Category: Children

D (A Child) (International Recognition): CA 27 Jan 2016

M and F disputed the return of their child D to Romania. F had obtained there an order for custody, and now appealed from refusal of the court here to recognise that order and enforce it. The judge had found that the proceedings in Romania had failed to allow adequate service of proceedings and opportunity to be involved both to M and D.
Held: The appeal failed.
The question of whether and how the child’s voice was to be heard in the proceedings was a separate question from the weight to be given to his wishes and feelings: ‘ . . the rule of law in England and Wales includes the right of the child to participate in the process that is about him or her. That is the fundamental principle that is reflected in our legislation, our rules and practice directions and jurisprudence. At its most basic level it involves asking at an early stage in family proceedings whether and how that child is going to be given the opportunity to be heard. The qualification in section 1(3)(a) [of the Children Act 1989] like that in article 12(1) [of the United Nations Convention on the Rights of the Child 1989] relates to the weight to be put upon a child’s wishes and feelings, not their participation.’

Moore-Bick VP CA, Ryder, Briggs LJJ
[2016] EWCA Civ 12, [2016] WLR 2469, [2016] WLR(D) 44, [2016] 2 FLR 347, [2016] 3 All ER 770, [2016] 1 WLR 2469, [2016] Fam Law 311
Bailii, WLRD
England and Wales
Citing:
Appeal from – MD v AA and Another FD 31-Jul-2014
M appealed against English orders recognising and registering a decision of the Bucharest Court of Appeal ordered that the custody of D who had lived with his mother in England since the age of eight weeks, should be transferred to his father in . .

Cited by:
Appeal from – In re D (A Child) SC 22-Jun-2016
F had obtained an order in Romania for the custody of D. F obtained orders initially for the registration and enforcement of that order, but the High Court reversed that saying that neither the child nor his mother had been given adeuate opportunity . .

Lists of cited by and citing cases may be incomplete.

Children

Updated: 09 January 2022; Ref: scu.559352

R, Regina (on the Application of) v Durham Constabulary and Another: HL 17 Mar 2005

The appellant, a boy aged 15, had been warned as to admitted indecent assaults on girls. He complained that it had not been explained to him that the result would be that his name would be placed on the sex offenders register. The Chief Constable appealed a decision that this was an interference in his human rights.
Held: The procedure did not depend upon any consent of R and neither the warning of R nor the decision to warn him involved the determination of a criminal charge against him. Had they done so, as the appellants acknowledged, there would have been no valid waiver by him of his fair trial right. But as it was, his fair trial rights were not engaged. (Lord Steyn and Baroness Hale dissenting) Baroness Hale: ‘constructive diversion policies and practices are thoroughly consistent with the fundamental principles of all these international instruments. However, diversion is not to be bought at the cost of basic fairness to the child. The child is a human being, not a mere object of social control . . Children will not be brought up to obey the law and respect the rights of others if they perceive that the system is treating them arbitrarily or unfairly. The fundamental issue in this appeal is whether it is fair to subject a child to a formal diversion process with mandatory legal consequences without first obtaining his informed consent. ‘

Bingham, Steyn, Rodger, Hale, Brown LL
Times 18-Mar-2005, [2005] UKHL 21, [2005] 1 WLR 1184, [2005] 2 All ER 369, [2005] All ER (D) 278, [2006] Crim LR 87
Bailii, House of Lords
Crime and Disorder Act 1998 65 66
England and Wales
Citing:
Cited – X v United Kingdom ECHR 1972
The defendant had been convicted of knowingly living on the earnings of prostitution contrary to section 30(1) of the Sexual Offences Act 1956.
Held: The Commission rejected as manifestly ill-founded the applicant’s challenge to this provision . .
Cited – Fayed v United Kingdom ECHR 6-Oct-1994
The Secretary of State had appointed inspectors to investigate and report on a company takeover. In their report, which was published, the inspectors made findings which were critical of and damaging to the applicants, who relied on the civil limb . .
Cited – Thompson v Commissioner of Police of Metropolis; Hsu v Same CA 20-Feb-1997
CS Damages of 200,000 pounds by way of exemplary damages had been awarded against the police for unlawful arrest and assault.
Held: The court gave a guideline maximum pounds 50,000 award against police for . .
Cited – Attorney-General’s Reference (No 2 of 2001) HL 11-Dec-2003
The house was asked whether it might be correct to stay criminal proceedings as an abuse where for delay. The defendants were prisoners in a prison riot in 1998. The case only came on for trial in 2001, when they submitted that the delay was an . .
Cited – Ibbotson v United Kingdom ECHR 1998
While the applicant was serving a sentence for possession of obscene material, the 1997 Act came into force, requiring him to register with the police. It was argued that the passing of the Act and its impact on the offender involved a ‘penalty’ . .
Cited – S v Miller SCS 2001
After an assault S, aged 15, was detained, arrested and charged with assaulting L. The procurator fiscal decided not to prosecute, and the matter was reported to the police and to the reporter and on to a children’s hearing to consider if measures . .
Cited – Porter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
Cited – Porter v United Kingdom ECHR 2003
A large surcharge imposed on the applicant was compensatory, not punitive. The criminal limb of article 6 was not engaged. . .
Cited – Raimondo v Italy ECHR 22-Feb-1994
The applicant was arrested and placed under house arrest on charges relating to his association with the Mafia. As an interim measure some of his property was seized. The proceedings ended in his acquittal. He claimed that the seizure of his . .
Cited – S, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .
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 . .
Cited – Regina v Field (Brian John); Regina v Young (Alfred) CACD 12-Dec-2002
Each applicant having been convicted of indecent assaults involving children, now appealed an order banning them from working with children.
Held: The orders were not penalties within article 7. The order was available in the absence of a . .
Cited – Regina (M) v Inner London Crown Court Admn 10-Feb-2003
The applicant’s daughter had been convicted of a petty assault, and she had herself been made subject of a twelve month parenting order. She appealed.
Held: Parenting orders are proper within a democratic society, and do not infringe a . .
Cited – Adolf v Austria ECHR 26-Mar-1982
An elderly lady complained that the applicant had assaulted her. The police investigated and reported back to the prosecutor who referred the matter to the Innsbruck District Court. The court registered the case as a ‘punishable act’ under section . .

Cited by:
Cited – Wyman, Regina (on the Application of) v The Chief Constable of Hampshire Constaulary Admn 24-Jul-2006
The claimant challenged a formal caution administered against him for an alleged sexual assault. He denied that he had made any clear admission of the offence.
Held: The requirement under the procedure was for a clear admission of guilt, but . .
Cited – Jones v Whalley HL 26-Jul-2006
The appellant had assaulted the respondent. He had accepted a caution for the offence, but the claimant had then pursued a private prosecution. He now appealed refusal of a stay, saying it was an abuse of process.
Held: The defendant’s appeal . .
Cited – Stratton, Regina (on The Application of) v Thames Valley Police Admn 7-Jun-2013
The claimant requested the court to set aside a caution accepted by her, when she said that she had not understood the serious consequences and had not admitted the offence.
Held: It was for each Chief Constable to draft his own policy, but . .
Cited – Gallagher for Judicial Review (NI) SC 30-Jan-2019
Each appellant complained of the disclosure by the respondent of very old and minor offences to potential employers, destroying prospects of finding work. Two statutory schemes were challenged, raising two separate questions, namely whether any . .

Lists of cited by and citing cases may be incomplete.

Children, Police, Human Rights

Updated: 09 January 2022; Ref: scu.223641

University Hospitals of North Midlands NHS Trust v AS and Others (Serious Medical Treatment): FD 27 Oct 2021

i. What treatment is in AS’s best interests (and specifically as to whether the Trust’s proposed care plan (with ceilings of treatment) is in her best interests?
ii. Whether a reporting restrictions order in the terms sought by the applicant should be granted, to prevent the identification of her treating clinicians?

The Honourable Mr Justice Hayden,
Vice President of the Court of Protection
[2021] EWHC 2927 (Fam)
Bailii
England and Wales

Children, Health, Media

Updated: 09 January 2022; Ref: scu.669918

MM, Regina (on The Application of) v London Borough of Hounslow: Admn 18 Dec 2015

In this claim for judicial review, it is alleged that Hounslow failed to produce a lawful assessment of MM’s needs, and to the extent that Hounslow’s assessment lawfully identified MM’s needs and those of his mother as his carer, it is said that Hounslow failed to make adequate provision for how those needs were to be met.

Sir Brian Keith
[2015] EWHC 3731 (Admin)
Bailii
England and Wales

Children, Local Government

Updated: 08 January 2022; Ref: scu.557375

Re KP (A Child) (Abduction: Rights of Custody): CA 1 May 2014

F applied for an order for the return to Malta of the couple’s daughter. M appealed saying that the judge had erred when meeting the daughter having gone beyond the permitted limits. The daughter had objected to being returned, but the judge had decided that she was ambivalent about the return.
Held:

Moore-Bick, Black, McFarlane LJJ
[2014] EWCA Civ 554, [2014] Fam Law 945, [2014] 2 FCR 545, [2014] 1 WLR 4326, [2014] WLR(D) 181, [2014] 2 FLR 660
Bailii, WLRD
Child Abduction and Custody Act 1985
England and Wales

Children

Updated: 07 January 2022; Ref: scu.525115

Regina v Central Criminal Court Ex Parte Simpkins; Regina v Same Ex Parte Plummer: Admn 16 Oct 1998

The test of whether an order should be made lifting the restriction on the naming of youths in criminal proceedings is whether there are good reasons for naming them. There is no requirement for ‘rare and exceptional’ qualification. Here no direct harm would be caused.

Times 26-Oct-1998
Children and Young Persons Act 1933 39 44
England and Wales

Media, Criminal Practice, Children

Updated: 07 January 2022; Ref: scu.139091

In re J (A Child): SC 25 Nov 2015

The court considered for the first time the scope of the jurisdiction conferred by article 11 of the 1996 Convention ‘in all cases of urgency’ upon the Contracting State where a child is present but not habitually resident. F had obtained an order under the inherent jurisdiction of the court for the return of J to Morocco.
Held: The appeal succeeded, and the court set aside the decision of the Court of Appeal to dismiss F’s application. ‘measures of protection’ in Article 3 goes far wider than the public law measures of child care and protection to which an English lawyer might otherwise think that they referred (although those are also included). The exclusions from the Convention in article 4 include ‘(a) the establishment or contesting of a parent-child relationship; (b) decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption; (c) the names and forenames of the child;’. The focus of the Convention is on the care and upbringing of the child (or the protection of his property).
Lady Hale said: ‘While I would not, therefore, go so far as to say that such a case is invariably one of ‘urgency’, I find it difficult to envisage a case in which the court should not consider it to be so, and then go on to consider whether it is appropriate to exercise the article 11 jurisdiction. It would obviously not be appropriate where the home country was already seized of the case and in a position to make effective orders to protect the child. However, as Lord Wilson pointed out in the course of argument, the courts of the country where the child is are often better placed to make orders about the child’s return. Those courts can take steps to locate the child, as proved necessary in this case, and are likely to be better placed to discover the child’s current circumstances. Those courts can exert their coercive powers directly upon the parent who is here and indeed if necessary upon the child. The machinery of going back to the home country to get orders and then enforcing them in the presence country may be cumbersome and slow. Getting information from the home country may also be difficult. The child’s interests may indeed be compromised if the country where the child is present is not able to take effective action in support of the child’s return to the country of his or her habitual residence.’

Lady Hale, Deputy President, Lord Wilson, Lord Reed, Lord Hughes, Lord Toulson
[2015] UKSC 70, [2015] 3 WLR 1827, [2016] AC 1291, [2015] WLR(D) 486, UKSC 2015/0176
Bailii, Bailii Summary, WLRD, SC, SC Summary
The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, concluded on 19 October 1996 11, Regulation No 2201/2003 20(1)
England and Wales
Citing:
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 . .
Appeal ffrom – Re J (A Child) (1996 Hague Convention) (Morocco) CA 1-Apr-2015
M appealed against an order for the return of her child to Morocco. Both parents had dual Moroccan and UK citizenship. The child was born in the UK, but later lived with them in Morocco. The parents split, with M awarded custody in Morocco, but . .
Cited – Purrucker v Valles Perez (No 1) ECJ 15-Jul-2010
ECJ (Judgment) Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility – Regulation (EC) No 2201/2003 – . .
Cited – Deticek v Sgueglia ECJ 23-Dec-2009
ECJ (Area Of Freedom, Security and Justice) Judicial cooperation in civil matters Matrimonial matters and matters of parental responsibility Regulation (EC) No 2201/2003 Provisional measures concerning custody . .
Cited – B v B FD 21-May-2014
Mostyn J used the 1996 Convention for just this purpose, when ordering the return of a child to Lithuania pursuant to the 1980 Convention, so as to ensure that there was no grave risk of harm within the meaning of article 13(1)(b) of that . .

Lists of cited by and citing cases may be incomplete.

Children, International, European

Updated: 06 January 2022; Ref: scu.554899

Medway Council v L and Another: FD 10 Nov 2015

Application by Medway Council (the local authority) for a number of orders:
(1) A reporting restrictions order (RRO).
(2) An order preventing the father from disclosing by any means information concerning the recent care proceedings.
(3) An order preventing the father from attending J’s school.

Theis J
[2015] EWHC 3262 (Fam)
Bailii
England and Wales

Children

Updated: 06 January 2022; Ref: scu.554819

Weller and Others v Associated Newspapers Ltd: CA 20 Nov 2015

The three children of a musician complained of the publication of photographs taken of them in a public place in California.

Lord Dyson MR, Tomlinson, Bean LJJ
[2015] EWCA Civ 1176, [2015] WLR(D) 491, [2016] 3 All ER 357, [2016] 1 WLR 1541, [2016] EMLR 7
Bailii, WLRD
England and Wales
Citing:
Cited – Emmens v Pottle CA 1885
A subordinate distributor, here a vendor of newspapers, can plead the common law defence to defamation, of innocent dissemination.
Held: The vendor was prima facie liable, and therefore had to demonstrate the defence to avoid liability. He . .
Cited – Pullman v Hill and Co CA 1891
The plaintiff claimed publication of a defamation when the defendant was said to have dictated it to his typist.
Held: That was sufficient publication. The Court considered what would amount to publication in the law of defamation.
Lord . .
Cited – Byrne v Deane CA 1937
A notice had been displayed on a golf club notice board. The court considered whether this constituted publication for defamation purposes.
Held: Greene LJ said: ‘Now on the substantial question of publication, publication, of course, is a . .
Cited – Lewis v Daily Telegraph Ltd CA 1963
The court considered a request from jurors when assessing damages in a defamation trial for details of the movements in share prices of the plaintiff.
Held: No further evidence could be called. . .
Cited – Lewis v Daily Telegraph Ltd HL 1964
Ascertaining Meaning of Words for Defamation
The Daily Telegraph had published an article headed ‘Inquiry on Firm by City Police’ and the Daily Mail had published an article headed ‘Fraud Squad Probe Firm’. The plaintiffs claimed that those articles carried the meaning that they were guilty of . .
Cited – Lewis v Daily Telegraph Ltd HL 1964
Ascertaining Meaning of Words for Defamation
The Daily Telegraph had published an article headed ‘Inquiry on Firm by City Police’ and the Daily Mail had published an article headed ‘Fraud Squad Probe Firm’. The plaintiffs claimed that those articles carried the meaning that they were guilty of . .
Cited – Reynolds TD v Times Newspapers Ltd; Ruddock and Witherow CA 8-Jul-1998
The claimant, the former Taoiseach of Ireland sought damages after the defendant newspaper published an article falsely accusing him of duplicity. The paper said that his position meant that they should have the defence of quaified privilege . .
Appeal from – Weller and Others v Associated Newspapers Ltd QBD 16-Apr-2014
The defendant had published photographs of the claimant children which had been taken in public in California. Their father was a well known musician. . .
Cited – Hosking and Hosking v Simon Runting and Another 25-Mar-2004
(Court of Appeal of New Zealand) A photographer was commissioned to take photographs of the children of a well known television personality. He took pictures of Mr Hosking’s eighteen month old twins being pushed down a street by their mother. Mr and . .
Cited – Murray v Big Pictures (UK) Ltd; Murray v Express Newspapers CA 7-May-2008
The claimant, a famous writer, complained on behalf of her infant son that he had been photographed in a public street with her, and that the photograph had later been published in a national newspaper. She appealed an order striking out her claim . .
Cited – JR38, Re Application for Judicial Review (Northern Ireland) SC 1-Jul-2015
The appellant was now 18 years old. In July 2010 two newspapers published an image of him. He was at that time barely 14 years old. These photographs had been published by the newspapers at the request of the police. The publication of the . .
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
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.

Information, Media, Children

Updated: 06 January 2022; Ref: scu.554787

Re M (A Child): FD 1 Dec 2021

Appeal following a fact finding hearing as to allegations of rape and domestic abuse in the course of private law proceedings relating to a two year old girl.

The Honourable Mrs Justice Judd DBE
[2021] EWHC 3225 (Fam)
Bailii
England and Wales

Children

Updated: 06 January 2022; Ref: scu.670696

SF v HL: FD 8 Oct 2015

The Court was asked to decide whether it had jurisdiction in relation to R. R is the child of HL (the mother) and SF (the father). The parents are separated. The mother is a South Korean national. When present in the United Kingdom her immigration status is governed by a spousal visa which expires on 1 December 2015. The father is British and resides in England. R holds joint South Korean and British nationality.

MacDonald J
[2015] EWHC 2891 (Fam)
Bailii
England and Wales

Children, Jurisdiction

Updated: 05 January 2022; Ref: scu.553919

Alexander Robertson Esq of Strowan v Margaret Robertson, His Sister: HL 4 Jun 1712

A mother being put in possession of part of her eldest Son’s forfeited estate for aliment to younger children, in a question with the Son after the estate restored, it is found that her intromissions, above the current interest of their portions, went in discharge of former interest due thereon and of current interest, but not in payment of principal, or of interest after the intromissions ceased.
Circumstances inferring this crime: though decree taken in the civil action, recourse might also be had to the penal: the pains of battery not remitted by an act of general indemnity.

[1712] UKHL Robertson – 55, (1712) Robertson 55
Bailii

Scotland, Trusts, Children

Updated: 04 January 2022; Ref: scu.553460

Matouskova: ECJ 6 Oct 2015

Judgment – Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility – Regulation (EC) No 2201/2003 – Article 1(1)(b) – Substantive scope – Inheritance settlement agreement between the surviving spouse and minor children represented by a guardian ad litem – Classification – Requirement for approval of such an agreement by the court – Measure relating to parental responsibility or measure relating to succession

C-404/14, [2015] EUECJ C-404/14
Bailii
European

Children, Family, Wills and Probate

Updated: 04 January 2022; Ref: scu.553099

London Borough of Barnet v X and Another: FC 18 Apr 2006

Barnet County Court – Munby J considered the publication of children proceedings: ‘ In my view the public generally, and not just the professional readers of law reports or similar publications, have a legitimate – indeed a compelling – interest in knowing how the family courts exercise their care jurisdiction. Moreover, if leave is confined in practice to those cases which are, for some reason, thought to be worthy of reporting in a law report, the sample of cases which will ever come to public attention is not merely very small but also very unrepresentative.
My own view, and I make no bones about this, is that, subject of course to appropriate anonymisation, the presumption ought to be that leave should be given to publish any judgment in any care case, irrespective of whether the judgment has any particular interest for law reporters, lawyers or other professionals. It should not be necessary to show that there is some particular reason to justify why leave should be given in the particular case, let alone any need to justify leave on the basis that the judgment deals with some supposedly interesting point of law, practice or principle. For my own part, I should have thought that the proper approach ought to be the other way round. It is not so much for those who seek leave to publish an anonymised judgment to justify their request; surely it is for those who resist such leave to demonstrate some good reason why the judgment should not be published even in a suitably anonymised form.’

Munby J
[2006] 2 FLR 998, [2006] EWCC 1 (Fam)
Bailii
Citing:
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 by:
Cited – H v A (No2) FD 17-Sep-2015
The court had previously published and then withdrawn its judgment after third parties had been able to identify those involved by pulling together media and internet reports with the judgment.
Held: The judgment case should be published in . .

Lists of cited by and citing cases may be incomplete.

Children, Media

Updated: 04 January 2022; Ref: scu.552788

AA v Entry Clearance Officer (Addis Ababa): SC 18 Dec 2013

The appellant child, AA sought entry as the de facto adopted child of his sponsor who had previously been given refugee status. The sponsor had taken parental responsibility of AA under the Islamic Kafala procedure. AA had been admitted under human rights law, but submitted that this was less than should apply under immigration law.
Held: The appeal failed. The Rules did apply to de facto adoptions, but AA’s situation did not meet the criteria: ‘Para 352D does not cover AA’s case, and cannot be rewritten in order to do so. Whether or not Kafala could be treated as a form of ‘adoption’ for other purposes, the definition of ‘adoptive parent’ in Para 6 is more restricted. It extends to ‘de facto adoption’ only within the limitations laid down by Para 309A, which do not cover this case. Although in terms directed to the succeeding provisions, the definition is also incorporated specifically into the general definition of ‘adoptive parent’ and hence into that of ‘parent’ in Para 6.’

Lady Hale, Deputy President, Lord Wilson, Lord Reed, Lord Carnwath, Lord Hughes
[2013] UKSC 81, [2014] INLR 273, [2014] 1 All ER 774, [2013] WLR(D) 499, [2014] 1 WLR 43, [2014] Imm AR 540, [2014] 1 FCR 548, UKSC 2012/0181
Bailii, WLRD, Bailii Summary, SC, SC Summary
Immigration Rules 352D
England and Wales
Citing:
Appeal from – AA (Somalia) v Entry Clearance Officer – Addis Ababa CA 1-May-2012
A child sought entry clearance as a de facto adopted child of his sponsor who had accepted status of refugee.
Held: The changes to the Immigration rules did not extend those rules beyond application to natural and adopted children so far as de . .
Cited – Regina v Immigration Appeal Tribunal Ex parte Tohur Ali CA 18-Dec-1987
The Court considered rule 50 under which ‘parent’ was defined as including – ‘an adoptive parent, where there has been a genuine transfer of parental responsibility on the ground of the original parents’ inability to care for the child . . ‘
Cited – MK (Somalia) and others v Entry Clearance Officer and Another CA 19-Dec-2008
The appellants’ mother had been thrown into a well after resisting attempts to rape her. They had then been cared for by another family member who had, along with her natural children been granted asylum here. They appealed refusal of asylum. They . .
Cited – Mahad (Previously referred to as AM) (Ethiopia) v Entry Clearance Officer SC 16-Dec-2009
The claimants each sought entry to be with members of their family already settled here. The Court was asked whether the new Immigration Rules imposed a requirement which permitted third party support by someone other than the nominated sponsor.
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 . .

Lists of cited by and citing cases may be incomplete.

Immigration, Children

Updated: 04 January 2022; Ref: scu.552328

The Christian Institute, Family Education Trust and similar, Mcintosh and Thomas v The Scottish Minister: SCS 3 Sep 2015

(Second Division, Inner House) The petitioning charities challenged the validity of the 2014 Act saying that it was an unwarranted intrusion on the private lives of families in Scotland.

Lord Carloway, the Lord Chief Justice Clerk
2015 Fam LR 121, [2015] ScotCS CSIH – 64, [2015] CSIH 64, 2015 GWD 29-484, 2016 SC 47, 2015 SLT 633
Bailii
Children and Young People (Scotland) Act 2014
Scotland
Citing:
Appeal from – In The Petition of The Christian Institute and Others for Judicial Review of The Children and Young People (Scotland) Act 2014 SCS 22-Jan-2015
The claimants challenged the 2014 Act saying that in appointing a nominated professional individual for every child, the human rights of the family had been disproportionately interfered with. . .

Cited by:
Appeal from – The Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .

Lists of cited by and citing cases may be incomplete.

Children, Human Rights

Updated: 04 January 2022; Ref: scu.552306

SM (Algeria) v Entry Clearance Officer, UK Visa Section: SC 14 Feb 2018

The Court was asked two questions, first as to its jurisdiction according to the meaning of an ‘EEA Decision’ within the 2006 Regulations, and second as to the position under the Directive of a child who is a third country national but has been placed in the legal guardianship of European Union citizens under the Islamic ‘kefalah’ system in her own country.
Held: The Court had jurisdiction to hear the matter but referred three questions to the European Court of Justice.
S would fall within article 3.2(a) if she does not fall within article 2.2(c). The 2006 Regulations have caused confusion by introducing the word ‘relative’ which nowhere appears in article 3.2(a). ‘Family member’ is a wider term than ‘relative’ as it is well capable of including people who are not related by consanguinity or affinity. All that is required is that the person (i) falls within the broad concept of ‘family member’; (ii) was either a dependant or a member of the household of the Union citizen; and (iii) that dependency or household membership was in the country from which the person has or would come. A child for whom the Union citizen has parental responsibility under the law of the child’s country of origin is clearly capable of being regarded as a family member; S was both a dependant and a member of the household of Mr and Mrs M; and this was in Algeria, the country from which she would be coming to this country.
‘If some member states recognise ‘kefalah’ children as direct descendants but others do not, this clearly places barriers to free movement for those European Union citizens who have such children. It also discriminates against those who, for religious or cultural reasons, are unable to accept the concept of adoption as it is understood in the UK and some other European countries, that is, as the complete transfer of a child from one family and lineage to another. On the other hand, the fact that the term ‘direct descendant’ may have an autonomous meaning does not necessarily entail that it should have a broad meaning.
We therefore cannot consider it acte clair that a child in Susana’s position is not to be regarded as a direct descendant of her guardians for the purpose of article 2.2(c). At the same time, we are concerned that such an interpretation could, in some cases, create opportunities for exploitation, abuse and trafficking in children, which it was the object of the Hague Convention to prevent and deter. We are also concerned that an automatic right of entry for ‘kefalah’ children might lead to some of them being placed in homes which domestically would have been rejected as unsuitable.’

Lady Hale, President, Lord Kerr, Lord Wilson, Lord Reed, Lord Hughes
[2018] UKSC 9, [2018] 1 WLR 1035, [2018] 3 All ER 177, [2018] INLR 368, [2018] WLR(D) 91, UKSC 2015/0243
Bailii, Bailii Summary, WLRD, SC, SC Summary,
Immigration (European Economic Area) Regulations 2006 (SI 2006/1003), Council Directive 2004/38/EC, Adoption and Children Act 2002 83, Adoption with a Foreign Element Regulations 2005
England and Wales
Citing:
At AIT – IM240192005 (Unreported) AIT 12-Feb-2007
Reconsideration of the appeal of the appellant, a citizen of India, against the decision of the respondent on 12 March 2004 refusing her entry clearance to the United Kingdom as an adoptive child.
Held: The case was ordered to be reviewed. . .
Cited – MN (India) v Entry Clearance Officer (New Delhi) v Secretary of State for the Home Department CA 5-Feb-2008
The Court set out four avenues for entry to the UK provided by the Rules in respect of a child adopted or intended to be adopted from abroad. . .
Appal from (CA) – SM (Algeria) v Entry Clearance Officer, UK Visa Section CA 4-Nov-2015
The Entry Clearance Officer appealed from a decision that a child assigned to be under guardianship under the Islamic ‘kefalah’ system in her own country was to be treated on the basis that she did fall within the definition of ‘extended family . .
Cited – Secretary of State for The Home Department v Islam and Another ECJ 5-Sep-2012
ECJ Directive 2004/38/EC – Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States – Article 3(2) – Obligation to facilitate, in accordance with . .
Cited – Sala (EFMS: Right of Appeal : Albania) UTIAC 19-Aug-2016
UTIAC There is no statutory right of appeal against the decision of the Secretary of State not to grant a Residence Card to a person claiming to be an Extended Family Member. Because decisions concerning . .
Cited – Coman and Others v Inspectoratul General Pentru Imigrari and Others ECJ 11-Jan-2018
(Opinion) Reference for a preliminary ruling – Citizenship of the Union – Directive 2004/38/EC – Article 2(2)(a) – Concept of ‘spouse’ – Right of citizens of the Union to move and reside within the territory of the Union – Marriage between persons . .
Cited – Khan v Secretary of State for The Home Department and Another CA 9-Nov-2017
The Secretary of State had refused to grant a residence card to the Pakistani nephew of a German national. The Court was asked whether there is jurisdiction for the First-tier Tribunal to hear an appeal from a refusal by the Secretary of State for . .
ECJ decision awaited – Banger (Unmarried Partner of British National : South Africa) UTIAC 30-Mar-2017
The Upper Tribunal has referred the following questions to the CJEU for a preliminary ruling under Article 267 TFEU:
(1) Do the principles contained in the decision in Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State . .

Lists of cited by and citing cases may be incomplete.

Immigration, European, Children, Adoption

Updated: 04 January 2022; Ref: scu.604792