposed the treatment saying they believed it unsafe.
Held: The children should be immunised. Article . .
Lists of cited by and citing cases may be incomplete.

Children, Health

Updated: 29 April 2022; Ref: scu.185873

In re G (Parentage: Blood Sample): CA 1997

Citations:

[1997] 1 FLR 360

Jurisdiction:

England and Wales

Citing:

Followed – In Re W v G (Paternity); In Re A (A Minor) CA 18-May-1994
The judge was wrong to limit his ability to draw inferences from a putative father’s refusal to take a test to discover paternity. . .

Cited by:

Applied – Secretary of State for Work and Pensions v Jones FD 2-Jul-2003
The appellant Secretary of State challenged a decision of magistrates as to whether the respondent was the father of a child for whom Child Support was sought. The mother had been married, but had been living with the respondent at the appropriate . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 29 April 2022; Ref: scu.185859

Secretary of State for Work and Pensions v Jones: FD 2 Jul 2003

The appellant Secretary of State challenged a decision of magistrates as to whether the respondent was the father of a child for whom Child Support was sought. The mother had been married, but had been living with the respondent at the appropriate time. The respondent had refused to provide a DNA sample for testing. The magistrates applied the presumption that a child born in wedlock was the child of the husband.
Held: The magistrates had erred in law. The presumption which followed a refusal to provide a sample was virtually inescapable, and should be given greater weight than the presumption of legitimacy. The result, if the magistrates had been correct, was that a child could never obtain a declaration of paternity, which would impact upon the child’s right to family life.

Judges:

Elizabeth Butler-Sloss President

Citations:

Times 13-Aug-2003, Gazette 18-Sep-2003

Statutes:

Family Law Act 1986

Jurisdiction:

England and Wales

Citing:

Applied – In Re W v G (Paternity); In Re A (A Minor) CA 18-May-1994
The judge was wrong to limit his ability to draw inferences from a putative father’s refusal to take a test to discover paternity. . .
Applied – In re G (Parentage: Blood Sample) CA 1997
. .
Lists of cited by and citing cases may be incomplete.

Child Support, Children

Updated: 29 April 2022; Ref: scu.185857

In re H (a Minor) (Child abduction: Mother’s Asylum): FD 25 Jul 2003

The mother fled Pakistan and secured asylum here, proving a well founded fear of persecution if she returned. She had brought her son. The father applied for the child to be returned for the courts there to decide his future, saying he had been abducted.
Held: To order the return of the child anticipating the mother could pursue her claim in Pakistan anticipated her being required to return to the country where she had been found to have a proper fear of persecution. The father offered undertakings which it was concluded could provide adequate protection to the mother. Pakistan was not party to the 1980 Convention. The child’s welfare was paramount. The 1980 Convention provided that the optimum programme for the child should be determined from his history, that a decision should be made without reference to a unilateral relocation by one parent, and the duty where tow jurisdictaions may be in conflict for one to cede jurisdiction quickly. In a difficult balancing exercise, the undertakings would make it possible for the wife to plead her case in Pakistan, and the child should be returned.

Judges:

Wilson J

Citations:

Times 08-Aug-2003

Statutes:

Children Act 1989 1, Hague Convention on the Civil Aspects of International Child Abduction 1980 (Cmnd 8281), Child Abduction and Custody Act 1985 P-1, Convention Relating to the Status of Refugees 1951 (Cmd 9171)

Jurisdiction:

England and Wales

Children, Immigration

Updated: 29 April 2022; Ref: scu.185844

Re W (Wards) (Publication of Information): FD 1989

An injunction was given to prohibit wards of court being named during the Cleveland child abuse inquiry. A summary of what has been said in court and written before hand in statements and reports are as much prohibited from publication as are direct quotations.

Citations:

[1989] 1 FLR 246

Jurisdiction:

England and Wales

Cited by:

Cited – Re S (A Child) CA 10-Jul-2003
The mother of the child on behalf of whom the application was made, was to face trial for murder. The child was in care and an order was sought to restrain publiction of material which might reveal his identity, including matters arising during the . .
Cited – In re S (A Child) (Identification: Restrictions on Publication) CA 10-Jul-2003
An order was sought to protect from publicity a child whose mother faced trial for the murder of his brother. The child was now in care.
Held: The court must balance the need to protect the child with the need for freedom of the press. The . .
Cited – Kent County Council v The Mother, The Father, B (By Her Children’s Guardian); Re B (A Child) (Disclosure) FD 19-Mar-2004
The council had taken the applicant’s children into care alleging that the mother had harmed them. In the light of the subsequent cases casting doubt on such findings, the mother sought the return of her children. She applied now that the hearings . .
Cited – X v Dempster FD 9-Nov-1998
The columnist Nigel Dempster had written that the mother in forthcoming proceedings relating to a child was a bad mother.
Held: The article was a contempt of court. Such an allegation required proof to the criminal standard. At common law the . .
Cited – Pickering v Liverpool Daily Post and Echo Newspapers plc HL 1991
Damages were awarded for a breach of statutory duty where the claimant had suffered loss or damage by reason of the breach. The publication at issue went beyond reporting and ‘it reached deeply into the substance of the matter which the court had . .
Lists of cited by and citing cases may be incomplete.

Children, Media

Updated: 29 April 2022; Ref: scu.184566

In re W (A Minor) (Wardship: Restrictions on Publication): CA 1992

The court considered the risks of a child being identified despite restrictions on disclosure: ‘It is to be anticipated that in almost every case the public interest in favour of publication can be satisfied without any identification of the ward to persons other than those who already know the facts. It seems to me, however, that the risk of some wider identification may have to be accepted on occasions if the story is to be told in a manner which will engage the interest of the general public.’
It was for the party urging restraint on publication to justify it by evidence as necessary and proportionate.

Judges:

Neill LJ

Citations:

[1992] 1 WLR 100

Statutes:

European Convention on Human Rights 10

Jurisdiction:

England and Wales

Cited by:

Cited – Re S (A Child) CA 10-Jul-2003
The mother of the child on behalf of whom the application was made, was to face trial for murder. The child was in care and an order was sought to restrain publiction of material which might reveal his identity, including matters arising during the . .
Cited – In re S (A Child) (Identification: Restrictions on Publication) CA 10-Jul-2003
An order was sought to protect from publicity a child whose mother faced trial for the murder of his brother. The child was now in care.
Held: The court must balance the need to protect the child with the need for freedom of the press. The . .
Cited – Kent County Council v The Mother, The Father, B (By Her Children’s Guardian); Re B (A Child) (Disclosure) FD 19-Mar-2004
The council had taken the applicant’s children into care alleging that the mother had harmed them. In the light of the subsequent cases casting doubt on such findings, the mother sought the return of her children. She applied now that the hearings . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Lists of cited by and citing cases may be incomplete.

Children, Media

Updated: 29 April 2022; Ref: scu.184557

Re C (Wardship: Medical Treatment) (No 2): CA 1989

The court had already made an order about the way in which the health professionals were able to look after a severely disabled baby girl; an injunction was granted prohibiting identification of the child, her parents, her current carers and the hospital where she was being looked after. Although the child herself would know nothing of any publicity, she was entitled to medical confidentiality, and her welfare would be affected by the peace of mind of her carers. ‘Unless the public interest or a private right enforceable by the courts requires an injunction, the courts cannot intervene. On the facts of this case such intervention can only be justified upon one or other or a combination of two bases. These are (1) that the injunction is necessary for the welfare of C or for safeguarding her rights and (2) that the injunction is necessary in the interests of the administration of justice.’ An obligation of confidentiality was owed to a baby by those who had been caring for her.

Judges:

Lord Donaldson MR, Balcombe LJ, Nicholls LJ

Citations:

[1990] Fam 39

Jurisdiction:

England and Wales

Cited by:

Cited – Re S (A Child) CA 10-Jul-2003
The mother of the child on behalf of whom the application was made, was to face trial for murder. The child was in care and an order was sought to restrain publiction of material which might reveal his identity, including matters arising during the . .
Considered – In re J (a Minor) (Wardship: Medical treatment) CA 1-Oct-1990
J was born at 27 weeks’, weighing only 1.1kg. He suffered very severe and permanent brain damage at the time of his birth, the brain tissue then lost being irreplaceable. He was epileptic and the medical evidence was that he was likely to develop . .
See also – In re C (A Minor) (Wardship: Medical Treatment) CA 1989
. .
Cited – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – Kelly (A Minor) v British Broadcasting Corporation FD 25-Jul-2000
K, aged 16, had left home to join what was said to be a religious sect. His whereabouts were unknown. He had been made a ward of court and the Official Solicitor was appointed to represent his interests. He had sent messages to say that he was well . .
Lists of cited by and citing cases may be incomplete.

Children, Media

Updated: 29 April 2022; Ref: scu.184567

In re M and N (Minors) (Wardship: Publication of Information): CA 1990

The court considered whether to order that a child’s name be not published where the decision to publish would not affect the way in which the child is cared for, the child’s welfare is relevant but not paramount and must be balanced against freedom of expression. The court’s jurisdiction does not extend to ‘injunctive protection of children from publicity which though inimicable to their welfare is not directed at them or those who care for them’. Butler-Sloss LJ said: ‘in this situation the welfare of the child is not the paramount consideration’. As to the evidence required to support a request for an injunction: ‘It has also been suggested that the evidence to be presented to the judge, at least on the inter partes hearing, should include specific evidence of, for instance, psychological harm likely to be caused to the child by the publication proposed. Again, in my view, that is a misconception, both of the function of and the experience of those sitting in the Family Division. In In re X that evidence was available and rightly did not sway the decision. The evidence of child psychiatrists is invaluable in many of the difficult decisions to be made in child cases. In my view, it is not normally necessary in order to assist a judge in balancing the welfare of the child and the right to publish and whether the child and others in the proceedings should or should not be identified’.’

Judges:

Butler-Sloss LJ

Citations:

[1990] Fam 211

Jurisdiction:

England and Wales

Cited by:

Cited – Re S (A Child) CA 10-Jul-2003
The mother of the child on behalf of whom the application was made, was to face trial for murder. The child was in care and an order was sought to restrain publiction of material which might reveal his identity, including matters arising during the . .
Cited – R (Mrs) v Central Independent Television Plc CA 17-Feb-1994
The court did not have power to stop a TV program identifying a ward of court, but which was not about the care of the ward. The first instance court had granted an injunction in relation to a television programme dealing with the arrest and the . .
Cited – In re S (A Child) (Identification: Restrictions on Publication) CA 10-Jul-2003
An order was sought to protect from publicity a child whose mother faced trial for the murder of his brother. The child was now in care.
Held: The court must balance the need to protect the child with the need for freedom of the press. The . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
Cited – Kelly (A Minor) v British Broadcasting Corporation FD 25-Jul-2000
K, aged 16, had left home to join what was said to be a religious sect. His whereabouts were unknown. He had been made a ward of court and the Official Solicitor was appointed to represent his interests. He had sent messages to say that he was well . .
Lists of cited by and citing cases may be incomplete.

Children, Media

Updated: 29 April 2022; Ref: scu.184556

In re B (Childen: Patient Confidentiality): CA 21 May 2003

A pyschiatrist treating a child was given information under the cloak of professional privilege, to suggest there had been abuse. She had reported her concerns to the child protection services, and gone on to make a statement.
Held: A health professional in such circumstances may well be correct to break confidentialty but must recognise that if she goes beyond reporting her concerns to making a statement, she cannot then object to being called as witness if that evidence is used.

Judges:

Thorpe, LJ, Bodey J

Citations:

Times 01-Jul-2003

Jurisdiction:

England and Wales

Children, Health Professions

Updated: 29 April 2022; Ref: scu.184144

In re P (A Minor): 1981

Citations:

[1981] 80 LGR 301

Jurisdiction:

England and Wales

Cited by:

Cited – Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security HL 17-Oct-1985
Lawfulness of Contraceptive advice for Girls
The claimant had young daughters. She challenged advice given to doctors by the second respondent allowing them to give contraceptive advice to girls under 16, and the right of the first defendant to act upon that advice. She objected that the . .
Lists of cited by and citing cases may be incomplete.

Local Government, Children

Updated: 29 April 2022; Ref: scu.183453

Re A and W (Minors) (Residence Order Leave to Apply): 1992

Citations:

[1992] 2 FLR 154

Cited by:

Cited – Re A (a Minor) CA 31-Jul-1997
After a family break up there had been continued litigation, and a refusal to comply with court orders by the mother. Eventually, the contact between mother an children all but broke down. There were three children. As the two elder children in turn . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 29 April 2022; Ref: scu.183132

In re A (Wardship jurisdiction): 1995

Citations:

[1995] 1 FLR 767

Cited by:

Queried – In Re M (A Minor) (Habitual Residence) CA 3-Jan-1996
An habitual residence dispute is a dispute on a matter of fact not of law. It cannot be settled by the choice of the parents. A child cannot acquire habitual residence in a country without actually being physically present in that country. . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 29 April 2022; Ref: scu.183173

In re W (a Minor) (Wardship: Jurisdiction): HL 1985

Relatives of a child who was in local authority care disagreed with the authority’s plans for her future.
Held: They could not challenge them by seeking a determination on the merits in wardship.
Lord Scarman referred to Liverpool v A and said: ‘Authoritative speeches were delivered by Lord Wilberforce and Lord Roskill which it was reasonable to hope would put an end to attempts to use the wardship jurisdiction so as to secure a review by the High Court on the merits of decisions taken by local authorities pursuant to the duties and powers imposed and conferred on them by the statutory code.’ and ‘The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority. It matters not that the chosen public authority is one which acts administratively whereas the court, if seized of the same matter, would act judicially. If Parliament in an area of concern defined by statute (the area in this case being the care of children in need or trouble) prefers power to be exercised administratively instead of judicially, so be it. The courts must be careful in that area to avoid assuming a supervisory role or reviewing power over the merits of decisions taken administratively by the selected public authority.’
Lord Scarman disputed what were the parens patriae powers of the Family Court (as opposed to High court’s powers in judicial review): ‘The ground of decision in A v Liverpool City Council [1982] AC 363 was nothing to do with judicial discretion but was an application in this field of the profoundly important rule that where Parliament has by statute entrusted to a public authority an administrative power subject to safeguards which, however, contain no provision that the High Court is to be required to review the merits of decisions taken pursuant to the power, the High Court has no right to intervene. If there is abuse of the power, there can of course be judicial review pursuant to RSC Ord 53: but no abuse of power has been, or could be, suggested in this case.’

Judges:

Lord Scarman

Citations:

[1985] AC 791, [1985] 2 All ER 301, [1985] 2 WLR 892, (1985) 149 JP 593, (1985) 83 LGR 669, [1985] Fam Law 326

Jurisdiction:

England and Wales

Citing:

Cited – A v Liverpool City Council HL 1981
Though the child was subject to a care order in favour of the local authority, a wardship order was sought.
Held: Once a care order had been made, whether final or interim, the court was effectively faced with a choice and not a choice which . .

Cited by:

Cited – A (a Patient) v A Health Authority and Others; In re J (a Child); Regina (S) v Secretary of State for the Home Department and Another CA 24-Jan-2002
The case asked how cases involving disputes as to the care of children, and of the treatment of adults claimed to be mentally incompetent. Where the issues were solely ones of public law, then they should be heard by way of judicial review in the . .
Cited – Re A Ward of Court FD 4-May-2017
Ward has no extra privilege from Police Interview
The court considered the need to apply to court in respect of the care of a ward of the court when the Security services needed to investigate possible terrorist involvement of her and of her contacts. Application was made for a declaration as to . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 29 April 2022; Ref: scu.182862

In re F (otherwise A ) (A Minor) (Publication of Information): CA 1977

An allegation of contempt was made in proceedings related to the publication by a newspaper of extracts from a report by a social worker and a report by the Official Solicitor, both prepared after the commencement and for the purpose of the wardship proceedings.
Held: What was published was ‘information relating to [the] proceedings’ within the meaning of section 12. The Court drew a distinction between publication of information about a child (a ward), the publication of which was not of itself a contempt at common law, and is not a contempt under section 12, and, on the other hand, the publication of information relating to proceedings about the child (ward), which is in principle a contempt if the court has been sitting in private.
Section 12 of the 1960 Act does not mean that every newspaper report about award of court will be in contempt.
Scarman LJ said: ‘[The judge] construed the statutory words ‘information relating to proceedings before a court sitting in private’ as having a wider meaning than information relating to an actual or imminent hearing. Indeed, he construed the words so as to include information about the ward irrespective of whether the information related to a hearing or not. He accepted that there was no reported case at common law which went further than to declare an account of the proceedings (or of the order made) to be a contempt; but, bearing in mind the nature of wardship, he interpreted ‘proceedings’ as meaning ‘a continuing state of affairs for as long as the wardship lasts . . I do not so interpret the section. I think the judge . . gave too wide a meaning to ‘proceedings’ . . Prior to 1960, as the judge recognised, no court is known to have treated as a contempt anything that was not an account of legal proceedings. By retaining the word ‘proceedings’. Parliament must have intended to maintain the relationship between contempt of court and a court’s proceedings. As I read the section, what is protected from publication is the proceedings of the court; in all other respects the ward enjoys no greater protection against unwelcome publicity than other children. If the information published relates to the ward, but not to the proceedings, there is no contempt; as North J commented in Martindale’s case [1894] 3 Ch 193, 201, there would have been no contempt in that case had the newspaper confined its report to the fact of the ward’s marriage’. And
‘The words, in their context, need mean no more than that there is a contempt in the absence of a defence recognised by law. If Parliament had intended to treat publication of information relating to proceedings before a court sitting in private as a contempt irrespective of circumstances, I would have expected express provision to that effect. Circumstances can and do arise in which Parliament must have intended the old law to continue, for example, where the court authorises publication or where by the passage of time ‘the rule of publicity [is] resumed’ (Lord Shaw of Dunfermline, Scott v Scott [1913] AC 417 at 483). Similarly, if, as I believe, the pre-existing law recognised a defence that the publisher neither knew nor ought to have known that the information published related to proceedings before a court in private, one would have expected express provision if such a defence was to be taken away.’
Lord Denning MR said: ‘There is no suggestion anywhere that it was a contempt of court to publish information about the ward herself, be it favourable or adverse, helpful or injurious to her. But there are cases to show that it was a contempt of court to publish information relating to the proceedings in court about a ward . . When the court . . sat in private to hear wardship proceedings, the very sitting in private carried with it a prohibition forbidding publication of anything that took place, save only for the formal order made by the judge or an accurate summary of it.’
As to section 12 ‘the prohibition would, I think, apply, not only to information given to the judge at the actual hearing, but also to confidential reports submitted beforehand by the Official Solicitor, or social workers, or the like.’
Geoffrey Lane LJ asked: ‘what is meant by ‘proceedings’? Obviously a report of the actual hearing before the judge or part of it is included. But the words must include more than that; otherwise it would have been unnecessary to use the expression ‘information relating to proceedings’ . . The object is to protect from publication information which the person giving it believes to be protected by the cloak of secrecy provided by the court. ‘Proceedings’ must include such matters as statements of evidence, reports, accounts of interviews and such like, which are prepared for use in court once the wardship proceedings have been properly set on foot.’
Lord Denning MR said: ‘The existence of wardship does not give the ward a privilege over and above other young people who are not wards. It does not give her exemption from comment on her activities, be they favourable or adverse, be they helpful to her or injurious. The remedy for defamatory remarks about a ward is the law of libel, not of contempt of court.’

Judges:

Scarman LJ, Lord Denning MR, Geoffrey Lane LJ

Citations:

[1977] 1 All ER 114, [1976] 3 WLR 813, [1977] Fam 58

Statutes:

Administration of Justice Act 1960 12(1)

Jurisdiction:

England and Wales

Citing:

Appeal from – In re F (otherwise A) (A Minor) (Publication of Information) FD 1976
. .
Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Cited – In re Martindale 1894
Miss Martindale was made a ward of court on 11 April 1894. Knowing that she was a ward of court a young poet and novelist named Ford Madox Hueffer – later known as Ford Madox Ford – married her in May 1894. On 1 June 1894 North J granted an . .

Cited by:

Cited – Attorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
Cited – Re S (A Child) CA 10-Jul-2003
The mother of the child on behalf of whom the application was made, was to face trial for murder. The child was in care and an order was sought to restrain publiction of material which might reveal his identity, including matters arising during the . .
Cited – In re S (A Child) (Identification: Restrictions on Publication) CA 10-Jul-2003
An order was sought to protect from publicity a child whose mother faced trial for the murder of his brother. The child was now in care.
Held: The court must balance the need to protect the child with the need for freedom of the press. The . .
Cited – Kent County Council v The Mother, The Father, B (By Her Children’s Guardian); Re B (A Child) (Disclosure) FD 19-Mar-2004
The council had taken the applicant’s children into care alleging that the mother had harmed them. In the light of the subsequent cases casting doubt on such findings, the mother sought the return of her children. She applied now that the hearings . .
Cited – X v Dempster FD 9-Nov-1998
The columnist Nigel Dempster had written that the mother in forthcoming proceedings relating to a child was a bad mother.
Held: The article was a contempt of court. Such an allegation required proof to the criminal standard. At common law the . .
Cited – Greene v Associated Newspapers Ltd CA 5-Nov-2004
The claimant appealed against refusal of an order restraining publication by the respondent of an article about her. She said that it was based upon an email falsely attributed to her.
Held: ‘in an action for defamation a court will not impose . .
Cited – Norfolk County Council v Webster and others FD 1-Nov-2006
The claimants wished to claim that they were victims of a miscarriage of justice in the way the Council had dealt with care proceedings. They sought that the proceedings should be reported without the children being identified.
Held: A judge . .
Cited – Doctor A and Others v Ward and Another FD 8-Jan-2010
Parents wished to publicise the way care proceedings had been handled, naming the doctors, social workers and experts some of whom had been criticised. Their names had been shown as initials so far, and interim contra mundum orders had been made . .
Cited – Kelly (A Minor) v British Broadcasting Corporation FD 25-Jul-2000
K, aged 16, had left home to join what was said to be a religious sect. His whereabouts were unknown. He had been made a ward of court and the Official Solicitor was appointed to represent his interests. He had sent messages to say that he was well . .
Cited – Re A Ward of Court FD 4-May-2017
Ward has no extra privilege from Police Interview
The court considered the need to apply to court in respect of the care of a ward of the court when the Security services needed to investigate possible terrorist involvement of her and of her contacts. Application was made for a declaration as to . .
Lists of cited by and citing cases may be incomplete.

Children, Contempt of Court

Updated: 29 April 2022; Ref: scu.182819

In re C (A Minor) (Wardship: Medical Treatment): CA 1989

Citations:

[1989] 2 All ER 782, [1989] 3 WLR 240, [1990] Fam 26

Jurisdiction:

England and Wales

Citing:

See also – Re C (Wardship: Medical Treatment) (No 2) CA 1989
The court had already made an order about the way in which the health professionals were able to look after a severely disabled baby girl; an injunction was granted prohibiting identification of the child, her parents, her current carers and the . .

Cited by:

Cited – Airedale NHS Trust v Bland CA 9-Dec-1992
The official Solicitor appealed against a decision that doctors could withdraw medical treatment including artificial nutrition, from a patient in persistent vegetative state.
Held: The doctors sought permission to act in accordance with . .
Cited – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .
Cited – Re A Ward of Court FD 4-May-2017
Ward has no extra privilege from Police Interview
The court considered the need to apply to court in respect of the care of a ward of the court when the Security services needed to investigate possible terrorist involvement of her and of her contacts. Application was made for a declaration as to . .
Lists of cited by and citing cases may be incomplete.

Children, Health

Updated: 28 April 2022; Ref: scu.180676

In re B (A Minor) (Wardship: Sterilisation): HL 1987

Paramount Consideration in Wardship Application

The House considered a case involving the sterilisation of a girl just under 18, who suffered from mental disability.
Held: A court exercising wardship jurisdiction, when reaching a decision on an application to authorise an operation for sterilisation of the ward, was concerned with only one primary and paramount consideration, the welfare of the child: ‘There is no doubt that, in the exercise of its wardship jurisdiction the first and paramount consideration is the well being, welfare, or interest (each expression occasionally used, but each, for this purpose, synonymous) of the human being concerned.’

Judges:

Lord Hailsham of St Marylebone LC

Citations:

[1988] AC 199, [1987] 2 All ER 206, [1987] 2 WLR 1213, Gazette 13-May-1987

Jurisdiction:

England and Wales

Cited by:

Cited – Airedale NHS Trust v Bland CA 9-Dec-1992
The official Solicitor appealed against a decision that doctors could withdraw medical treatment including artificial nutrition, from a patient in persistent vegetative state.
Held: The doctors sought permission to act in accordance with . .
Cited – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .
Cited – F v West Berkshire Health Authority HL 17-Jul-1990
The parties considered the propriety of a sterilisation of a woman who was, through mental incapacity, unable to give her consent.
Held: The appeal succeeded, and the operation would be lawful if the doctor considered it to be in the best . .
Cited – In re T (a Minor) CA 24-Oct-1996
C was born with a liver defect. After a failed operation, the parents, both caring health professionals, decided not to put him through major surgery again. The local authority and doctors obtained an order to allow a potentially life saving liver . .
Lists of cited by and citing cases may be incomplete.

Health, Children

Updated: 28 April 2022; Ref: scu.180670

In re H (Child’s name: First name): CA 29 Jan 2002

The parents were married, but separated after the wife became pregnant. Both the father and mother registered the birth, but under different first names. The father was first, and the mother’s registration was cancelled. None of the authorities about surname disputes applied to a child’s first name. The surname by which a child was registered and known was of particular significance, but it is commonplace for given names to vary, as by baptism.
Held: The mother should be allowed to use her chosen names for her daughter for certain external purposes, but she must recognise that the child had an immutable series of names by statutory registration. The judges order restraining her was overturned.

Judges:

Lord Justice Thorpe and Lord Justice Buxton

Citations:

Times 06-Feb-2002, Gazette 14-Mar-2002

Statutes:

Children Act 1989 8

Jurisdiction:

England and Wales

Children

Updated: 28 April 2022; Ref: scu.167567

T and V v The United Kingdom: ECHR 8 Apr 1999

Public trial in an adult court of juvenile charged with murder and imposition of a sentence of detention during Her Majesty’s pleasure with a tariff of fifteen years fixed by a member of the executive. The trial of two ten year olds in a public forum, under intense public scrutiny, made the trial unfair: ‘it is essential that a child charged with an offence is dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings’. A punitive measure should be set by the courts, and not by a political process, and a long sentence for a child must allow for later developments: ‘the fixing of a minimum term was part of the proceedings and amounted to a sentencing exercise; that article 6(1) was therefore applicable; that that article guaranteed a fair hearing by an impartial tribunal independent of the executive; and that the Secretary of State was clearly not independent of the executive.’

Citations:

Gazette 08-Apr-1999, (1999) 30 EHRR 12

Jurisdiction:

Human Rights

Citing:

See Also – Regina v Secretary of State For The Home Department, Ex Parte Venables, Regina v Secretary of State For The Home Department, Ex Parte Thompson HL 12-Jun-1997
A sentence of detention during her majesty’s pleasure when imposed on a youth was not the same as a sentence of life imprisonment, and the Home Secretary was wrong to treat it on the same basis and to make allowance for expressions of public . .

Cited by:

Cited – D (A Minor), Regina (on the Application of) v Camberwell Green Youth Court HL 27-Jan-2005
The defendant challenged the obligatory requirement that evidence given by a person under 17 in sex or violent offence cases must normally be given by video link.
Held: The purpose of the section was to improve the quality of the evidence . .
See Also – V v The United Kingdom; T v The United Kingdom ECHR 16-Dec-1999
The claimant challenged to the power of the Secretary of State to set a tariff where the sentence was imposed pursuant to section 53(1). The setting of the tariff was found to be a sentencing exercise which failed to comply with Article 6(1) of the . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Children, Criminal Sentencing

Updated: 28 April 2022; Ref: scu.89671