Category: Children

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 succeeded. There was no need for more formal guidelines on costs in child case – there will usually be no order.
Cazalet J said: ‘I have been urged . . to . . hold that there is a presumption of no order as to costs in child cases. I do not think that it is necessary to fetter a court’s discretion as to costs in this way, by applying presumptions or indeed more specific guide-lines. It seems to me that . . it would be unusual for a court to make an order for costs in a child case where the conduct of a party has not been reprehensible or the party’s stance has not been beyond the band of what is reasonable. Accordingly, any court in deciding the question of costs in child cases should, in my view, approach the question against that general proposition, and it would be a matter for the discretion of the court in the light of those criteria as to what order for costs should be made. In considering these questions the court will always look in particular at whether it was reasonable for one of the parties to have brought or to have maintained the proceedings . . As a matter of public policy . . where there is the exercise of nicely balanced judgment to be made by a local authority carrying out its statutory duties, the local authority should not feel than it is liable to be condemned in costs if, despite acting within the band of reasonableness . . it may form a different view to that which a court may ultimately adopt.’

Judges:

Cazalet J

Citations:

Ind Summary 09-Jan-1995, [1995] 1 FLR 533

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 . .

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 . .
Lists of cited by and citing cases may be incomplete.

Children, Costs

Updated: 28 April 2022; Ref: scu.85815

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 basis that a child was suffering significant harm after making interim arrangements for his protection which were in place at the date of the hearing, the relevant date at which the court had to be satisfied as to the presence of threshold conditions was the date on which protective arrangements were put in place. The court could not work from that date where, after that date, the need had passed. Where a court had to choose a care order or a residence order, section 1(3)(g) required it to be satisfied that the power to make an order was still available.

Judges:

Lord Mackay of Clashfern LC, Lord Templeman, Lord Jauncey of Tullichettle, Lord Slynn of Hadley and Lord Nolan

Citations:

Times 22-Jul-1994, Gazette 12-Oct-1994, Independent 18-Aug-1994, [1994] 2 AC 424, (1994) 92 LGR 701, [1994] 3 WLR 558, [1994] 3 All ER 298

Links:

lip

Statutes:

Children Act 1989 1(3)(g) 31(2)

Jurisdiction:

England and Wales

Citing:

Approved – J Sainsbury Plc v Moger 25-Feb-1994
The EAT should not accept an order by consent unless it is satisfied that there are good grounds for making the order. . .
Applied – In re D (A Minor); D v Berkshire County Council HL 1986
A baby was taken into care suffering from drug withdrawal symptoms from birth. On a literal reading of the phrase, ‘baby’s heath is being impaired’, the statutory test could never be met on the particular facts of the case.
Held: The phrase . .
Overruled – 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 . .
Distinguished – In re W (An Infant) HL 1971
The court considered the reasonability of parental disagreement in applications for adoption: ‘Two reasonable parents can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as . .
Appeal from – In Re M (Minor: Care Order) FD 20-Oct-1993
A Care order to protect a child against danger may not be made after the risk subsides. . .

Cited by:

Cited – Lancashire County Council and Another v B and Others; Lancashire County Council v A HL 16-Mar-2000
A seven month old child had been injured, but it was not possible to establish whether this had taken place whilst with her parents or with a child minder. The Council brought care proceedings also for the minder’s own child B.
Held: Even . .
Cited – AD and OH (A Child) v Bury Metropolitan Borough Council CA 17-Jan-2006
The claimants, mother and son, sought damages from the respondent after they had commenced care proceedings resulting in the son being taken into temporary care. The authority had wrongly suspected abuse. The boy was later found to suffer brittle . .
Cited – Manchester City Council v Moran and Another; Richards v Ipswich Borough Council CA 17-Apr-2008
The two applicants had occupied a women’s refuge. They appealed against a refusal to consider them as homeless when they acted in such a way as to be evicted from the refuge, saying that the refuge did not constitute ‘accommodation . . which it . .
Cited – In re J (Children) SC 20-Feb-2013
The mother had been, whilst in a previous relationship, involved in care proceedings after the death from physical abuse of her baby. Whilst being severely critical of her, the court had been unable to identify the author of the child’s death. Now, . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 28 April 2022; Ref: scu.85820

Re P (Minors): CA 7 Apr 1993

A local authority should seek to protect children by part IV applications and not under Part II. There is a lacuna in the Act. It was not to use the private law provisions of Part II of the Act to pursue public law objectives.

Citations:

Independent 09-Apr-1993, Independent 07-Apr-1993

Statutes:

Children Act 1989

Jurisdiction:

England and Wales

Children, Local Government

Updated: 28 April 2022; Ref: scu.85848

Re B (Minors: Contact): CA 7 Feb 1994

A Judge may deal with case on the papers and summarily or after an oral hearing at his discretion.

Citations:

Ind Summary 07-Feb-1994, [1994] 2 FLR 1

Jurisdiction:

England and Wales

Cited by:

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: 28 April 2022; Ref: scu.85725

In Re T (Minors) (Abduction: Custody Rights): CA 24 Apr 2000

Where a child of eleven years, but of greater maturity, made a compelling, reasoned and clear case for not being returned to one parent after an international abduction, the court could, with great care, refuse to order her return. Where two children were involved, and an order for the younger would split the children up, a court could also make an order refusing to return that child. It was possible for the child herself to make out the defence under the Convention.

Citations:

Times 24-Apr-2000

Statutes:

Child Abduction and Custody Act 1985

Jurisdiction:

England and Wales

Children

Updated: 28 April 2022; Ref: scu.82225

In Re T and Another (Children): CA 1 Feb 2000

In the course of care proceedings, the father, lately joined to them, asserted that the solicitor acting for the guardian ad litem had previously acted for him in unrelated proceedings. The solicitor declined to withdraw, saying that he had no memory of so acting, the files relating to it were old, and had been destroyed, and that there was no risk of disclosure of any confidential material. The appeal was denied. The father had to show a real rather than a fanciful risk of the disclosure of confidential information, and he had failed to do so.

Citations:

Times 01-Feb-2000, Gazette 20-Jan-2000

Jurisdiction:

England and Wales

Legal Professions, Children

Updated: 28 April 2022; Ref: scu.82229

In Re W (A Minor) (Secure Accommodation Order: Attendance At Court): FD 13 Jul 1994

A 10 year old child may be present in court on an application relating to him in exceptional circumstances.
Held: The child’s appeal was dismissed. Natural justice did not demand the child’s presence in court, and that the rules allowed the court to take the course that it had done. The court had an inherent power to control its own proceedings. The fact that the child would have to be physically restrained in court provided sufficient grounds to refuse to allow him to attend.
Ewbank J said: ‘On behalf of the Official Solicitor it is said that in general terms the presence of children in court is harmful to children, that children in care proceedings, and more particularly in secure accommodation proceedings, are amongst the most damaged and disadvantaged children in our community, and that it will be of no benefit to them to sit through to the end. Moreover, it is likely to increase their sense of responsibility for what is being decided, and to cause anxiety and distress. It is said that the court should be satisfied that the interests of the child indicate that the child should be in court if there is a suggestion that the child wishes to come.
It is said in behalf of the child that the liberty of the child is being curtailed, that this is equivalent to a custodial order in a criminal court, and natural justice demands that the child should be allowed to be in court before an order is made which will have that effect. For my part I cannot see any analogy between orders made in this Division and orders made by the criminal court. The purpose of the criminal court is to deal with criminal offences committed by people or children, and one of the aims at any rate of the criminal court is to punish the perpetrators.
This jurisdiction is entirely different. It is, as the Official Solicitor said, a benign jurisdiction. It is to protect the child, sometimes from others and sometimes from itself, and in some cases it is necessary in order to protect the child and to act as a good parent would act to curtail the child’s liberty for a time. The statute which provides for this is limited in its scope; not only the court but also the Secretary of State in the case of young children has to be satisfied that secure accommodation is necessary. I am told that there are probably some thousand children a year put into secure accommodation, so that the numbers of orders made are quite substantial.
In addition to the considerations of the interests of the child, which override any other considerations, there is also the inherent power of the court to control its own proceedings, and that is relevant in this particular case at the particular time that the district judge heard the case. It was his view on the evidence he heard or the reports he had read that the child would have to be physically ‘shackled’, as he put it, in court in order to control him. This in itself would be sufficient ground in the inherent jurisdiction of the court to refuse to allow the child to be in court. One can see that the prospect of disturbance or unruliness in court, or the possibility of the child being educationally subnormal, or the child being much younger than this child, would be examples of cases where the court would not allow the child to be in court for the hearing.
The local authority, as I mentioned, has had interim care orders since the early part of this year. Accordingly the mother and the local authority both have parental responsibility for this child. Both of them take the view that this child, at that stage, ought not to have been allowed to come to court. If either of them had taken a different view, that would have been a matter which the district judge ought to have taken into account.’
Ewbank J concluded: ‘In my judgment the court in dealing with an application for secure accommodation, and probably in dealing with an application for a care order, can allow the child to be in court, but the court must always bear in mind that attendance in court is likely to be harmful to the child, and the court should only allow the child to attend if it is satisfied that attendance is in the interests of the child. Certainly where the court is of the view on the material before it that the child is likely to be unruly, the court in its inherent jurisdiction can refuse to allow the child into the court.’

Judges:

Ewbank J

Citations:

Times 13-Jul-1994, [1994] 2 FLR 1092

Jurisdiction:

England and Wales

Citing:

Cited – Re C (A Minor) (Care: Child’s Wishes) FD 1993
Waite J discussed the propriety of a 13 year old attending the family proceedings court in a care application, saying: ‘I think it would be a pity if the presence of children as young as this at the hearing of High Court appeals from magistrates in . .

Cited by:

Cited – In re K (A Child) FD 16-May-2011
The court was asked whether K, a 13-year-old girl, should attend the hearing of an application by her local authority to keep her in secure accommodation for three months. She wanted to be at the hearing, but the local authority opposed her . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 28 April 2022; Ref: scu.82283

In Re W (A Minor) (Contact Application Procedure): FD 12 Oct 1999

It was no longer appropriate for family courts to hear applications for leave to apply for contact without requiring or allowing attendance of the parties and to make such decisions without recording the reasons. Such an application required the court to weigh the merits of the proposed application, and such a procedure required the parties to be allowed to attend, and for reasons to be recorded.

Citations:

Gazette 27-Oct-1999, Times 12-Oct-1999

Statutes:

Children Act 1989 10(9)

Jurisdiction:

England and Wales

Children, Family

Updated: 28 April 2022; Ref: scu.82266

In Re W (A Minor) (Parental Contact: Prohibition): CA 20 Jan 2000

Once a court has made an order granting care to the local authority, the court no longer has any jurisdiction to make an order to prohibit contact between the child and a parent. The regulations give explicit power to the authority to agree such an arrangement, and therefore any order would be unenforceable.

Citations:

Times 21-Jan-2000, Gazette 20-Jan-2000, Gazette 03-Feb-2000

Statutes:

Children Act 1989 34, Contact with Children Regulations 1991 (1991 No 891)

Jurisdiction:

England and Wales

Children

Updated: 28 April 2022; Ref: scu.82268

In Re T (A Minor)(Change of Surname): FD 8 Jul 1998

A child’s surname should be changed only with the consent of the father even though parties were unmarried, but particularly where the father has a parental responsibility order. Change back ordered even after several years.

Citations:

Gazette 08-Jul-1998, Times 23-Jun-1998

Jurisdiction:

England and Wales

Citing:

Cited – In Re C (A Minor) (Change of Name) CA 2-Feb-1998
A parent challenging a child’s lawful change of name after the event must do so against the background at time of name change; cogent reasons were needed. . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 28 April 2022; Ref: scu.82222

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.

Citations:

Times 03-Jan-1996, Ind Summary 29-Jan-1996, [1996] 1 FLR 887

Statutes:

Hague Convention on the Civil Aspects of International Child Abduction 1980

Jurisdiction:

England and Wales

Citing:

Queried – In re A (Wardship jurisdiction) 1995
. .
Applied – 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 by:

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 – 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 . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 28 April 2022; Ref: scu.82025

In Re M (Minor: Care Order): FD 20 Oct 1993

A Care order to protect a child against danger may not be made after the risk subsides.

Citations:

Times 20-Oct-1993

Statutes:

Children Act 1989 3(2)

Jurisdiction:

England and Wales

Cited by:

Appeal from – 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: 28 April 2022; Ref: scu.82029

In Re K (A Minor) (Removal From Jurisdiction: Practice): FD 29 Jul 1999

Where a child was subject to a contact order, and one parent sought to take the child abroad on holiday to a country which was not a signatory to the Convention, that application should be dealt with by a High Court Judge, and must be thoroughly prepared and investigated, since the risk of the parent not returning would be irredeemable. Undertakings were not sufficient.

Citations:

Times 29-Jul-1999

Statutes:

Convention on the Civil Aspects of International Child Abduction 1980

Jurisdiction:

England and Wales

Children

Updated: 28 April 2022; Ref: scu.81972

In Re L (A Minor) (Police Investigation: Privilege): HL 22 Mar 1996

A report obtained for Children Act proceedings has no privilege against use in evidence. Such proceedings are in the nature of inquisitorial proceedings. Litigation privilege was not applicable in care proceedings and a report prepared may be given to the police. Litigation privilege is essentially a creature of adversarial proceedings and thus cannot exist in the context of non-adversarial proceedings. (Lord Mustill and Lord Nicholls of Birkenhead dissenting).

Judges:

Lord Jauncey of Tullichettle, Lord Lloyd of Berwick, Lord Steyn

Citations:

Times 22-Mar-1996, Gazette 24-Apr-1996, [1997] 1 AC 16

Statutes:

Children Act 1989 Part IV

Jurisdiction:

England and Wales

Citing:

Appeal from – In Re L (Minors)(Police Investigation) (Privilege) CA 25-Apr-1995
A report voluntarily given to a court hearing care proceedings, may be released to the police. . .

Cited by:

Cited – Three Rivers District Council and others v The Governor and Co of the Bank of England (No 5) CA 3-Apr-2003
Documents had been prepared by the respondent to support a request for legal advice in anticipation of the Bingham enquiry into the collapse of BCCI.
Held: Legal advice privilege attached to the communications between a client and the . .
Cited – United States of America v Philip Morris Inc and others QBD 10-Dec-2003
Witness orders were sought in respect of professionals resident in England to support litigation in the US. They objected on the ground that the terms of the order sought suggested improper behaviour, and that an order would anticipate breach of . .
Cited – United States of America v Philip Morris Inc and Others and British American Tobacco (Investments) Ltd CA 23-Mar-2004
The defendants appealed orders requiring them to produce evidence for use in the courts in the US.
Held: It was the pleasure and duty of British courts to respond positively to a letter of request. Public interest required that a court should . .
Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Cited – Re D (a child) CA 14-Jun-2011
In the course of care proceedings, the mother had revised her version of events, and then explained why. The father sought disclosure of the attendance notes of her solicitor, saying that she had waived any privilege in the advice given. She now . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Children

Updated: 28 April 2022; Ref: scu.81984

In Re M (A Minor) (Secure Accommodation Order): CA 15 Nov 1994

On making a secure accommodation order, the welfare of the child is a relevant but not the paramount consideration. The Court referred to the responsibility of reaching ‘so serious and Draconian a decision as the restriction upon the liberty of the child’.

Citations:

Times 15-Nov-1994, [1995] 1 FLR 418

Statutes:

Children Act 1989 25

Jurisdiction:

England and Wales

Cited by:

Cited – In re K (A Child) FD 16-May-2011
The court was asked whether K, a 13-year-old girl, should attend the hearing of an application by her local authority to keep her in secure accommodation for three months. She wanted to be at the hearing, but the local authority opposed her . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 28 April 2022; Ref: scu.82022

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 prospect of success.

Judges:

Ward LJ

Citations:

Times 21-Apr-1995, [1995] 2 FLR 86

Statutes:

Children Act 1989 34

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 . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 28 April 2022; Ref: scu.82030

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 to avoid a finding that he or she has been acquiescent in the abduction. ‘The phrase ‘subsequently acquiesced in the removal or retention’ has been elaborated in England by case law. The governing authorities are In re A. (Minors) (Abduction: Custody Rights) [1992] Fam. 106, In re A. Z. (A Minor) (Abduction: Acquiescence) [1993] 1 F.L.R. 682 and In re S. (Minors) (Abduction: Acquiescence) [1994] 1 F.L.R. 819. Their general effect, to summarise it shortly, is as follows. In order to establish acquiescence by the aggrieved parent, the abducting parent must be able to point to some conduct on the part of the aggrieved parent which is inconsistent with the summary return of the child to the place of habitual residence. ‘Summary return’ means in that context an immediate or peremptory return, as distinct from an eventual return following the more detailed investigation and deliberation involved in a settlement of the children’s future achieved through a full court hearing on the merits or through negotiation. Such conduct may be active, taking the form of some step by the aggrieved parent which is demonstrably inconsistent with insistence on his or her part upon a summary return; or it may be inactive, in the sense that time is allowed by the aggrieved parent to pass by without any words or actions on his or her part referable to insistence upon summary return. Where the conduct relied on is active, little if any weight is accorded to the subjective motives or reasons of the party so acting. Where the relevant conduct is inactive, some limited enquiry into the state of mind of the aggrieved parent and the subjective reasons for inaction may be appropriate.’ The father had acted entirely properly within the tenets of his faith in not taking Convention proceedings until authorised by his Beth Din, but: ‘. . . That is beside the point, however, when it comes to a consideration of the objective inferences to be drawn from the fact that he took active steps towards a settlement or adjudication of the matrimonial differences through the medium of the Beth Din, and persisted in those steps for many months, without making any overt statement that he was insisting upon the summary (as opposed to the eventual) return of the children.’

Judges:

Stuart-Smith, Waite and Otton L.JJ

Citations:

Gazette 25-Sep-1996, Times 14-Aug-1996

Statutes:

Hague Convention on the Civil Aspects of International Child Abduction 1980 813

Jurisdiction:

England and Wales

Citing:

Cited – Re A (Minors) (Abduction: Custody Rights) No 2 CA 29-Jul-1992
The mother had wrongfully removed the children from Australia to this country. The father wrote to the mother saying that ‘I think you know that what you have done is illegal, but I’m not going to fight it’ and generally giving the impression that . .
Cited – In re A Z (A Minor) (Abduction: Acquiescence) 1993
. .
Cited – In re S (Minors) (Abduction: Acquiescence) 1994
For the purposes of Article 13 of the Convention, the question whether the wronged parent has ‘acquiesced’ in the removal or retention of the child depends upon his actual state of mind of the parent: ‘the court is primarily concerned, not with the . .

Cited by:

Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 28 April 2022; Ref: scu.81104

In Re D and K (Minors)(Care Plan: Twin Track Planning): FD 29 Jul 1999

Where a local authority preparing a care plan for a child subject of court applications was aware that an alternative disposal would be considered by the court such as adoption, then it should prepare a twin track plan rather than await a decision and then unnecessarily prolong the proceedings. Children in such situations faced complex problems not helped by uncertainty.

Citations:

Times 29-Jul-1999

Jurisdiction:

England and Wales

Children

Updated: 28 April 2022; Ref: scu.81838

In Re C (Minors) (Abduction: Habitual Residence): CA 23 Feb 1999

Where children had clearly been unlawfully removed to live in this country, the distress necessarily occasioned by another move against the mother’s wishes was unlikely to prevent an order for their return to the country from which they had been removed, in the absence of clear evidence of a grave risk of harm.

Citations:

Gazette 10-Mar-1999, Times 23-Feb-1999, Gazette 23-Feb-1999

Statutes:

Child Abduction and Custody Act 1985

Jurisdiction:

England and Wales

Children

Updated: 28 April 2022; Ref: scu.81793

In Re B (A Minor)(Child Abduction: Consent): CA 9 May 1994

A six year old boy, had lived in Western Australia all his life. Shortly prior to his removal from Australia, the mother had left Australia to live in Wales. The maternal grandmother asked the father for permission to take the child to Wales to visit the mother. The father said he would not allow the child to leave Australia for longer than 6 months, and he insisted that legal arrangements be put in place for the child’s return. Accordingly, the father, maternal grandmother and the mother entered into ‘minutes of consent order’ whereby the parents would have joint guardianship, the father sole custody, and the grandmother would return the child to Western Australia by a particular date. However, the minutes of consent were not able to be registered and were therefore not legally enforceable in Western Australia. The father was persuaded by the mother’s assurances, and the grandmother’s provision of a bond, that they were sincere in their undertaking to return the child to Australia. The mother later admitted in evidence that she signed the agreement without any intention of cooperating with its terms. The trial judge found that the consent was obtained by deceit. The mother appealed.
Held: A consent to a child’s removal from a country which had been obtained by deceit was not to be relied upon readily. An order for the return of a child to its home country could be made without a formal order having been made in that country. A claim of duress failed.
Waite LJ said: ‘The central issue.
Her counsel, Mr Munby, has not sought to suggest that the mother’s conduct, or that of the maternal grandmother, can be defended on any equitable or moral ground. The judge’s finding that: ‘the mother, assisted by her own mother, cruelly deceived the father; and she now seeks to profit by her deceit’, is not challenged. The crucial issues are:
. (2) does the fact that the father’s consent to that removal was obtained by deception require him to be treated as though he had never consented at all, so as to render the removal a breach of his ‘rights of custody’?
. . Mr Munby contends that the father’s consent to F’s removal on 25 August 1993 was a genuine consent, however fraudulently obtained by the mother and maternal grandmother. The deceit may be reprehensible, but the fact that consent can (sic) given makes it impossible to say that the removal was wrongful in the sense of involving a breach of the father’s rights of custody. Mr Holman submits that the judge was right to hold that a consent obtained by deceit is no consent . .
. . As for the issue of consent, the question whether a purported consent to the child’s removal obtained from the aggrieved parent was or was not a valid consent is similarly to be determined according to the circumstances of each case. The only starting-point that can be stated with reasonable certainty is that the courts of the requested State are unlikely to regard as valid a consent that has been obtained through a calculated and deliberate fraud on the part of the absconding parent. That applies in my judgment whatever the purpose for which the consent is relied on — whether it be to nullify what would otherwise be considered a wrongful breach of rights of custody for the purposes of Art 3, or as a consent of the kind that is expressly referred to in Art. 13(a).’
Here again, the judge in my view reached a conclusion that is unassailable. The father’s consent to F’s removal last August was indeed obtained through a cruel deceit. It was cruel, moreover, not only to the father but to the child. F is only 6, but he is old enough to understand the assurance given to him when he left Australia that he would be returned after an interval to the only country he had ever known and the only parent who had given him continuous and consistent care; and vulnerable enough to suffer if that expectation is destroyed. The judge was right to hold that a consent so obtained was no true consent at all.’

Judges:

Waite LJ

Citations:

Gazette 15-Jun-1994, Times 12-May-1994, Ind Summary 09-May-1994, [1994] 2 FLR 294

Statutes:

Child Abduction and Custody Act 1985

Jurisdiction:

England and Wales

Cited by:

Cited – X v Latvia ECHR 26-Nov-2013
ECHR Grand Chamber – Article 8-1
Respect for family life
Failure to conduct detailed examination of all relevant points when deciding whether to return a child pursuant to Hague Convention: violation . .
Cited – VK and AK v CC CANI 19-Feb-2014
The child had been removed to NI by his mother. She had left him as a baby with her parents in Latvia, and they had cared for him under an informal arrangement for several years. M had taken the boy from the street in Latvia. The grandparents sought . .
Cited – In re K (A Child) SC 15-Mar-2014
Rights of Custody under Convention
The Court was asked as to what were ‘rights of custody’ within the Convention. M had at first left her child with the maternal grandmother in an informal but long term arrangement in Latvia when M moved to Northern Ireland. Later M removed the child . .
Cited – KK (A Child), Re Judicial Review FDNI 10-Jun-2013
Maternal Grandparents sought a declartion requiring the return to Latvia of their grandson, who had been brought forcibly to NI by his mother, he having lived with them in Latvia for several years. . .
Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 28 April 2022; Ref: scu.81714

In Re B (A Minor: Contact Order): FD 8 Apr 1994

In a disputed contact case, the parties had agreed that their should be monitored interim access, and this was supported by the Court Welfare Officer. The magistrates declined to make an order fearing that this would delay the final order.
Held: The Justices had been wrong to refuse to make the order. Delay would principally affect issues as to the upbringing of the child. It was difficult to see how a monitored programme of contact could be detrimental to a child. There was no conflict with the need to make speedy decisions to protect a child, and the order would undoubtedly be better for the child before the hearing. The result of the magistrates’ refusal to make an order was that the child had lost four months of possible contact with his father.

Judges:

Ewbank J

Citations:

Times 08-Apr-1994

Statutes:

Children Act 1989 1(2)

Jurisdiction:

England and Wales

Children

Updated: 28 April 2022; Ref: scu.81719

Camden London Borough Council v R (A Minor) (Blood Transfusion); in Re R (A Minor)(Blood Transfusion): FD 8 Jun 1993

Child A’s doctors considered that she would need treatment over the following two years and that this could involve the need for blood transfusions at any time. The parents were Jehovah’s Witnesses and refused consent.
Held: The order allowing a transfusion to be given was made. The child’s need for blood was so overwhelming that, in her best interests, her parent’s beliefs had to be overridden. An authority should obtain a specific issue order with regard to the use of blood products on a child.
Booth J discussed the issue of how such applications should be handled procedurally: ‘I am in complete agreement with the essential premise of the conclusions reached by Johnson J. Such issues are of the utmost gravity and are of particular anxiety since the decision of the court may run counter to the most profound and sincerely held beliefs of the parents. For these reasons the most strenuous efforts should always be made to achieve an inter partes hearing. Such issues should also be determined, wherever possible, by a High Court judge and this is of particular importance in those exceptional circumstances where an application must be made ex parte so that the parents cannot be heard. But in my judgment these prerequisites can be as well met by an application for a specific issue order under s 8 as by an application for the exercise of the court’s inherent jurisdiction. A section 8 application can, and in circumstances such as these undoubtedly should, be made to the High Court. When leave to make it is sought by a local authority, or other appropriate body or person, the district judge, as in this case, can give all necessary directions for a speedy hearing. It will then be heard by a High Court judge. Although there is yet no reported decision as to whether or not a specific issue order can be made ex parte, I should be very surprised if the words of the statute had to be interpreted so narrowly as to deny the court power to give such relief where it was otherwise justified and the circumstances compelled an ex parte hearing. But if such an issue were to come before a judge of the Family Division who was constrained to find the court’s jurisdiction to be so limited, the power to invoke the exercise of the inherent jurisdiction of the court would be immediately available and appropriate.
In the present case I am in no doubt that the application is well-founded under section 8 of the Act. The result which the local authority wishes to achieve, namely, the court’s authorisation for the use of blood products, can clearly be achieved by the means of such an order. There is no need for the court otherwise to intervene to safeguard the little girl, so that I am satisfied that it is unnecessary and inappropriate for the court to exercise its inherent jurisdiction.’

Judges:

Booth J

Citations:

Times 08-Jun-1993, Independent 09-Jun-1993, [1993] 2 FLR 757

Statutes:

Children Act 1989 8

Jurisdiction:

England and Wales

Citing:

Cited – Re O (A minor) (Medical Treatment) FD 12-Apr-1993
The local authority applied for a care order in relation to the child, on the ground that there was an urgent and continuing need for medical treatment which included blood transfusions. The court considered the legal effect of a parent’s belief (as . .

Cited by:

Cited – In Re T (A Minor) (Wardship: Medical Treatment) CA 24-Oct-1996
A baby boy who was 18 months old, suffered from a life-threatening liver defect. His parents were health-care professionals experienced in the care of sick children. The unanimous medical view was that as soon as donor liver became available the . .
Cited – LA v SB and Others CA 12-Jul-2010
The local authority had applied for a care order under the court’s inherent wardship jurisdiction in connection with a family where three children suffered a potentially life threatening disease, Rasmussens’s encephalitis. The parents were said to . .
Lists of cited by and citing cases may be incomplete.

Children, Health

Updated: 28 April 2022; Ref: scu.78854

Re AB (Child Abuse: Expert Witnesses): FD 1995

Citations:

[1995] 1 FLR 181

Jurisdiction:

England and Wales

Cited by:

Disapproved – In Re A (A Minor) (Disclosure of Medical Records to GMC) FD 21-Aug-1998
Applications by the General Medical Council for court records in order to pursue professional misconduct proceeding, should follow new routine of having two court hearings, ex parte appointment and on notice rather than previous three stages system. . .
Cited – Re X (Non-Accidental Injury: Expert Evidence) FD 11-Apr-2001
A child had been injured, and the local authority sought a care order. An expert witness for the parents had argued that the child may have suffered a condition of Temporary Brittle Bone Disease (TBBD).
Held: Though the parents had been . .
Lists of cited by and citing cases may be incomplete.

Children, Evidence

Updated: 27 April 2022; Ref: scu.180857

In re Y and K (Minors) (Split hearing: Evidence): CA 7 Apr 2003

In a ‘split trial’ procedure under the Act, it was wrong to bring in rules from criminal procedures. A witness who was competent was also compellable. Dicta in In re B were made without reference to section 98.

Judges:

Hale, Thorpe LJJ

Citations:

Times 18-Apr-2003

Statutes:

Children Act 1989 31 98

Jurisdiction:

England and Wales

Citing:

Dicta corrected – In re B CA 2002
. .
Lists of cited by and citing cases may be incomplete.

Children, Evidence

Updated: 27 April 2022; Ref: scu.180858

In re P (a Child) (Parental dispute: Judicial determination): CA 7 Oct 2002

The parents had disputed which school the child should attend. They applied to the court, and the court said that the mother should decide.
Held: The parties having asked the question, they were entitled to receive an answer. The judge’s answer was unprincipled. The court should try to direct the parties so as to avoid discord where possible, but the court should still give its own view, never departing from the need to put the child’s welfare first. In this case, the mother’s appeal succeeded.

Judges:

Thorpe LJ, Bodey J

Citations:

Times 05-Nov-2002

Jurisdiction:

England and Wales

Children

Updated: 27 April 2022; Ref: scu.177852

Re R (A Minor) (Expert’s Evidence): FD 1991

The court gave guidance on the principles to be followed by experts providing evidence in children cases.

Citations:

[1991] 1 FLR 291

Jurisdiction:

England and Wales

Cited by:

Cited – Re X (Non-Accidental Injury: Expert Evidence) FD 11-Apr-2001
A child had been injured, and the local authority sought a care order. An expert witness for the parents had argued that the child may have suffered a condition of Temporary Brittle Bone Disease (TBBD).
Held: Though the parents had been . .
Cited – A and D v B and E FD 13-Jun-2003
In two separate actions, fathers with parental responsibility sought orders requiring the mothers of their children to ensure they received the MMR vaccine. Each mother objected, having suspicions as to the safety of the treatment. Specific issue . .
Lists of cited by and citing cases may be incomplete.

Children, Evidence

Updated: 27 April 2022; Ref: scu.180856

RVH v TF (Non Hague Convention: Refusal of Summary Return): FD 14 Jun 2018

Application made by the applicant father seeking the summary return to Ivory Coast of the parties’ 2 children, C a girl now 3 years old and D, a boy now 21 months old. The application is made pursuant to the Inherent Jurisdiction following the mother’s removal of the children from Ivory Coast on 27 March 2018. The mother opposes the application.

Judges:

Darren Howe QC

Citations:

[2018] EWHC 1680 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Children

Updated: 26 April 2022; Ref: scu.621050

BA and Another v JA and Others (Female Genital Mutilation Protection Orders and Immigration Appeals): FD 3 Jul 2018

Appeal from refusal of asylum claims – Nigerian family – parents’ fear of FGM for their daughters.
Held: Refused.

Judges:

Holman J

Citations:

[2018] EWHC 1754 (Fam), [2018] 4 WLR 105, [2018] WLR(D) 426

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Immigration, Children

Updated: 26 April 2022; Ref: scu.621054