Child X (Residence and Contact- Rights of Media Attendance) (Rev 2): FD 14 Jul 2009

The father applied to the court to have the media excluded from the hearing into the residence and contact claims relating to his daughter.
Held: It was for the party seeking such an order to justify it. In deciding whether or not to exclude the press in the welfare or privacy interests of a party or third party the Court is to conduct the balancing exercise and process of parallel analysis in Campbell as elaborated in re S. Whilst the principle of open justice is important in civil proceedings concerning children, the need for the protection of children from publicity in the course of proceedings which concern them, was long ago recognised at common law in Scott v Scott, and is provided for in the statutory provisions as to identification.
In this case all the issue related to the child. The sole purpose of the media interest was in the celebrity of the parents. The press should be excluded.

Sir Mark Potter, President
[2009] EWHC 1728 (Fam), Times 27-Jul-2009, [2009] Fam Law 930, [2009] EMLR 26
Bailii
Family Proceedings Rules 1991 (1991 No. 1247) 10.28(4), Administration of Justice Act 1960 12(1), Children Act 1989 97(2), Children and Young Persons Act 1933 39(1), European Convention on Human Rights 8 10
England and Wales
Citing:
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 – Moser v Austria ECHR 2006
The applicant’s son had been taken into care by a public authority. The family complained that the proceedings had been held in secret.
Held: There had been a breach of Article 6, inter alia on the ground that the hearing had not been in . .
Cited – A Local Authority v W L W T and R; In re W (Children) (Identification: Restrictions on Publication) FD 14-Jul-2005
An application was made by a local authority to restrict publication of the name of a defendant in criminal proceedings in order to protect children in their care. The mother was accused of having assaulted the second respondent by knowingly . .
Cited – B v The United Kingdom; P v The United Kingdom ECHR 2001
The provisions of rule 4.16(7) providing for confidentiality in children proceedings were Convention compliant: ‘such proceedings are prime examples of cases where the exclusion of the press and public may be justified in order to protect the . .
Cited – P v BW (Children Cases: Hearings in Public) FD 2003
The applicant sought a joint residence order, and for a declaration that the rules preventing such hearings being in public breached the requirement for a public hearing.
Held: Both FPR 1991 rule 4.16(7) and section 97 are compatible with the . .
Cited – Allan v Clibbery (1) CA 30-Jan-2002
Save in cases involving children and ancillary and other situations requiring it, cases in the family division were not inherently private. The appellant failed to obtain an order that details of an action under the section should not be disclosed . .
Cited – Von Hannover v Germany ECHR 24-Jun-2004
Princess Caroline of Monaco who had, at some time, received considerable attention in the media throughout Europe, complained at the publication of photographs taken of her withour her permission.
Held: There was no doubt that the publication . .
Cited – Regina v Shayler HL 21-Mar-2002
The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the . .
Cited – C v Crown Prosecution Service Admn 8-Feb-2008
The court considered the practice of hearing submissions from the media in relation to reporting restrictions.
Held: Thomas LJ rejected the submission that, in conducting the Re S balancing exercise the Court should have regard to the public . .
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 – 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 – Handyside v The United Kingdom ECHR 7-Dec-1976
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .

Lists of cited by and citing cases may be incomplete.

Children, Media, Human Rights

Updated: 11 November 2021; Ref: scu.349067

Lancashire County Council v R (A Minor) and others: FD 4 Dec 2008

The local authority sought a care order, alleging serious physical abuse of the child. The mother said that any injuries had been inflicted by the father. The father said that the cause was the mother.
Held: The injuries were not likely to have been accidental. The court concluded that the likely perpetrator was the father. The threshold for intervention was crossed, and an interim care order made.

Ryder J
[2008] EWHC 2959 (Fam), [2010] 1 FLR 387, [2009] Fam Law 1131
Bailii
Children act 1989 31
England and Wales
Citing:
Cited – North Yorkshire County Council v SA and others CA 1-Jul-2003
The child was taken to hospital with injuries which the doctors concluded were non-accidental. The identity of the abuser was in doubt.
Held: The court set out to identify the procedures in cases involving suspected non-accidental injuries . .
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 – 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 . .
Cited – ZM v JM; Re M (children) (fact-finding hearing: burden of proof); In re M (a Child) (Non-accidental injury: Burden of proof) CA 19-Nov-2008
When a court considered which of two parents might be responsible for a non-accidental injury to their child, what the court cannot do is decide that one parent is the perpetrator but that the other parent cannot be excluded as the perpetrator. . .
Cited – Oldham Metropolitan Borough Council v GW and others FD 20-Mar-2007
At the outset of this judgment I must emphasise three very important and essential facts that I find and that are now agreed by all involved:
i) K has never been a victim of non accidental injury
ii) The care of K by his parents is and . .
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 – A Local Authority v K, D and L FD 8-Mar-2005
The court gave guidance on the approach to expert evidence in children’s cases. Charles J said ”in determining the facts, a court should have regard to the guidance given in R v Lucas (Ruth) [1981] QB 720 and R v Middleton [2000] TLR 203. As . .
Cited – In re O and N (Minors); In re B (Minors) (Care: Preliminary hearing) HL 3-Apr-2003
The appeals were from conflicting decisions in care applications where one or other or both parents were guilty of lack of care, but there was no evidence to say which was responsible.
Held: The threshold criteria had been met, and the court . .
Cited – In re B (A Child) (Non-accidental Injury) CA 24-Apr-2002
Even where all the experts conclude that non-accidental injury is not the only possible cause of injury to a child, the court may conclude looking at the evidence on the whole that that is the cause. . .
Cited – Re: CB and JB (care proceedings: guidelines) FD 8-Apr-1998
The court gave guidelines for procedures at preliminary hearings in care cases, and as to psychiatric evidence: ‘(iv) Evidence of propensity or psychiatric or psychological assessment of one of the parties is unlikely to be of any assistance in . .
Cited – Regina v Harris, Rockalan, Cherry, Faulder CACD 21-Jul-2005
The court gave guidance in respect of expert evidence given in criminal trials. The court made the following two points with regard to evidence of a subdural hematoma caused non-accidentally. First, a clinically observed coincidence of SDH, retinal . .
Cited – In re LU (A Child); In re LB (A Child) (Serious Injury: Standard of Proof); re U (A Child) (Department for Education and Skills intervening) CA 14-May-2004
In each case, the other parent appealed care orders where she had been found to have injured her children. In each case the sole evidence was the injury to the child’s health and expert medical evidence. The cases were referred following the . .
Cited – Re A and D (Non-Accidental Injury: Subdural Haematomas) FD 5-Dec-2001
Butler Sloss P said: ‘the degree of force required to cause subdural haematomas need not be as great as previously believed. It remains however equally clear that the force used must be out of the normal rough and tumble of family life and must be . .
Cited – Regina v Lucas (Ruth) CACD 1981
People sometimes tell lies for reasons other than a belief that they are necessary to conceal guilt.
Four conditions were identified which must be satisfied before a defendant’s lie could be seen as supporting the prosecution case:-
(1) . .
Cited – Regina v Middleton CACD 12-Apr-2000
Where a defendant was shown to have lied in the course of proceedings it need not always be necessary to give a Lucas direction. In some circumstances the jury could properly be expected not to follow a prohibited line of reasoning without such a . .
Cited – Re A (Non-Accidental Injury: Medical Evidence); Re C-F (a child) (retinal haemorrhages: non-accidental injury) FD 12-Jan-2001
The court recognised the need to reflect current medical knowledge in practice on child abuse cases: ‘the frontiers of medical science are constantly being pushed back and that the state of knowledge is increasing all the time. That is why I find . .

Lists of cited by and citing cases may be incomplete.

Children

Updated: 11 November 2021; Ref: scu.278560

Regina (Williamson and Others) v Secretary of State for Education and Employment: CA 12 Dec 2002

The claimants sought a declaration that the restriction on the infliction of corporal punishment in schools infringed their human right of freedom of religion. The schools concerned were Christian schools who believed that moderate corporal discipline was required in order to give expression to their religious beliefs. The respondent argued that the beliefs asserted, whilst genuine, were not religious beliefs protected under the Convention.
Held: The ban did not infringe their human rights. The beliefs asserted were cogent and sincere as required in Cosans. The fact that certain acts would only constitute an expression of a religious belief if conducted with a certain motivation did not prevent them being such an expression when they occurred. The acts sought to be allowed would therefore be expressions of religious belief for these individuals, and the restriction did demonstrate a failure to respect that belief. However the rules would not prevent the administration of corporal punishment by parents, and the schools could refer a child back to his parents, who would not be restricted. The restriction did not therefore interfere with the rights of the parents to express their religious beliefs.

Buxton, Rix, Arden LJJ
Times 18-Dec-2002, [2003] QB 1300, [2002] EWCA Civ 1926, [2003] ELR 176
Bailii
Education Act 1996 548, European Convention on Human Rights Art 9.2 First Protocol Art 2
England and Wales
Citing:
Cited – Campbell and Cosans v The United Kingdom ECHR 25-Feb-1982
To exclude a child from school for as long as his parents refused to let him be beaten ‘cannot be described as reasonable and in any event falls outside the State’s power of regulation in article 2’. The Convention protects only religions and . .
Appeal from – Regina (Williamson and Others) v Secretary of State for Education and Employment Admn 15-Nov-2001
A genuine religious belief which supported the use of corporal punishment in schools was not itself either a manifestation of religious belief which required protection under the convention, or a religious and philosophical conviction for the . .
Cited – Edgington v Fitzmaurice CA 7-Mar-1885
False Prospectus – Issuers liable in Deceit
The directors of a company issued a prospectus, falsely stating that the proceeds were to be used to complete alterations to the buildings of the company, to purchase horses and vans and to develop the trade of the company. In fact it was to pay off . .

Cited by:
Cited – Regina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
Cited – Khan v Royal Air Force Summary Appeal Court Admn 7-Oct-2004
The defendant claimed that he had gone absent without leave from the RAF as a conscientous objector.
Held: The defendant had not demonstrated by complaint to the RAF that he did object to service in Iraq. In some circumstances where there was . .
Appeal from – Regina v Secretary of State for Education and Employment and others ex parte Williamson and others HL 24-Feb-2005
The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .
Cited – McFarlane v Relate Avon Ltd CA 29-Apr-2010
The employee renewed his application for leave to appeal against refusal of his discrimination claim on the grounds of religious belief. He worked as a relationship sex therapist, and had signed up to the employer’s equal opportunities policy, but . .

Lists of cited by and citing cases may be incomplete.

Education, Children, Human Rights, Ecclesiastical

Leading Case

Updated: 11 November 2021; Ref: scu.178520

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 court had found that M faced significant risk of abuse from F if she returned to Australia.
Held: Her appeal succeeded. The Judge had found that a number of the serious allegations by the morther against the father were true. It was not necessary therefore to assess whether her anxieties were objectively based. The judgment as to the level of risk had been one for the judge at first instance, and should not have been overturned unless, whether by reference to the law or to the evidence, it had not been open to the judge to make it The judge had been entitled to hold that the interim protective measures offered by the father in the event of a return to Australia did not obviate the grave risk to W and it was not open to the Court of Appeal to substitute its contrary view.
Suggestions in the ECHR that an in depth examination was always required in order to satisfy the parties Article 8 rights went too far.

Lord Phillips, President, Lady Hale, Lord Mance, Lord Kerr, Lord Wilson
[2012] UKSC 10, [2012] 2 WLR 721, UKSC 2011/0265, [2012] 2 All ER 603, [2012] 1 FCR 493, [2012] WLR(D) 78, [2012] 2 FLR 442, [2012] Fam Law 639
Bailii, Bailii Summary, SC Summary, SC
Child Abduction and Custody Act 1985, European Convention on Human Rights 8
England and Wales
Citing:
Appeal from – S v C CA 2-Dec-2011
The father appealed against the refusal of an order for the return of a child, the mother having brought her here from Australia against the father’s wishes.
Held: The appeal succeeded. The crucial question as being whether the mother’s . .
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 . .
Doubted – 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 – 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 – X v Latvia ECHR 13-Dec-2011
. .
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 . .

Lists of cited by and citing cases may be incomplete.

Children, Human Rights

Updated: 11 November 2021; Ref: scu.452131

McMichael v United Kingdom: ECHR 2 Mar 1995

In the course of care proceedings, medical and social services’ reports were disclosed to the courts, but not to the parents involved.
Held: The courts’ failure to show reports to the parents in care proceedings was a breach of the Convention. Both the Commission and the Court found a breach of Article 8 because the parents had not been adequately consulted and informed: ‘Nevertheless, notwithstanding the special characteristics of the adjudication to be made, as a matter of general principle the right to a fair – adversarial – trial ‘means the opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party”. The Court repeated its well-established case law that ‘the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life.’
The court noted the special nature of care proceedings, and said: ‘Nevertheless, notwithstanding the special characteristics of the adjudication to be made, as a matter of general principle the right to a fair – adversarial – trial ‘means the opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party’. In the context of the present case, the lack of disclosure of such vital documents as social reports is capable of affecting the ability of participating parents not only to influence the outcome of the children’s hearing in question but also to assess their prospects of making an appeal to the Sheriff Court.’

Times 02-Mar-1995, (1995) 20 EHRR 205, 16424/90, [1995] ECHR 8
Worldlii, Bailii
European Convention on Human Rights
Cited by:
Cited – AHE Leeds Teaching Hospitals NHS Trust v A and Others (By Their Litigation Friend, the Official Solicitor), The Human Fertilisation and Embryology Authority B, B QBD 26-Feb-2003
An IVF treatment centre used sperm from one couple to fertilise eggs from another. This was discovered, and the unwilling donors sought a paternity declaration.
Held: Section 28 did not confer paternity. The mistake vitiated whatever consents . .
Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Cited – PM v The United Kingdom ECHR 19-Jul-2005
A father complained that tax deductions which were granted to married fathers but not to unmarried fathers were discriminatory. He had paid maintenance for his daughter, but was not allowed to set the payments off against his income tax in the way . .
Cited – Secretary of State for the Home Department v MB; Same v AF HL 31-Oct-2007
Non-derogating control orders – HR Compliant
MB and AF challenged non-derogating control orders made under the 2005 Act, saying that they were incompatible with their human rights. AF was subject to a curfew of 14 hours a day, wore an electronic tag at all times, could not leave a nine square . .
Cited – EM (Lebanon) v Secretary of State for the Home Department HL 22-Oct-2008
The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . .
Cited – Rodriguez v Minister of Housing of The Government and Another PC 14-Dec-2009
Gibraltar – The claimant challenged a public housing allocation policy which gave preference to married couples and parents of children, excluding same sex and infertile couples.
Held: The aim of discouraging homosexual relationships is . .
Cited – Durham County Council v Dunn CA 13-Dec-2012
The claimant wished to begin a claim alleging historic sexual abuse while he had been at an institution run by the defendants. The claimant sought pre-trial disclosure of various documents and the court now considered the principle applicable, and . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Children, Scotland

Leading Case

Updated: 11 November 2021; Ref: scu.83574

K v K: FD 29 Jul 2016

Costs of enforcement Order

The parties, mother and father, had divorced in Russia, and an order was made or the residence of their daughter with F, with contact for M. After coming to England, M obtained an order to enforce the first order. The court now considerd liability for costs.

MacDonald J
[2016] EWHC 2002 (Fam), [2016] WLR(D) 474
Bailii, WLRD
England and Wales

Children, International, Costs

Updated: 11 November 2021; Ref: scu.569168

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 restricting further identification. The professionals feared that their readiness to act as experts would be reduced if their identities were made public.
Held: The stays were lifted. The case raised issues as to the extent of information restricted under section 12 of the 1960 Act. Not all information about the child is within the scope of section 12, only information ‘relating to’ the proceedings. Moreover it is equally clear that information does not ‘relate to’ the proceedings merely because it is information communicated to the court or contained in documents put before the court.
However,’the fact that a document is for some other reason already confidential no more brings it within the scope of section 12 merely because it is lodged with the court or annexed to a witness statement or report than would be so with a document lacking the quality of intrinsic confidentiality. What brings a document within the scope of section 12 depends not on whether it is otherwise or already confidential but whether it is ‘information relating to [the] proceedings.’ ‘ and
‘one has to distinguish between, on the one hand, the mere publication of a fact (fact X) and, on the other hand, the publication of fact X in the context of an account of the proceedings, or the publication of the fact (fact Y) that fact X was referred to in the proceedings or in documents filed in the proceedings. The publication of fact X may not be a breach of section 12; the publication of fact Y will be a breach of section 12 even if the publication of fact X alone is not.’
Since no order had been made, decisions about what was in the children’s best interests remained primarily with the parents.
As to the risk to the expert witnesses, Munby J said: ‘neither the risks of targeting, harassment and vilification (which I accept are made out to a certain extent) nor the consequential risks of a flight of experts from child protection work (which again I accept are made out to a certain, though I think more limited, extent) are such as to the demonstrate the ‘pressing need’ which alone could begin to counter-balance what in my judgment are the powerful arguments, the very powerful arguments, founded in the public interest, for denying expert witnesses anonymity.’

Munby J
[2010] EWHC 16 (Fam)
Bailii
Administration of Justice Act 1960 12(1)(a), European Convention on Human Rights 8
England and Wales
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 . .
See also – British Broadcasting Corporation v CAFCASS Legal and others FD 30-Mar-2007
Parents of a child had resisted care proceedings, and now wished the BBC to be able to make a TV programme about their case. They applied to the court for the judgment to be released. Applications were also made to have a police officer’s and . .
Cited – Clayton v Clayton CA 27-Jun-2006
The family had been through protracted family law proceedings and had been subject to orders restricting identification. The father now wanted to discuss his experiences and to campaign. He could not do so without his child being identified.
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 . .
See also – N (A Child), Re; A v G (Family Proceedings: Disclosure) FD 8-Jul-2009
Application in respect of the proposed disclosure to the General Medical Council (GMC) of an expert report produced in the course of and for the purposes of proceedings in relation to a child. . .
Cited – In Re G (A Minor) (Social Worker: Disclosure) CA 14-Nov-1995
A social worker may relate oral admissions made by parents to him to the police without first getting a court’s permission.
Butler-Sloss LJ said: ‘I would on balance and in the absence of argument give the more restrictive interpretation to r . .
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 – 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 . .
Cited – In re S (Minors) (Wardship: Police Investigation); Re S (Minors) (Wardship: Disclosure of Material) FD 1987
Local authority case records and a verbatim extract from the case records which had been exhibited to an affidavit from a social worker had been disclosed.
Held: Booth J asked as to the case records: ‘whether the words in the section . .
Cited – In Re W (Minors) (Social Worker: Disclosure); Re W (Disclosure to Police) CA 26-Mar-1998
A social worker may disclose admissions made during investigation into child abuse, to the police without the court’s permission, where the information had not been incorporated in the welfare report filed at the court. The rule (against disclosure) . .
Cited – Re M (Disclosure: Children and Family Reporter) CA 31-Jul-2002
The question arose as to whether a Cafcass officer acting as a children and family reporter (CFR) in private law proceedings required the permission of the court before referring to the local authority’s social services department for further . .
Cited – Niemietz v Germany ECHR 16-Dec-1992
A lawyer complained that a search of his offices was an interference with his private life.
Held: In construing the term ‘private life’, ‘it would be too restrictive to limit the notion of an ‘inner circle’ in which the individual may live his . .
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 – 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 – Brown v Matthews CA 1990
There is a public interest in encouraging the frank and ready co-operation from people as diverse as doctors, school teachers, neighbours, the child in question, the parents themselves, and other close relations, including other children in the same . .
Cited – Rochdale Metropolitan Borough Council v A 1991
Ten children were taken into care amid allegations of ritual satanic sex abuse.
Held: the allegations were not proved. All but four of the children were returned home. Injunctions were granted to protect the identify of the children and of the . .
Cited – Regina v Felixstowe Justices ex parte Leigh CA 1987
The court considered the importance of the role played by the media in attending and reporting court proceedings. Watkins LJ said: ‘The role of the journalist and his importance for the public interest in the administration of justice has been . .
Cited – Medway Council v G and others FD 18-Jul-2008
The court considered the extent of publicity for a case where the local authority was to be criticised. . .
Cited – Norfolk County Council v Webster and others FD 17-Nov-2006
There had been care proceedings following allegations of physical child abuse. There had been a residential assessment. The professionals accepted the parents’ commitment to their son, but also found that they were unreliable. It was recommended . .
Cited – In re Manda CA 1993
A wardship court can extend its protection beyond the age of majority where a public interest was identified that required it. Whilst those who give evidence in child proceedings can normally assume that their evidence will remain confidential, they . .
Cited – Moser v Austria ECHR 2006
The applicant’s son had been taken into care by a public authority. The family complained that the proceedings had been held in secret.
Held: There had been a breach of Article 6, inter alia on the ground that the hearing had not been in . .
Cited – In re W (Wardship: Discharge: Publicity) CA 1995
Four wards of court aged between nine and 14 had given an interview to a newspaper reporter, who plainly knew that they were wards of court, in circumstances which clearly troubled both the Official Solicitor, their guardian ad litem, who . .
Cited – Re X; Barnet London Borough Council v Y and Z FD 2006
The judge refused to endorse a local authority’s care plan, and invited the local authority to reconsider it. He criticised the local authority for taking an important decision in pending care proceedings without any warning to the guardian and . .
Cited – In Re C (A Minor) (Care Proceedings: Disclosure); Re EC (Disclosure of Material) CA 22-Oct-1996
Guidance was to the courts on disclosure of care proceedings statements etc to police. But for section 12 it would have been contempt of court to have disclosed to the police matters before the children’s court. . .
Cited – British Broadcasting Company v Rochdale Metropolitan Borough Council and X and Y FD 24-Nov-2005
Application was made by the claimant for orders discharging an order made in 1991 to protect the identity of children and social workers embroiled in allegations of satanic sex abuse. The defendant opposed disclosure of the names of two social . .
Cited – Re L (Care: Assessment: Fair Trial) FD 2002
The court emphasised the need, in the interests not merely of the parent but also of the child, of a transparently fair and open procedure at all stages of the care process, including the making of documents openly available to parents.
Munby . .
Cited – Re X (Disclosure of Information) FD 2001
There cannot be an expectation that expert evidence given in a children’s court will always stay confidential. The various aspects of confidentiality will have greater or lesser weight on the facts of each case. Munby J: ‘Wrapped up in this concept . .

Cited by:
See also – Doctor A and Others v Ward and Another FD 9-Feb-2010
. .

Lists of cited by and citing cases may be incomplete.

Media, Children, Human Rights

Updated: 11 November 2021; Ref: scu.396650

Regina (B) v Merton London Borough Council: Admn 14 Jul 2003

The authority had to decide the age of the applicant, an asylum seeker, in order to decide whether a duty was owed to him under the Act. He complained that the procedure adopted was unfair. The 2002 Act did not apply to persons under 18, and he would be entitled to assistance from the respondent. The assessment was made by a social worker through an interpreter over a telephone, but no record was kept.
Held: There was no statutory procedure. Without documentation, no objective procedure existed, and the respondent must rely upon its own assessment. It was difficult but not complex, and should not be made complex. It had to make its own decision, and could not simply adopt the decision of the Home Office. The procedure adopted here risked misunderstanding, and notes would have been relevant and useful. The applicant had not been given opportunity to answer points found against him, and the decision was unfair and must be set aside.
The court set out guidelines for the making of such assessments.

Stanley Burnton J
[2003] EWHC 1689 (Admin), Times 18-Jul-2003, [2003] 4 All ER 280
Bailii
Children Act 1989 17, Nationality, Immigration and Asylum Act 2002 18(1)(a)
England and Wales
Cited by:
Cited – I and Another, Regina (on the Application Of) v Secretary of State for the Home Department Admn 27-May-2005
The applicants had sought asylum. The respondent wished to detain them. They said that they were under the age of 18, which would require them to be released. The respondent obtained expert reports from a senior consultant paediatrician experienced . .
Cited – Regina (A) v Liverpool City Council QBD 26-Jun-2007
The applicant sought judicial review of the authority’s decision that he was over the age of eighteen.
Held: Review was granted. The authority had to have regard to all the relevant information, and could not limit itself to adopting the . .
Cited – Friends of Basildon Golf Course v Basildon District Council and Another Admn 23-Jan-2009
The council owned land on which it ran a golf course. It set out to privatise it and sought interest. An application was made for planning permission. The applicants objected to the planning permission, saying that the Environmental Impact . .
Cited – A, Regina (on the Application of) v London Borough of Croydon SC 26-Nov-2009
The applicants sought asylum, and, saying that they were children under eighteen, sought also the assistance of the local authority. Social workers judged them to be over eighteen and assistance was declined.
Held: The claimants’ appeals . .
Cited – AA, Regina (on The Application of) v Secretary of State for The Home Department SC 10-Jul-2013
The issue on this appeal is the effect of section 55 on the legality of the appellant’s detention under paragraph 16 over a period of 13 days. At the time of the detention the Secretary of State acted in the mistaken but reasonable belief that he . .

Lists of cited by and citing cases may be incomplete.

Children, Local Government, Benefits

Leading Case

Updated: 11 November 2021; Ref: scu.184712

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 attendance on welfare grounds.
Held: The child should be allowed to attend: ‘the evidence suggested that respecting K’s wish to attend court was not likely to lead to harm, and might do some good.’ Things had changed since the case of re W. The court should now consider the following factors: ‘(1) The age and level of understanding of the child. The claims of children of secondary school age will be stronger than those of primary school age, but what matters is whether the child has a sufficient level of understanding of the decision that the court has to make, and the way it will go about making it.
(2) The nature and strength of the child’s wishes. The court will need to consider whether a refusal to allow attendance will create or increase a sense of alienation in the child. A decision made in the child’s presence may be one that he or she will find easier to understand, and where necessary respect and obey.
(3) The child’s emotional and psychological state. If there is clear evidence, probably in the form of expert advice, that attendance is likely to lead to harmful or unpredictable consequences for the child’s emotional condition, the child’s wishes may have to be overruled.
(4) The effect of influence from others. The court will be on its guard against signs of manipulation of the child. Special pressure from any quarter may be magnified by attendance and make it inappropriate.
(5) The matters to be discussed. Rule 12.14 requires the court to have regard to these. In proceedings concerning separation from family or placement in secure accommodation, the matters for discussion are of such high importance to the child that an expectation of involvement may be no more than a natural response.
(6) The evidence to be given. Again, the rule also requires the court to have regard to this. In cases where the evidence is likely to be particularly difficult or distressing, or where it concerns matters that the child should be protected from hearing, attendance can be denied on the basis that it will be harmful. In other cases, the evidence will be no more than a rehearsal of what the child already knows.
(7) The child’s behaviour. In secure accommodation cases, the risk of fight or flight may be so high as to make attendance unwise. On the other hand, the fact that children in secure accommodation will inevitably have to be guarded cannot in itself be a reason for proceeding in their absence. As to the chance of disruption in court, the safety of other court users must be considered. Children who are in secure accommodation often find their way there after violence at home or at school, and in the secure unit itself. The fact that trouble at court cannot be ruled out will be a factor, but may not be a conclusive reason for refusing attendance. Criminal courts routinely accommodate people who pose a risk to the public, and family courts are used to dealing with situations of high emotion.
(8) Practical and logistical considerations. These will particularly come into play in secure accommodation cases. There are secure units throughout the country, and a child may be placed a great distance from the relevant court. The length of the journey, the amount of time the child will be out of placement, and the cost of attendance where supervision is required may also inform the decision. However, the court will be slow to refuse to allow a child to attend for such reasons alone, unless it has exhausted possible alternatives. The availability of a video link in or near the placement should at least be considered, consistent with the Public Law Proceedings Guide to Case Management (paragraph 24) which encourages the court to make full use of technology.
(9) The integrity of the proceedings. The court always retains the power to manage proceedings in a way that achieves overall fairness. Other considerations, such as the interests of other parties, may influence decisions about a child’s attendance.’

Peter Jackson J
[2011] EWHC 1082 (Fam), [2011] 2 FLR 803, [2011] 2 FLR 813
Bailii
Children Act 1989 25 95, Family Procedure Rules 2010 12.14
England and Wales
Citing:
Cited – 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 . .
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 . .
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 – In re W (Children) (Family proceedings: Evidence) (Abuse: Oral Evidence) SC 3-Mar-2010
The court considered the approach to be taken when considering whether to order a child’s attendance at court in care proceedings. It was argued that the starting point of assuming that a child should not attend, failed to respect the human right to . .
Cited – 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 . .
Cited – In Re AS (Secure Accommodation Order: Representation) 1999
Children aged 15 and 12 were present in court when a secure accomodation order was made. . .

Lists of cited by and citing cases may be incomplete.

Children, Litigation Practice, Human Rights

Updated: 11 November 2021; Ref: scu.439739

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 basis of her belief and the fact that, recently, she was baptized in accordance with the teachings and the beliefs of her church.
Held: Though the opportunity to consider the issue properly was limited by its urgency, an order was made to allow a limited transfusion. ‘ in the final analysis, there may be situations, particularly where serious risk to health or life itself is concerned, where the duty of the court, although having regard to the views of a Gillick competent child, is to decline to give effect to them.
The overriding obligation of the court is to act in the best interests of X . . in the final analysis, the court has to take its own decision as to what is in the best interests of a young person and that, in an appropriate case, even if that young person is Gillick competent, it may be appropriate for the court to decide, with regret, but nonetheless firmly, not to give effect to the strongly held views and the strongly held religious beliefs of that young person. That is something the court is very slow to do. It is something the court is very reluctant to do and it will do it only – I put the matter descriptively rather than definitively – where there is clear evidence of a serious risk to health or possible death if the court does not intervene.

Sir James Munby
[2020] EWHC 3003 (Fam)
Bailii
England and Wales
Citing:
No longer reflects the law – 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 . .
No longer reflects the law – 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 . .
Cited – 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 . .
Cited – 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 . .
Cited – 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. . .

Lists of cited by and citing cases may be incomplete.

Children, Health, Human Rights

Updated: 11 November 2021; Ref: scu.656334

In re P (A Child): FD 17 Dec 2013

A local authority applied for a reporting restriction order. The Italian mother when pregnant suffered mental illness. She ceased treatment to protect her unborn child and became psychotic and delusional and was detained in a mental hospital. She had had two previous births by caesarian section, and the doctors view was that a natural birth carried very serious risks and they had obtained an order that the child be born by caesarian. Later the Council had obtained a care order for the child thus born, and then an order freeing her for adoption. The mother continued to fight for the return of her child.
Held: The court noted the extent of incorrect and uninformed comment on the case, but noted also that given the privacy attached to such proceedings under the rules and traditionally, such misinformation was in part at least understood.
Given the extremes faced by the mother she had a right to speak out.
Munby P made again points made in earlier cases: ‘First, that ‘It is not the role of the judge to seek to exercise any kind of editorial control over the manner in which the media reports information which it is entitled to publish’. Second, that ‘Comment and criticism may be ill-informed and based, it may be, on misunderstanding or misrepresentation of the facts [but the] fear of such criticism, however justified that fear may be, and however unjustified the criticism, is . . not of itself a justification for prior restraint by injunction of the kind being sought here, even if the criticism is expressed in vigorous, trenchant or outspoken terms . . or even in language which is crude, insulting and vulga”. Third, that ‘It is no part of the function of the court exercising the jurisdiction I am being asked to apply to prevent the dissemination of material because it is defamatory . . If what is published is defamatory, the remedy is an action for defamation, not an application in the Family Division for an injunction.”

Sir James Munby P
[2013] EWHC 4048 (Fam)
Bailii
England and Wales
Citing:
See Also – Re P FD 13-Dec-2013
A local council applied for a reporting restriction order in the context of a case as to which there had been substantial public discussion and conflict.
Held: As to the child involved: ‘the arguments in favour of the continuing anonymisation . .
Cited – Re B-S (Children) CA 17-Sep-2013
The mother had been refused leave to oppose her child’s adoption. She now appealed.
Held: A court facing such an application faced two questions: Has there been a change in circumstances? If not, that is the end of the matter. If yes, then the . .
Cited – In re P (A Child) Misc 1-Feb-2013
Chelmsford County Court – The court heard an application by the local authority for an order freeing a child for adoption. The mother suffered a continuing mental health condition but that was presently under control.
Held: The threshold . .
Cited – In re AA COP 23-Aug-2012
The patient had been attending a course in the UK for her work. She suffered a further episode of a bipolar condition. Being pregnant she stopped taking her medication. Her mental condition deteriorated, and she was taken into secure psychiatric . .

Lists of cited by and citing cases may be incomplete.

Children, Media

Leading Case

Updated: 11 November 2021; Ref: scu.519043

Sampanis v Greece: ECHR 5 Jun 2008

The Greek authorities failed to enrol in school a group of Greek children of Roma origin who were receiving no formal education for an entire academic year. Over 50 children were subsequently placed in special classes in a school annex which was supposed to prepare the pupils concerned for reintegration into mainstream classes.
Held: The Court noted that the Roma children were not suitably tested either initially, to see if they needed to go into the preparatory classes, or later, to see if they had progressed sufficiently to join the main school. It found a violation of Article 2 of Protocol No. 1 and Article 14, concerning both the enrolment procedure and the placement of the children in special classes, as well as Article 13 (right to an effective remedy).

Nina Vajic P
32526/05
Human Rights
Cited by:
Appeal from – Sampanis and Others v Greece ECHR 8-Aug-2011
Resolution as to execution of judgment . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Children, Discrimination

Leading Case

Updated: 11 November 2021; Ref: scu.511023

In re W (Children) (Family proceedings: Evidence) (Abuse: Oral Evidence): SC 3 Mar 2010

The court considered the approach to be taken when considering whether to order a child’s attendance at court in care proceedings. It was argued that the starting point of assuming that a child should not attend, failed to respect the human right to a fair trial of all concerned.
Held: The existing law erects a presumption against a child giving evidence which requires to be rebutted by anyone seeking to put questions to the child. That cannot be reconciled with the approach of the European Court of Human Rights, which always aims to strike a fair balance between competing Convention rights. Article 6 requires that the proceedings overall be fair and this normally entails an opportunity to challenge the evidence presented by the other side. But even in criminal proceedings account must be taken of the article 8 rights of the perceived victim. ‘Children are harmed if they are taken away from their families for no good reason. Children are harmed if they are left in abusive families. This means that the court must admit all the evidence which bears upon the relevant questions: whether the threshold criteria justifying state intervention have been proved; if they have, what action if any will be in the best interests of the child? The court cannot ignore relevant evidence just because other evidence might have been better. It will have to do the best it can on what it has.’

Lord Walker, Lady Hale, Lord Brown, Lord Mance, Lord Kerr
[2010] UKSC 12, UKSC 2010/0031, [2010] Fam Law 449, [2010] 2 All ER 418, [2010] 1 FLR 1485, [2010] PTSR 775, [2010] 1 FCR 615, [2010] 1 WLR 701
Bailii, SC, SC Summ, Times, Bailii Summary
England and Wales
Citing:
Cited – Regina v B County Council, ex parte P CA 1991
Application was made for judicial review of a decision of the magistrate in proceedings under the Children and Young Persons Act. The issue arose as to whether or not young children should be compelled to give evidence.
Held: The decision of . .
Cited – Re P (Witness Summons) CA 1997
. .
Appeal from – Re W (Children) CA 9-Feb-2010
. .
Cited – In Re K (Infants); Official Solicitor v K HL 2-Jan-1963
The House considered the propriety of a tribunal chairman seeing material not placed before the parties. This was a wardship case.
Held: Where the interests of the parents and the child conflicted, ‘the welfare of the child must dominate’.
Cited – X and Y v The Netherlands ECHR 26-Mar-1985
A parent complained to the police about a sexual assault on his daughter a mentally defective girl of 16. The prosecutor’s office decided not to prosecute provided the accused did not repeat the offence. X appealed against the decision and requested . .
Cited – W (Children), Re; SW and KSW v Portsmouth City Council and ISW, AJW, EDW; Re W (children: concurrent care and criminal proceedings) CA 1-Jul-2009
. .
Cited – H v H (Minor) (Child Abuse: Evidence); Re H (A Minor); Re K (Minors) (Child Abuse: Evidence) CA 1989
An application was made for a wardship after allegations of child abuse.
Held: The test for evidence of child abuse which is appropriate is the ordinary civil standard of balance of probabilities as applied to the facts of each case.
Cited – LM (A Child) v Medway Council and others CA 19-Jan-2007
Smith LJ set out the approach when a court considered asking a child to attend at court to give evidence in family proceedings: ‘The correct starting point . . is that it is undesirable that a child should have to give evidence in care proceedings . .
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 – Bradford City Metropolitan Council v K (Minors) 1990
. .
Cited – SN v Sweden ECHR 2-Jul-2002
A trial involving a child witness was conducted by the video-recording of an interview conducted by a police officer with the child complainant, and an audio-recording of a second interview conducted by the same police officer, putting questions . .
Cited – In Re W (Minors) (Wardship: Evidence) CA 1990
A wardship was applied for after allegations of sexual abuse. Butler-Sloss LJ said ‘It is not necessary to make a finding of sexual abuse against a named person in order for the judge to assess the risks to the child of returned to that environment. . .

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 . .
Cited – London Borough Council v K and Others FD 12-Apr-2010
The parents disputed contact for the children. The children then made allegations of very serious sex abuse against the father. A police investigation resulted in no action, it being said that the children had been coached to make false allegations . .
Cited – In re P and Q (Children: Care Proceedings: Fact Finding) FC 19-Mar-2015
pandQFC201503
The mother and her partner had accused many people of the satanic ritual abuse of her children. The children had since retracted their complaints.
Held: The complaints by the children had been prompted and manufactured by the mother’s partner . .

Lists of cited by and citing cases may be incomplete.

Children, Litigation Practice, Human Rights

Updated: 11 November 2021; Ref: scu.402005

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 must adopt the same ‘parallel analysis’ leading to the same ‘ultimate balancing test’, as described in In re S and W, which is applicable in deciding whether to relax or enhance reporting restrictions. What has to be struck is the proper balance between publicity and privacy, though this is complex. The order made was too wide in its restrictions: ‘Even if all the guardian’s concerns were fully justified, that could not in my judgment justify the prohibition of publishing anything at all about the case.’ In this case the child’s photograph was already in the public domain, and it would be disproportionate not to allow the parents to carry forward their case under their own full names. It was not for the court to specify which parts of the media might be allowed access, but it remained the case that members of the public would be excluded. Certain controls would remain as to the reporting of witness’s names.
Whilst the issue of transparency and openness in the family courts is the subject of an ongoing and sometimes vigorous debate, applications concerning the publication of information relating to family proceedings ‘fall to be determined by reference to the law as it is, not the law as some might think it ought to be.’

Munby J
[2006] EWHC 2733 (Fam), [2007] EMLR 199, (2007) HRLR 3, [2007] 1 FLR 1146, [2007] HRLR 3, [2008] 1 FCR 440, [2007] Fam Law 399
Bailii
Children Act 1989 97(2), Administration of Justice Act 1960 12, Family Proceedings Rules 1991 4.16(7), European Convention on Human Rights 6 8
England and Wales
Citing:
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 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 . .
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 – ex parte Guardian Newspapers Ltd CACD 30-Sep-1998
The defendants purported to serve a notice under Rule 24A(1) of the Crown Court Rules 1982 of an intention to apply for a hearing in camera of their application that the trial be stopped as an abuse of process.
Held: Where an application was . .
Cited – Pretto And Others v Italy ECHR 8-Dec-1983
The court considered the value of court proceedings being public: ‘The public character of proceedings before the judicial bodies referred to in Article 6(1) protects litigants against the administration of justice in secret with no public scrutiny; . .
Cited – Axen v Germany ECHR 8-Dec-1983
‘The public character of proceedings before the judicial bodies referred to in Article 6(1) protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts, . .
Cited – Reynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
Cited – Diennet v France ECHR 26-Sep-1995
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 (publicly); No violation of Art. 6-1 (impartiality); Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – . .
Cited – Regina v Felixstowe Justices ex parte Leigh CA 1987
The court considered the importance of the role played by the media in attending and reporting court proceedings. Watkins LJ said: ‘The role of the journalist and his importance for the public interest in the administration of justice has been . .
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 – Bergens Tidende And Others v Norway ECHR 2-May-2000
A newspaper complained that its rights under Article 10 of the Convention had been infringed by a libel action which a cosmetic surgeon had successfully brought against it in respect of defamatory articles it had published saying he was incompetent. . .
Cited – Re X (Disclosure of Information) FD 2001
There cannot be an expectation that expert evidence given in a children’s court will always stay confidential. The various aspects of confidentiality will have greater or lesser weight on the facts of each case. Munby J: ‘Wrapped up in this concept . .
Cited – Prager And Oberschlick v Austria ECHR 26-Apr-1995
Article 10 requires that journalists be permitted a good deal of latitude in how they present their material and that a degree of exaggeration must also be accepted. The media have a special place in any democratic society as purveyor of information . .
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 – Allan v Clibbery (1) CA 30-Jan-2002
Save in cases involving children and ancillary and other situations requiring it, cases in the family division were not inherently private. The appellant failed to obtain an order that details of an action under the section should not be disclosed . .
Cited – McCartan Turkington Breen (A Firm) v Times Newspapers Limited HL 2-Nov-2000
(Northern Ireland) The defendant reported a press conference at which the claims denying the criminal responsibility of an army private were made. The report was severely critical of the claimants, who then sued in defamation. The defendants claimed . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Harris v Harris; Harris v Attorney General FD 21-May-2001
The applicant had been committed for ten months for contempt, being in breach of family court injunctions. He applied to be released after two months on the basis that the unserved balance of the sentence be suspended. The court held that it had the . .
Cited – Clayton v Clayton CA 27-Jun-2006
The family had been through protracted family law proceedings and had been subject to orders restricting identification. The father now wanted to discuss his experiences and to campaign. He could not do so without his child being identified.
Cited – A Local Authority v W L W T and R; In re W (Children) (Identification: Restrictions on Publication) FD 14-Jul-2005
An application was made by a local authority to restrict publication of the name of a defendant in criminal proceedings in order to protect children in their care. The mother was accused of having assaulted the second respondent by knowingly . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – Pelling v Bruce-Williams, Secretary of State for Constitutional Affairs intervening CA 5-Jul-2004
The applicant sought an order that his application for a joint residence order should be held in public.
Held: Though there was some attractiveness in the applicant’s arguments, the issue had been fully canvassed by the ECHR. The time had come . .
Cited – B v The United Kingdom; P v The United Kingdom ECHR 2001
The provisions of rule 4.16(7) providing for confidentiality in children proceedings were Convention compliant: ‘such proceedings are prime examples of cases where the exclusion of the press and public may be justified in order to protect the . .
Cited – Moser v Austria ECHR 2006
The applicant’s son had been taken into care by a public authority. The family complained that the proceedings had been held in secret.
Held: There had been a breach of Article 6, inter alia on the ground that the hearing had not been in . .
Cited – In re L (Care: Assessment: Fair Trial) FD 2002
The court set out precepts to be followed by courts in preparing for care proceedings so as to ensure that they did not infringe the rights of the family to respect for their family life under article 8.
Munby J said: ‘ . . it must never be . .
Cited – Re B (Disclosure to Other Parties) 2001
Witnesses and others involved in children proceedings have article 8 rights. . .
Cited – Z v Finland ECHR 25-Feb-1997
A defendant had appealed against his conviction for manslaughter and related offences by deliberately subjecting women to the risk of being infected by him with HIV virus. The applicant, Z, had been married to the defendant, and infected by him with . .
Cited – Whitney v California 1927
(United States) Brandeis J considered that the risk of mis-reporting of court proceedings was in fact a reason for more court reporting: ‘If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes . .
Cited – In re W (Wardship: Discharge: Publicity) CA 1995
Four wards of court aged between nine and 14 had given an interview to a newspaper reporter, who plainly knew that they were wards of court, in circumstances which clearly troubled both the Official Solicitor, their guardian ad litem, who . .
Cited – Cream Holdings Limited and others v Banerjee and others HL 14-Oct-2004
On her dismissal from the claimant company, Ms Banerjee took confidential papers revealing misconduct to the local newspaper, which published some. The claimant sought an injunction to prevent any further publication. The defendants argued that the . .
Cited – Re Angela Roddy (a child) (identification: restriction on publication), Torbay Borough Council v News Group Newspapers FD 2-Dec-2003
A twelve year old girl had become pregnant. The Catholic Church was said to have paid her not to have an abortion. After the birth she and her baby were taken into care. The authority proposed the adoption of the baby. There was more publicity. . .
Cited – Re H (Freeing Orders: Publicity) CA 2005
Wall LJ said: ‘Cases involving children are currently heard in private in order to protect the anonymity of the children concerned. However, the exclusion of the public from family courts, and the lack of knowledge about what happens in them, easily . .
Cited – In re W (Children) (Care Proceedings: Witness anonymity) CA 7-Oct-2002
In care proceedings, the court had allowed a social worker to give evidence in such a way that her identity was hidden. She was in fear of violence.
Held: It was possible for a civil court to provide anonymity. These public law proceedings . .
Cited – British Broadcasting Company v Rochdale Metropolitan Borough Council and X and Y FD 24-Nov-2005
Application was made by the claimant for orders discharging an order made in 1991 to protect the identity of children and social workers embroiled in allegations of satanic sex abuse. The defendant opposed disclosure of the names of two social . .
See Also – Re a Minor CC 21-May-2004
(Norfolk County Court) . .
Appeal from – Norfolk County Council v Webster CC 24-Nov-2004
(Norwich County Court) . .

Cited by:
See Also – Norfolk County Council v Webster and others FD 17-Nov-2006
There had been care proceedings following allegations of physical child abuse. There had been a residential assessment. The professionals accepted the parents’ commitment to their son, but also found that they were unreliable. It was recommended . .
Cited – Lord Browne of Madingley v Associated Newspapers Ltd CA 3-Apr-2007
The appellant sought to restrict publication by the defendants in the Mail on Sunday of matters which he said were a breach of confidence. He had lied to a court in giving evidence, whilst at the same time being ready to trash the reputation of his . .
Cited – British Broadcasting Corporation v CAFCASS Legal and others FD 30-Mar-2007
Parents of a child had resisted care proceedings, and now wished the BBC to be able to make a TV programme about their case. They applied to the court for the judgment to be released. Applications were also made to have a police officer’s and . .
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 – 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.

Litigation Practice, Media, Children, Local Government, Human Rights

Leading Case

Updated: 11 November 2021; Ref: scu.245938

CH v GLS: FD 28 Nov 2019

Application under The Hague Convention and Brussels II Revised for the summary return of the parties’ daughter, A, aged four, to Spain.

[2019] EWHC 3842 (Fam), [2020] 4 WLR 74
Bailii
England and Wales

Children, International

Updated: 11 November 2021; Ref: scu.648692

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 the need for the Court’s prior permission.
Held: Being a ward of court did not create any special privilege for the child under law, and ‘the asserted principle or rule that judicial consent is required before the police can interview a ward of court, is impossible to reconcile either with the A v Liverpool City Council principle or with the ‘no privilege over other children’ principle.’
The position remained unsatisfactory and confused and was in need of clarification.
Orse: In re a Ward of Court (Wardship: Interview)

Sir James Munby P FD
[2017] EWHC 1022 (Fam), [2017] WLR(D) 312, [2017] 2 FLR 1515, [2017] Fam 369, [2017] 3 FCR 171, [2017] 4 All ER 331, [2017] 3 WLR 593
Bailii, WLRD
England and Wales
Citing:
Cited – Y v Z FD 28-Feb-2014
The mother applied to court for permission to disclose to the police the fact, as alleged, that the Father had lied in documents filed at court.
Bodey J said that: ‘it is no part of the functions of the Courts to act as investigators, or . .
Cited – Tower Hamlets v M and Others FD 27-Mar-2015
The authority sought orders to prevent the respondent children travelling to countries controlled by the ISIS groups. The parents being unlikely to be effective to restrain them, the court had made them wards of court.
Held: ‘the status of a . .
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 – 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 . .
Cited – In re B (Infants) 1962
. .
Cited – In re Mohamed Arif (An Infant) CA 1968
Russell LJ said: ‘When an infant becomes a ward of court, control over the person of the infant is vested in the judges of the Chancery Division of the High Court. It is for the judge to say by order from time to time where the ward is to reside and . .
Cited – In re D (A Minor) 1987
A dispute as to whether the education authority is exercising its powers properly raises matters of public law to be determined by reference not to the principles of family law but to the principles of substantive public law applied by the . .
Cited – Holmes-Moorhouse v Richmond Upon Thames HL 4-Feb-2009
The father had been awarded shared residence for three children. He asked the local authority to provide appropriate housing.
Held: The authority’s appeal succeeded.
‘When any family court decides with whom the children of separated . .
Cited – In re JS (A Minor) (Wardship: Boy Soldier) 1990
The Court considered the procedures for when a 17 year old a boy soldier who had gone absent without leave and returned home to his parents. He had been due to go to Iraq. His mother sought an order for wardship.
Held: The Court struck out . .
Cited – In re W (A Minor) (Adoption Agency: Wardship) 1990
The court considered the requirments for adoption of a child subject to wardship. . .
Cited – In re R (Wardship: Criminal Proceedings) 1991
Lord Brightman said: ‘Although the prerogative jurisdiction of the High Court in wardship cases remains, nevertheless the exercise of that jurisdiction has been and must continue to be treated as circumscribed by the existence of the statutory code. . .
Cited – Islington London Borough Council v TM FD 2004
The court considered when a ward of court baby was to live with his mother in a prison mother and baby unit. . .
Cited – CF v Secretary of State for the Home Department FD 30-Jan-2004
The court considered the choice or procedures arising in relation to a baby ward of court living with its mother in prison. The sentence to be served would take the child beyond the maximum age provided for in mother and baby units. . .
Cited – In re T (Wardship: Review of Police Protection Decision) (No 2) FD 2008
The court considered promises of confidentiality given by expert witneses to children.
Held: Full disclosure should be made to the court of the relevant material, and the court should then decide whether the ECHR Article 6 rights of the . .
Cited – In re T (Wardship: Impact of Police Intelligence) FD 2009
The police had obtained intelligence that the imprisoned father of a ward had taken out a contract to murder the child’s mother. As a consequence they took the child and his mother into police protection, which they threatened to withdraw if the . .
Cited – In re T(AJJ) (An Infant) CA 1970
Russell LJ said: ‘But it must be borne in mind that the infant is a ward of court under the judge’s order, and if anyone is minded to question or interview the infant they may well be at risk of being in contempt.’ . .
Cited – 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 . .
Cited – Practice Direction (Minor: Independent Reporter) 1983
An ‘independent’ reporter may not interview the ward without the court’s leave. . .
Cited – In re S (Minors) (Wardship: Police Investigation); Re S (Minors) (Wardship: Disclosure of Material) FD 1987
Local authority case records and a verbatim extract from the case records which had been exhibited to an affidavit from a social worker had been disclosed.
Held: Booth J asked as to the case records: ‘whether the words in the section . .
Cited – In re K (Minors) (Wardship: Criminal Proceedings) FD 24-Aug-1987
Children had been interviewed by the police before they became wards of court.
Held: It would be a constitutional impropriety for the wardship court to intervene in the statutory process governing the conduct of a criminal trial and in matters . .
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 – 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 – Egeneonu v Egeneonu FD 18-Jan-2017
H appeared to be in contempt of court having failed to return the children, wards of court, to the uk. W now sought an order for his extradition on the basis that the contempt was criminal. . .
Cited – In re W (Wardship: Discharge: Publicity) CA 1995
Four wards of court aged between nine and 14 had given an interview to a newspaper reporter, who plainly knew that they were wards of court, in circumstances which clearly troubled both the Official Solicitor, their guardian ad litem, who . .
Cited – In re C (A Minor) (Wardship: Medical Treatment) CA 1989
. .
Cited – Re B (A Minor) FD 15-Dec-1989
Ewbank J considered the case of a ward of court, aged 17.5 years who had been arrested by the police on suspicion of burglary and said: ‘After he was arrested he was interviewed by the police who did not know that he was a ward of court. They became . .
Cited – Re G; Re R Note (Wards) (Police Interviews) FD 19-Mar-1990
Sir Stephen Brown P gave judgment in a case in which the police sought permission, which was granted, to administer cautions to two wards of court.
Held: He said: ‘There is, therefore, no difficulty over the granting of leave in these two . .
Cited – Practice Direction (Ward: Witness at Trial) EW 11-Nov-1987
‘Where the police desire to interview a child who is already a ward of court application must be made for leave for the police to do so . . If it is desired to conduct any interview beyond what is permitted by the order further application should be . .
Cited – Practice Direction (Ward: Witness at Trial) (No 2) FD 18-Jul-1988
‘The registrar’s direction of 11 November 1987, Practice Direction (Ward: Witness at Trial) [1987] 1 W.L.R. 1739, set out the procedure to be followed to obtain leave for the police to interview a child who is a ward of court. It provided that all . .
Cited – In re A (A Minor) (Wardship: Police Caution) FD 28-Jun-1989
The Court considered the role of the wardship court where the police wished to caution a ward of court. The question fell into two parts. In relation to the first, Cazalet J said this: ‘The decision as to whether to caution in lieu of prosecuting is . .

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: 10 November 2021; Ref: scu.588154

London Borough of Redbridge v A, B and E (Failure To Comply With Directions): FD 17 Oct 2016

Authority’s Failure to comply with directions

The court considered the failure by the local authority applicant repeatedly to comply with court orders whils applying for care orders.
Held: ‘Case management directions are not mere administrative pedantry. The seemingly mundane nature of case management directions belies the fact that they are crucial to the fair administration of justice in a jurisdiction that has available to it arguably the most draconian power available to a court, namely the power to remove a child permanently from his or her birth family. Within this context, the the task of the case management judge is to arrange a trial that is fair by reference to domestic standards and Arts 6 and 8 of the ECHR (see Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] 1 FLR 1250). It is because a care case involves the State intervening in the family life of its citizens that it is so important that the local authority comply with the case management directions made by the court, directions that are designed to ensure the fairness of proceedings the outcome of which can be grave. Further, case management directions are the key tool by which the court maintains fidelity to the statutory principle, embodied s 1(2) of the Children Act 1989, that delay must be avoided. Within this context, local authorities are under a heavy duty to comply fully with orders of the court.’

MacDonald J
[2016] EWHC 2627 (Fam)
Bailii
England and Wales

Children

Updated: 10 November 2021; Ref: scu.570276

G, Re (Human Fertilisation and Embryology Act 2008): FD 6 Apr 2016

The applicant sought a declaration of parenthood. She and her same sex partner had been asked to signthe wrong forms when undergoing fertility treatment.
Held: The court was able to rely upon the euitable doctrine of recification were there had, as here, been a clear mistake. In this cas a wholesale transposition of the content from the correct form was better calculated to achieve the desired result.

Sir James Munby P FD
[2016] EWHC 729 (Fam), [2016] 4 WLR 65, [2016] WLR(D) 177
Bailii, WLRD
Family Law Act 1986 55A, Human Fertilisation and Embryology Act 2008 42(1)
England and Wales

Health Professions, Children, Equity

Updated: 10 November 2021; Ref: scu.561546

Z, Re (Recognition of Foreign Order): FD 8 Apr 2016

The court considered the exercise of the court’s powers under the inherent jurisdiction to recognise and enforce orders concerning the medical treatment of children made by courts of another member state of the European Union.
Held: The orders made by the Irish court were to stand as orders of the High Court of England and Wales

Baker J
[2016] EWHC 784 (Fam), [2016] WLR(D) 178, [2016] 3 WLR 791, [2016] Fam 375, [2016] Fam Law 684, [2017] 1 FLR 1236
Bailii, WLRD
England and Wales

Children, European, Health

Updated: 10 November 2021; Ref: scu.562141

Tower Hamlets v M and Others: FD 27 Mar 2015

The authority sought orders to prevent the respondent children travelling to countries controlled by the ISIS groups. The parents being unlikely to be effective to restrain them, the court had made them wards of court.
Held: ‘the status of a Ward of the High Court of England and Wales has achieved international recognition. For this reason, and because it vests parental responsibility solely in the High Court, it is particularly apposite in circumstances such as those contemplated here. All the major decisions relating to such children for the period of the operation of the wardship require the approval of the High Court.’ Orders had been made, the court emphasising the detail of the steps to be taken by local authorities in such cases. The first application here had fallen short of the standards required, and ‘I have concluded that the Local Authority consciously misrepresented the extent of the police awareness of this application. I do not reach that conclusion lightly. It is for this reason that I have felt it necessary to restate that which, to my mind, ought properly to be instinctive to every professional in this field, that is to say the very high degree of candour required in applications of this kind.’
Additionally the court had been re-assured that a lost passport had expired. In fact that was not the case. Moreover the police though discovering this had not informed social services.
Hayden J concluded: ‘the conventional safeguarding principles will still afford the best protection. Once again, this court finds it necessary to reiterate that only open dialogue, appropriate sharing of information, mutual respect for the differing roles involved and inter-agency cooperation is going to provide the kind of protection that I am satisfied that the children subject to these applications truly require.’
and . . ‘in this particular process it is the interest of the individual child that is paramount. This cannot be eclipsed by wider considerations of counter terrorism policy or operations.’

Hayden J
[2015 EWHC 869 (Fam), [2016] 1 All ER 182, [2015] 3 FCR 399, [2015] WLR(D) 155, [2015] Fam Law 650, [2015] 2 FLR 1431, [2015] PTSR D30
Bailii, WLRD
Children Act 1989 31(ii)
England and Wales
Citing:
Cited – In Re A-K (Minors)(Foreign Passport: Jurisdiction) CA 18-Feb-1997
A family court has power to require the surrender of a foreign passport to solicitors. . .
Cited – Re W (ex-parte orders) FD 2000
The circumstances in which ex parte relief is obtained in the Family Division are likely to vary very widely. Moreover, relief is often granted by the Division in circumstances which are very much removed from those in which ex parte relief will be . .
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 – In re S (A Child) (Family Division: Without Notice Orders) FD 2001
Munby J considered the the duty of full and frank disclosure which exists on those who seek to use a without notice procedure within Children proceedings. Generally, when granting ex parte injunctive relief in the Family Division, the court will . .

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, Litigation Practice, News

Updated: 10 November 2021; Ref: scu.545017

N (A Child: Section 37: Interim Care Order): FC 27 Nov 2014

[2014] EWFC 53
Bailii
England and Wales

Children

Updated: 10 November 2021; Ref: scu.561191

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 was unlawful within section 11 of the 2004 Act, and had been excessive in time.
Held: The claims failed. A police officer will not be deterred from performing his public duty to detect or prevent crime just because a child is affected but when he does perform that duty he must, as the circumstances require, have regard to the statutory need under the 2004 Act: ‘section 11 Children Act 2004 requires chief officers of police to carry out their functions in a way that takes into account the need to safeguard and promote the welfare of children . . However . . we do not consider that the defendant was in breach of this duty or of any of his public law duties.’ There was evidence that many in the crowd were armed, and much delay was caused by searching protesters as they were released: ‘the claim based upon unlawful detention at common law and interference with the claimants’ right to liberty under Articles 5 must fail.’
‘The chief officer’s statutory obligation is not confined to training and dissemination of information. It is to ensure that decisions affecting children have regard to the need to safeguard them and to promote their welfare.’ . . But . . ‘This does not mean that the duties and functions of the police have been re-defined by section 11 . . the guidance accurately states the obligation of chief officers of police ‘to carry out their existing functions in a way which takes into account the need to safeguard and promote the welfare of children’.’

Pitchford LJ, Supperstone J
[2011] EWHC 2317 (Admin), [2014] 1 All ER 953
Bailii
Children Act 2004 11, Criminal Justice and Public Order Act 1994 60, European Convention on Human Rights 5 8 19 11
England and Wales
Citing:
Cited – Austin and Another v Commissioner of Police of the Metropolis HL 28-Jan-2009
The claimants had been present during a demonstration policed by the respondent. They appealed against dismissal of their claims for false imprisonment having been prevented from leaving Oxford Circus for over seven hours. The claimants appealed . .
Cited – TS, Regina (on The Application of) v Secretary of State for The Home Department Admn 26-Oct-2010
The claimant had sought asylum as a child, declaring that he had not applied for asylum elsewhere. His fingerprints were matched to an applicant in Belgium.
Held: Wyn Williams J construed section 55 and the statutory guidance referred to in . .
Cited – Laporte, Regina (on the application of ) v Chief Constable of Gloucestershire HL 13-Dec-2006
The claimants had been in coaches being driven to take part in a demonstration at an air base. The defendant police officers stopped the coaches en route, and, without allowing any number of the claimants to get off, returned the coaches to London. . .
Cited – Austin and Another v Commissioner of Police of the Metropolis CA 15-Oct-2007
The claimants appealed dismissal of their claims for false imprisonment and unlawful detention by the respondent in his policing of a demonstration. They had been held within a police cordon in the streets for several hours to prevent the spread of . .
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 – Austin and Another v Commissioner of Police of the Metropolis HL 28-Jan-2009
The claimants had been present during a demonstration policed by the respondent. They appealed against dismissal of their claims for false imprisonment having been prevented from leaving Oxford Circus for over seven hours. The claimants appealed . .
Cited – Moos and Another, Regina (on The Application of) v Commissioner of the Police of The Metropolis Admn 14-Apr-2011
The claimants, demonstrators at the G20 summit, complained of the police policy of kettling, the containment of a crowd over a period of time, not because they were expected to to behave unlawfully, but to ensure a separation from those who were. . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Cited – Pieretti v London Borough of Enfield CA 12-Oct-2010
The claimant sought a declaration that the duty set out in the 1995 Act applies to the discharge of duties, and to the exercise of powers, by local housing authorities under Part VII of the Housing Act 1996 being the part entitled ‘Homelessness’. . .
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 by:
Cited – Nzolameso v City of Westminster SC 2-Apr-2015
The court was asked ‘When is it lawful for a local housing authority to accommodate a homeless person a long way away from the authority’s own area where the homeless person was previously living? ‘ The claimant said that on applying for housing she . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Police, Children, Human Rights

Updated: 10 November 2021; Ref: scu.443762

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 appealed against the order for disclosure.
Held: The appeal failed. The mother had waived professional legal privilege. The mother had in the course of her statement made not only glancing reference to her discussions with her solicitor, but had recounted a detaile dhistory. This was a highly unusual case, but the judge’s application of the law could not be criticised: ‘If it demonstrates that even experienced family lawyers were unaware of the full ramifications of waiver of professional privilege, then the case may be of benefit to the profession. To say no more than that ‘I am acting on the advice of my solicitors and counsel’ will not ordinarily justify further disclosure of the advice or of the circumstances in which any new witness statement came to be drafted. Counsel and solicitors will be aware (or ought to be aware) of the fact that advice may have been given to prompt the change of heart or change of attitude and they should be on guard to protect their client from revealing that advice either in the written evidence or when giving oral evidence to the court. Judges must also be astute to anticipate an unintentional observation which results in privilege being waived and must be ready to warn a witness of any such danger. But on the facts of this case, the law is clear: privilege was waived and fairness demanded further full disclosure. I would therefore dismiss the appeal.’

Ward, Rimer, Elias LJJ
[2011] 2 FCR 585, [2011] 4 All ER 434, [2011] Fam Law 926, [2011] EWCA Civ 684
Bailii
England and Wales
Citing:
Cited – 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 . .
Cited – Loizou, Regina v CACD 14-Jul-2006
The defendant appealed against her conviction for assisting in the disposal of the proceeds of criminal activity, saying that the judge had incorrectly ruled that she had waived legal privilege as to the advice given to her at the police station, . .
Cited – Brennan and others v Sunderland City Council Unison GMB EAT 16-Dec-2008
No Waiver for disclosure of Advice
EAT PRACTICE AND PROCEDURE: Admissibility of evidence
The claimant sought disclosure of certain legal advice on the basis that its effect, and a summary of its contents, had been put before the court and . .

Lists of cited by and citing cases may be incomplete.

Children, Legal Professions

Updated: 10 November 2021; Ref: scu.440764

In Re N (A Child): FD 20 Aug 2008

There had been several hearings and the father had been assisted by a McKenzie friend permitted to address the court. The father now objected to the mother’s McKenzie friend being given similar leave.
Held: Whilst Dr Pelling might make a preliminary argument on the point in chambers, if decided in his favour, the full point would require argument in open court where Dr Pelling would be unable to continue. ‘A McKenzie friend does not, as such, have a right of audience and . . the court can exercise its discretion to grant a McKenzie friend a right of audience in accordance with section 27(2)(c) of the 1990 Act ‘only . . for good reason’ and in the light of and bearing in mind the ‘general objective’ set out in section 17(1) of the Act and the ‘general principle’ set out in section 17(3). ‘ The court should be ‘very slow’ to grant a McKenzie friend a right of audience, but this is not to say that, as a general principle, such an order can be made only in ‘exceptional’ circumstances.
Circumstances differed. A ‘professional’ McKenzie friend should be allowed to appear only in exceptional circumstances, but a friend of the party will be given greater leeway. This case fell in between. ‘One also has to bear in mind . . the reality that legal aid is not available as readily as it was in the past, leading . . to the growth of litigants in person in all levels of family court.’
Though the case did not discuss anything of the private lives of the parties, it remained anonymised. The purpose of the proceedings was to put an end to the difficulties which had faced the child.

Munby J
[2008] EWHC 2042 (Fam), [2008] Fam Law 1093, [2008] 3 FCR 642, [2008] 2 FLR 1899, [2008] 1 WLR 2743
Bailii
Children Act 1989 8, Courts and Legal Services Act 1990 27
England and Wales
Citing:
Cited – D v S (Rights of Audience); In re and Application by Dr Pelling CA 18-Dec-1996
The court said that the representation of a litigant in person by a charging non-professional must be only exceptional. . .
Cited – President’s Guidance: McKenzie Friends FD 14-Apr-2008
‘A court may grant an unqualified person a right of audience in exceptional circumstances and after careful consideration. If the litigant in person wishes the MF to be granted a right of audience or the right to conduct the litigation, an . .
Cited – Guidance (McKenzie Friends) 2005
Sir Mark Potter gave guidance on the acceptance of McKenzie Friends as advocates: ‘A court may grant an unqualified person a right of audience in exceptional circumstances only and only after careful consideration (D v S (Rights of Audience) [1997] . .
Cited – Milne v Kennedy and Others CA 28-Jan-1999
Only in exceptional circumstances, should a lay person be allowed to represent a party in a county court. In this case no such exceptional circumstance had been established, and the decision was not to be upheld. . .
Cited – Clarkson v Gilbert and others CA 14-Jun-2000
The court considered the restrictions on lay representatives appearing in court as the related to relatives of the party.
Held: The same objections to granting rights of audience did not apply to a husband who merely wished to assist his wife . .
Cited – Mensah v Islington Council and Another CA 1-Dec-2000
Permission was sought for a McKenzie friend to address the court. Peter Gibson LJ said: ‘In accordance with the overriding objective of the CPR and to avoid the waste of today’s hearing, attended as this court had earlier directed, by counsel for . .
Cited – Noueiri v Paragon Finance Plc (Practice Note) CA 19-Sep-2001
Courts should be careful before allowing unqualified persons to represent other parties at court. Pleadings and similar documents must be signed by the party or their qualified legal representative. Others signing them may be in contempt of court . .
Cited – In re D (A Child) CA 15-Mar-2005
Application to allow representation by a solicitor who was presently struck off the roll denied. . .

Cited by:
Cited – Kennedy v Kennedy CA 24-Jun-2009
The parties, both English, met and married and made a life in Spain. They had two children. The mother brought the children back to the UK on the breakdown of the marriage. . .

Lists of cited by and citing cases may be incomplete.

Children, Legal Professions, Human Rights

Updated: 10 November 2021; Ref: scu.272794

Re Al M (Children): CA 28 Feb 2020

Publication of Children judgment – wide publicity

F brought wardship proceedings in respect of M and F’s two children, seeking their return to Dubai. F was the Ruler of the Emirate of Dubai. Media companies now sought publication of earlier judgments, and F appealed from an order for their publication. The President of the Family division had earlier found that F had arranged for the abduction of his daughters on earlier occasions, subsequently depriving them of their liberty. He had also continued a campaign of intimidation and humiliation against M even after she came to the UK.
Held: F’s appeal failed: ‘We do not consider that it would be right to impose a blanket prohibition preventing the accredited representatives of the media who attended the hearings before the President from reporting anything which was said or which occurred at the hearing: such an order would render pointless the practice of allowing such representatives to attend. It is therefore inevitable that there has to be some definition of the dividing line between what can and cannot be reported. We do not know whether there was any dispute at the time of the original formulation of paragraph 8 (b) of the President’s order. But it was not the subject of an appeal by any of the other parties, and in particular not by the Guardian, who might have been expected to object if he believed that there was a risk that the restrictions were too loosely expressed. We are not persuaded that they are. The phrase ‘directly related to’ the two judgments clearly means that publication, for example, of things said at the hearings relating to other aspects of the welfare of the children remains prohibited – for example, about their experiences, their health and education, or their views about publication, or the history of contact between them and their father. ‘

Lord Justice Underhill VP CA
[2020] EWCA Civ 283
Bailii
Administration of Justice Act 1960 12(1), European Convention on Human Rights
England and Wales
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 – A Local Authority v W L W T and R; In re W (Children) (Identification: Restrictions on Publication) FD 14-Jul-2005
An application was made by a local authority to restrict publication of the name of a defendant in criminal proceedings in order to protect children in their care. The mother was accused of having assaulted the second respondent by knowingly . .
Cited – Re J (A Child) (Reporting Restriction: Internet: Video) FD 5-Sep-2013
‘This case raises important questions about the extent to which the public should be able to read and see what disgruntled parents say when they speak out about what they see as deficiencies in the family justice system, particularly when, as here, . .
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 – PNM v Times Newspapers Ltd and Others CA 1-Aug-2014
The claimant sought a privacy order after being accused of historical serious sexual offences against children.
Held: The judge had properly acted within the range of his discretion, and the appeal was dismissed. The judgment would however . .
Cited – Haney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .
Cited – PJS v News Group Newspapers Ltd SC 19-May-2016
The appellants had applied for restrictions on the publication of stories about their extra marital affairs. The Court of Appeal had removed the restrictions on the basis that the story had been widely spread outside the jurisdiction both on the . .
Cited – AR, Regina (on The Application of) v Chief Constable of Greater Manchester Police and Another SC 30-Jul-2018
The appellant had been tried for and acquitted on a criminal charge. He now challenged the disclosure by the respondent of the charge in an Enhanced Criminal Record Certificate.
Held: His appeal failed. The critical question was whether the . .
Cited – Re W (Children) CA 25-Feb-2016
Appeal against order as to media arrangements for fact finding hearing.
McFarlane LJ said: ‘In the present case, Jackson J used the power available to him to move from the default position so as to allow a controlled degree of publicity. This . .
See Also – Re Al M (Factfinding) FD 11-Dec-2019
. .
See also – RE Al M (Assurances and Waiver) FD 17-Jan-2020
. .
Appeal from – Re Al M (Publication) FD 27-Jan-2020
. .

Lists of cited by and citing cases may be incomplete.

Children, Media, Human Rights

Updated: 10 November 2021; Ref: scu.648603

A and B (Parental Alienation NO.4): FD 5 Jul 2021

[2021] EWHC 2603 (Fam)
Bailii
England and Wales

Children

Updated: 10 November 2021; Ref: scu.668302

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 were divorced, and they differed as to what should be done.
Held: The form of application was for a specific issue order. JS had capacity, and there would be no inevitable practical obstacle: ‘All this case is about is providing a means by which the uncertainty about what can happen during JS’s lifetime and after her death can be resolved so far as possible. JS cannot expect automatic acceptance of her wishes, but she is entitled to know whether or not they can be acted upon by those who will be responsible for her estate after her death. It would be unacceptable in principle for the law to withhold its answer until after she had died. Also, as a matter of practicality, argument about the preservation issue cannot be delayed until after death as the process has to be started immediately if it is to happen at all.’
Applying the JSB case, with acknowledgement to the different statutory context, a prospective order was available, and granted injunctions limiting the manner in which the father can act not only while JS is alive, but also following her death, and the making of a prospective order investing the mother with the sole right to apply for letters of administration after JS dies.

Peter Jackson J
[2016] Inquest LR 259, [2016] EWHC 2859 (Fam), (2017) 153 BMLR 152, [2016] WLR(D) 650, [2017] WTLR 227, [2017] Med LR 37, [2017] 4 WLR 1
Bailii, Judiciary
Human Tissue Act 2004, Children Act 1989 8, Wills Act 1837 8, Non-Contentious Probate Rules 1987 22(1)(c)
England and Wales
Citing:
Cited – Williams v Williams 1882
By codicil to his will the deceased directed that his executors should give his body to Miss Williams; and by letter he requested her to cremate his body under a pile of wood, to place the ashes into a specified Wedgwood vase and to claim her . .
Cited – 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. . .
Cited – Fessi v Whitmore 1999
The place with which the deceased had the closest connection is relevant as to the decision as to his or her ultimate resting place. . .
Cited – Borrows v HM Coroner for Preston QBD 15-May-2008
The family members disputed who should have custody of the deceased’s body and the right to make arrangements for the funeral. . .
Cited – Ibuna and Another v Arroyo and Another ChD 2-Mar-2012
The action concerns the competing claims as to the right to take possession of the body of Ignacio Arroyo (‘Congressman Arroyo’) to enable it to be buried. Congressman Arroyo was a congressman of the Negros Occidental Province of the Philippines. . .
Cited – Anstey v Mundle ChD 2016
When faced with a dispute as to the disposal of a deceased’s body, the role of the court is not to give directions for the disposal of the body but to resolve disagreement about who may make the arrangements . .
Cited – Curtis v Sheffield CA 1882
Lord Jessel MR said: ‘Now it is true that it is not the practice of the Court, and was not the practice of the Court of Chancery, to decide as to future rights, but to wait until the event has happened, unless a present right depends on the . .
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 . .
Cited – Public Trustee v Cooper 2001
The court looked at the circumstances required when a court was asked to approve a proposed exercise by trustees of a discretion vested in them. The second category of circumstances was (quoting Robert Walker J): ‘Where the issue was whether the . .
Cited – Burke, Regina (on the Application of) v General Medical Council and others (Official Solicitor and others intervening) CA 28-Jul-2005
The claimant suffered a congenital degenerative brain condition inevitably resulting in a future need to receive nutrition and hydration by artificial means. He was concerned that a decision might be taken by medical practitioners responsible for . .
Cited – Hartshorne v Gardner ChD 14-Mar-2008
The deceased died in a motor accident, aged 44. The parties, his mother and father, disputed control over his remains, and requested an order from the court.
Held: The court has such an inherent jurisdiction. Since the claimants had an equal . .
Applied – In re JSB; Chief Executive, Ministry of Social Development v S and B 4-Nov-2009
(New Zealand High Court) The child was alive but severely brain damaged, having been injured by his mother. There was a dispute between his grandparents, who were caring for him, and his birth parents as to the funeral arrangements if he were to . .
Cited – Takamore v Clarke and others 18-Dec-2012
Supreme Court of New Zealand – The deceased was Tuhoe, but had spent the last twenty years of his life in Christchurch with his partner, whom he named his executor in his will. After his death his Tuhoe whanau moved his body to the Bay of Plenty and . .
Cited – Hughes and Others v Bourne and Others ChD 27-Jul-2012
A trust owned a majority shareholding in a family firm. A purchaser wished to buy a substantial interest. Differing sections of the beneficiaries wanted either to sell or not. The trustees sought advance approval for a planned use of their powers to . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Children, Health Professions

Leading Case

Updated: 09 November 2021; Ref: scu.571412

The Health Service Executive of Ireland v PA and Others: CoP 3 Jun 2015

hsen_paCoP201506

The HSE sought orders under s.63 of and Schedule 3 to the 2005 Act recognising and enforcing orders by the Irish High Court for the detention of three young persons (‘PA’, ‘PB’, and ‘PC’) at a special unit known in Northampton.
Held: On an application to for confirmation of a compulsory psychiatric placement under Schedule 3 to the 2005 Act the court should itself carry out a review in oder to be satisfied that an order would comply with the Convention and so in that (i) the Winterwerp criteria were met and (ii) that the individual’ would have an effective right to regular reviews of the detention and to challenge it in court if necessary.

Baker J
[2015] EWCOP 38, [2015] WLR(D) 243
Bailii, WLRD
Mental Capacity Act 2005 63 Sch 3, European Convention on Human Rights , Hague Convention on the International Protection of Adults 2000 1 3
Citing:
Cited – Winterwerp v The Netherlands ECHR 24-Oct-1979
A Dutch national detained in hospital complained that his detention had divested him of his capacity to administer his property, and thus there had been determination of his civil rights and obligations without the guarantee of a judicial procedure. . .
Cited – JO v GO and Others; re PO; Re O (Court of Protection: Jurisdiction) CoP 13-Dec-2013
Jurisdiction of the Court of Protection
PO, a lady in her late eighties lacked capacity to decide her own care. She had been habitually resident in Hertfordshire. Her daughters now challenged their brother who had moved her to a care home in Scotland when he himself moved there. An . .

Lists of cited by and citing cases may be incomplete.

International, Children, Health, Human Rights

Updated: 09 November 2021; Ref: scu.548027

AS v London Borough of Croydon: Admn 25 Oct 2011

The claimant, a minor acting by the Attorney General as best friend challenged by judicial review the age assessments made of him by the respondent authority.

Anthony Thornton QC J
[2011] EWHC 2091 (Admin)
Bailii
England and Wales

Children

Updated: 09 November 2021; Ref: scu.448503

AB v CD: FD 21 Nov 2019

Final hearing in the father’s application for the return under the Hague Convention of his daughter Y to Belgium.

Mrs C Ambrose
[2019] EWHC 3543 (Fam)
Bailii
England and Wales

Children, International

Updated: 09 November 2021; Ref: scu.648688

Re A and S (Children): FD 29 Jul 2021

[2021] EWHC 2492 (Fam)
Bailii
England and Wales

Children

Updated: 09 November 2021; Ref: scu.668227

AB v XY: FD 18 Apr 2019

Judgment on application for the summary return of a child Z, to Malta pursuant to the 1980 Convention,

Mr Gupta QC
[2019] EWHC 3098 (Fam)
Bailii
England and Wales

Children, International

Updated: 09 November 2021; Ref: scu.648636

Re H (Jurisdiction): FD 26 May 2016

Order that father give full information about the whereabouts of a six-year-old child who is a British national but is not known to have been present in this country at any stage, let alone been habitually resident here.

Peter Jackson J
[2016] EWHC 1252 (Fam), [2016] WLR(D) 303
Bailii, WLRD
England and Wales

Children

Updated: 09 November 2021; Ref: scu.565532

In the matter of the Human Fertilisation and Embryology Act 2008 ; A and Others: FD 11 Sep 2015

The court was asked: ‘who, in law, is or are the parent(s) of a child born as a result of treatment carried out under this legislation’
Held: The court pointed again to the failures to keep proper records within several fertility clinics. However: ‘Given the statutory framework, what it provides and, equally significant, what it does not provide, I do not see how a mere failure to comply with the HFEA’s direction that Form WP and Form PP ‘must’ be used can, of itself, invalidate what would otherwise be a consent valid for the purposes of section 37 or section 44. These sections do not prescribe a specific form. What is required is a ‘notice’ and that is not defined, although I would agree with Miss Broadfoot that, given the context, what is required is a document of some formality. The argument must be that it is the combined operation of section 12(1)(d) of the 1990 Act, which in effect elevates this requirement into a condition of the licence, coupled with the words ‘treatment provided . . under the licence’ in sections 37(1)(a) and 44(1)(a) (and the corresponding words ‘being so treated’ in sections 37(1)(b) and 44(1)(b)), that invalidates what would otherwise be a consent valid for the purposes of section 37 or section 44.’
. . And ‘in principle:
i) The court can act on parol evidence to establish that a Form WP or a Form PP which cannot be found was in fact properly completed and signed before the treatment began;
ii) The court can ‘correct’ mistakes in a Form WP or a Form PP either by rectification, where the requirements for that remedy are satisfied, or, where the mistake is obvious on the face of the document, by a process of construction without the need for rectification.
iii) A Form IC, if it is in the form of the Barts Form IC or the MFS Form IC as I have described them above, will, if properly completed and signed before the treatment began, meet the statutory requirements without the need for a Form WP or a Form PP.[2]
iv) It follows from this that the court has the same powers to ‘correct’ a Form IC as it would have to ‘correct’ a Form WP or a Form PP.’

Sir James Munby
[2015] EWHC 2602 (Fam), [2016] 1 WLR 1325, (2015) 146 BMLR 123, [2015] 3 FCR 555, [2016] 1 All ER 273, [2015] WLR(D) 387, [2015] Fam Law 1333
Bailii, WLRD
Human Fertilisation and Embryology Act 2008
England and Wales
Citing:
Cited – AB v CD FD 24-May-2013
The Applicant AB, a lesbian woman aged 37, applied for contact to twin boys, E and F, aged 3. In making that application, she described herself as the boys’ ‘parent’; she ws so defined on the boys’ birth certificates. For the first 17 months of . .
Cited – Wallersteiner v Moir CA 1974
The making of a declaration is a judicial act. A shareholder is entitled to bring a derivative action on behalf of the company when it is controlled by persons alleged to have injured the company who refuse to allow the company to sue. It is an . .
Cited – X v Y v St Bartholomew’s Hospital Centre for Reproductive Medicine (Assisted Reproduction: Parent) FC 13-Feb-2015
The required Form PP was not on the clinic’s file. Theis J set out four issues which accordingly arose: (1) Did X sign the Form PP so that it complied with section 37(1) of the 2008 Act? (2) If X did, was the Form PP subsequently mislaid by the . .

Lists of cited by and citing cases may be incomplete.

Children, Health Professions

Updated: 09 November 2021; Ref: scu.552779

Horvath And Vadaszi v Hungary: ECHR 9 Nov 2010

(Admissibility) Two children found to have minor intellectual disabilities, and both of Roma origin, were placed in a remedial school class with a teacher without a degree in special educational needs. They complained that the decision to place them in a special class was based on their ethnic origin and therefore discriminatory. They brought unsuccessful legal proceedings.
The Court declared the case inadmissible because: the applicants had not brought a civil claim under section 77 of the Public Education Act; they had not met the requirement to come to the European Court of Human Rights within six months of the final decision by the Hungarian legal authorities concerning one set of proceedings and they had not raised the issue of discrimination in the other.

F Tulkens P
2351/06, [2010] ECHR 1926
Bailii
European Convention on Human Rights
Human Rights

Human Rights, Education, Children, Discrimination

Leading Case

Updated: 09 November 2021; Ref: scu.426829

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 began child abduction proceedings which had kept M and the two daughters in London. M conceded that the habitual residence had been in the US, but claimed acquiescence. The court found acquiescence, but even so ordered their return to the US for their courts to make final decisions. M appealed.
Held: M’s appeal succeeded, and the children could return to Nigeria with her. The judge had erred in applying a hierarchy to the tests applicable under the Convention, and as to the judge’s reliance on the adaptability of the children because of their young age, ‘the divergence of judicial opinion about this only serves to show that cases such as this one cannot be determined by a generalised approach and that, as Re M makes very clear, the individual circumstances of the particular child are what matter and must be examined and weighed in the balance when exercising a discretion under the Hague Convention as to whether to return a child. ‘

Wilson, Pitchford, Black LLJ
[2011] EWCA Civ 128, [2011] Fam Law 452, [2011] 1 FCR 363
Bailii
Hague Convention on the Civil Aspects of International Child Abduction 1980
England and Wales
Citing:
Cited – Piglowska v Piglowski HL 24-Jun-1999
No Presumption of House for both Parties
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
Cited – 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 . .
Applied – 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 – in Re B (Appeal: Lack of Reasons) CA 2003
Thorpe LJ considered the standard requirfed of a judgment: ‘For my part, I would say that the essential test is: does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which . .
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, International

Updated: 09 November 2021; Ref: scu.429629

Relating to certain aspects of the laws on the use of languages in education in Belgium (Belgian Linguistics) No 2: ECHR 9 Feb 1967

The applicants, parents of more than 800 Francophone children, living in certain (mostly Dutch-speaking) parts of Belgium, complained that their children were denied access to an education in French.
Held: In establishing a system or regime to comply with a Convention obligation, a State may include within the system elements that are not strictly required by the Convention itself, as in the case of appeal rights in the context of Article 6; and where that is done, the distribution of these supererogatory rights must comply with Article 14: ‘the Contracting Parties do not recognise such a right to education as would require them to establish at their own expense, or to subsidise, education of any particular type or at any particular level. However, it cannot be concluded from this that the State has no positive obligation to ensure respect for such a right as is protected by Article 2. . [The obligation is] of guaranteeing . . the right, in principle, to avail themselves of the means of instruction existing at a given time . . The first sentence of Article 2 . . consequently guarantees, in the first place, a right of access to educational institutions existing at a given time . . For the ‘right to education’ to be effective, it is further necessary that, inter alia , the individual who is the beneficiary should have the possibility of drawing profit from the education received, that is to say, the right to obtain, in conformity with the rules in force in each State…official recognition of the studies which he has completed . . The right . . guaranteed by the first sentence of Article 2 . . by its very virtue calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and the individuals.’

1474/62, 1677/62, 1691/62, 1769/63, 1994/63, 2126/64, (1968) 1 EHRR 252, [1968] ECHR 3, [1967] ECHR 1
Worldlii, Worldlii
European Convention on Human Rights 14
Human Rights
Cited by:
Cited – Regina on the Application of Clift v Secretary of State for the Home Department Admn 13-Jun-2003
The claimant had been sentenced to 18 years imprisonment. He challenged the differing treatment for parole purposes of those sentenced to more than 15 years, as infringing his human rights, insofar as the decision was retained by the Home Secretary. . .
Cited – Carson and Reynolds v Secretary of State for Work and Pensions CA 17-Jun-2003
The claimant Reynolds challenged the differential treatment by age of jobseeker’s allowance. Carson complained that as a foreign resident pensioner, her benefits had not been uprated. The questions in each case were whether the benefit affected a . .
Cited – Regina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .
Cited – Malekshad v Howard De Walden Estates Limited CA 23-May-2001
The applicant sought the leasehold enfranchisement of two leasehold properties. They were contained in separate leases, but the property had been treated as one for some time. A part of one property extended under part of the other. The claim was . .
Cited – Bishop of Roman Catholic Diocese of Port Louis and Others v Suttyhudeo Tengur and Others PC 3-Feb-2004
PC (Mauritius) A father challenged the constitutionality of a system where 50% of places in Catholic run secondary schools were allocated to Catholic childen, and fifty per cent according to merit. He feared this . .
Cited – Douglas v North Tyneside Metropolitan Borough Council CA 19-Dec-2003
The applicant had sought a student loan to support his studies as a mature student. It was refused because he would be over 55 at the date of the commencement of the course. He claimed this was discriminatory.
Held: The Convention required the . .
Cited – Ali v The Head Teacher and Governors of Lord Grey School CA 29-Mar-2004
The student had been unlawfully excluded from school. The school had not complied with the procedural requirements imposed by the Act.
Held: Though the 1996 Act placed the responsibilty for exclusion upon the local authority, the head and . .
Cited – Begum, Regina (on the Application of) v Denbigh High School Admn 15-Jun-2004
A schoolgirl complained that she had been excluded from school for wearing a form of attire which accorded with her Muslim beliefs.
Held: The school had made great efforts to establish what forms of wear were acceptable within the moslem . .
Cited – Morris, Regina (on the Application of) v Westminster City Council and Another Admn 7-Oct-2004
The applicant questioned the compatibility of s185 of the 1996 Act with Human Rights law. The family sought emergency housing. The child of the family, found to be in priority housing need, was subject also to immigration control. Though the matter . .
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – Hooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions HL 5-May-2005
Widowers claimed that, in denying them benefits which would have been payable to widows, the Secretary of State had acted incompatibly with their rights under article 14 read with article 1 of Protocol 1 and article 8 of the ECHR.
Held: The . .
Cited – Carson, Regina (on the Application of) v Secretary of State for Work and Pensions; Reynolds v Same HL 26-May-2005
One claimant said that as a foreign resident pensioner, she had been excluded from the annual uprating of state retirement pension, and that this was an infringement of her human rights. Another complained at the lower levels of job-seeker’s . .
Cited – Kjeldsen, Busk, Madsen and Peddersen v Denmark ECHR 7-Dec-1976
The claimants challenged the provision of compulsory sex education in state primary schools.
Held: The parents’ philosophical and religious objections to sex education in state schools was rejected on the ground that they could send their . .
Cited – Campbell and Cosans v The United Kingdom ECHR 25-Feb-1982
To exclude a child from school for as long as his parents refused to let him be beaten ‘cannot be described as reasonable and in any event falls outside the State’s power of regulation in article 2’. The Convention protects only religions and . .
Cited – Timishev v Russia ECHR 13-Dec-2005
The applicant complained of an alleged infringement of his Article 2 rights. His children had been excluded from school because he was not registered as resident in the area. His appeal to the domestic courts was dismissed, although the Government . .
Cited – Ali v Head Teacher and Governors of Lord Grey School HL 22-Mar-2006
The claimant had been accused with others of arson to school property. He was suspended for the maximum forty five day period. The school then invited the family to discuss arrangements to return to the school, but the family did not attend. After . .
Cited – Secretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .
Cited – AL (Serbia) v Secretary of State for the Home Department; Rudi v Same HL 25-Jun-2008
Each claimant had arrived here with their parents, and stayed for several years. They were excluded from the scheme allowing families who had been here more than three years to stay here, because they had attained 18 and were no longer dependant on . .
Cited – Countryside Alliance and others, Regina (on the Application of) v Attorney General and Another HL 28-Nov-2007
The appellants said that the 2004 Act infringed their rights under articles 8 11 and 14 and Art 1 of protocol 1.
Held: Article 8 protected the right to private and family life. Its purpose was to protect individuals from unjustified intrusion . .
Cited – McDougal, Regina (On the Application of) v Liverpool City Council Admn 22-Jul-2009
Right Questions asked on School Closure
The claimant sought to challenge the respondent’s decision to close a local school. The choice had been made on academic results and the number of vacancies.
Held: The application failed. The Council had complied with its obligation in . .
Cited – A v Essex County Council SC 14-Jul-2010
The claimant, a severely disabled child sought damages, saying that for well over a year, the local authority had made no provision for his education.
Held: His appeal against the striking out of his action failed. The correct approach had . .
Cited – Nicholas v Secretary of State for Defence CA 4-Feb-2015
The claimant wife of a Squadron Leader occupied a military house with her husband under a licence from the defendant. When the marriage broke down, he defendant gave her notice to leave. She now complained that the arrangement was discriminatory and . .
Cited – Tigere, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills SC 29-Jul-2015
After increasing university fees, the student loan system was part funded by the government. They introduced limits to the availability of such loans, and a student must have been lawfully ordinarily resident in the UK for three years before the day . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Education, Children

Leading Case

Updated: 09 November 2021; Ref: scu.164857

In re M (Children): CA 1 Jul 2011

The local authority had obtained a care order so that it could inform the three children of the identity of their father’s first marriage, the mother and father being unwilling to make the disclosure. He had been convicted of relatively minor indecent assaults on two children in that first family, but in later therapy sessions within the current relationship, he had disclosed a rather more serious involvement.
Held: The appeal failed. ‘[T]his is a classic case of a careful balanced explanation from an experienced family division judge of why, out of the two alternatives presented, one by the local authority (now), the other by the mother (at some uncertain future date), he chose the proposal of the local authority over that of the mother. It is manifest that he correctly directed himself as to the law. It is manifest that he correctly directed himself as to his task. It is manifest that he correctly directed himself as to the essential choice. So, the only remaining argument for the appellant is that he has somehow failed to carry out the balancing exercise correctly, either by ignoring some relevant factor or by giving undue weight to another.’ No such error had been identified.

Thorpe, Longmore, Stanley Burnton LJJ
[2011] EWCA Civ 1035
Bailii
Children Act 1989
England and Wales

Children

Updated: 09 November 2021; Ref: scu.443579

In Re I (A Child): SC 1 Dec 2009

The child had been born in Britain to British citizen parents from Pakistan and India. There had been care proceedings, but later and with the court’s consent the father took him to Pakistan undertaking to return him, but then failed to do so. Contact was re-established, but the child was now habitually resident in Pakistan. It was now asked whether the court had any remaining jurisdiction to make orders about the child under the 1986 Act, incorporating Brussels II revised, and was it possible for the parties by agreement to give the court that jurisdiction. Pakistan had neither signed nor ratified the Convention.
Held: The mother’s appeal was allowed. The court had jurisdiction to make orders in respect of the child.
Nothing in the Regulations limited jurisdiction to children habitually resident in the EU. The time of seisin is fixed when the document initiating the proceedings is lodged with the court or, if it has to be served before lodging, is received by the authority responsible for service, although in each case the court may not actually be seised if the applicant does not take the steps required to inform either the respondent or the court.
The parties had each displayed unequivocal acceptance of the jurisdiction, and should not be allowed to withdraw it. Furthermore it had been decided that it was in the best interests of the child that the UK court should continue to deal with the issue.
Lord Clarke said: ‘As I see it, as stated above, the way article 16 works is that there is seisin on the date identified subject to a condition defeasant. That is not a case of apparent seisin maturing into actual seisin but there being actual seisin, which would take priority over any subsequent seisin, unless there was no service or lodgement.’
Orse: Re I (A Child) (Contact Application: Jurisdiction)

Lord Hope, Deputy President, Lady Hale, Lord Collins, Lord Kerr, Lord Clarke
[2009] UKSC 10, UKSC 2009/0075, [2010] 1 All ER 445, [2009] 3 WLR 1299, [2010] 1 FCR 200, [2010] 1 AC 319, [2010] Fam Law 237, [2010] 1 FLR 361
Bailii, SC, SC Summ
Council Regulation (EC) No 2201/2003, Children Act 1989, Family Law Act 1986 2, Hague Convention of 19 October 1996 on Jurisdiction, Applicable law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children
England and Wales
Citing:
Cited – Bush v Bush CA 24-Jul-2008
The court accepted jurisdiction over a child habitually resident abroad with the written consent of both parties. . .
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 by:
Cited – Thum v Thum FC 21-Oct-2016
No abuse of process in service error
The husband claimed that the W was guilty of abuse of process by issuing the divorce petion, but then not serving it for many months in an attempt to gain a tactical jurisdictional advantage under Brussels II.
Held: H’s application was . .
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 N (Children) SC 13-Apr-2016
The Court considered whether the future of two little girls, aged four and two years, should be decided by the courts of this country or by the authorities in Hungary. Both children were born in England and lived all their lives here. But their . .
Cited – Mittal v Mittal CA 18-Oct-2013
The parties were born and lived in India and were Hindu. They came to the UK but after separation, returned to India, leaving no assets here. H began divorce proceedings in India, but W then issued a petition here. She now appealed against on order . .

Lists of cited by and citing cases may be incomplete.

Children, European

Updated: 09 November 2021; Ref: scu.381642

MBC v AM and Others (DOL Orders for Children Under 16): FD 8 Sep 2021

Child Care in Unregistered Accomodation

‘four cases which give rise to the same question of law in the context of the coming into force on 9 September 2021 of the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021, which statutory instrument amends the Care Planning, Placement and Case Review (England) Regulations 2010. The effect of those amendments is, in short, to prohibit the placement of a looked after child under the age of 16 in unregulated accommodation. Within this context, the question of law before the court is whether it remains open to the High Court to authorise, under its inherent jurisdiction, the deprivation of liberty of a child under the age of 16 where the placement in which the restrictions that are the subject of that authorisation will be applied is prohibited by the terms of the amended statutory scheme. For the reasons set out in this judgment I am satisfied that the answer to that question is yes, subject always to the rigorous application of the President’s Guidance of November 2019 entitled Placements in unregistered children’s homes in England or unregistered care home services in Wales and the addendum thereto dated December 2020.’

Mr Justice MacDonald
[2021] EWHC 2472 (Fam)
Bailii
Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021, Care Planning, Placement and Case Review (England) Regulations 2010
England and Wales

Children, Local Government

Updated: 09 November 2021; Ref: scu.667759

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 and or contact. The other mother took the children secretly to Cornwall.
Held: Baroness Hale said: ‘The statutory position is plain: the welfare of the child is the paramount consideration. As Lord MacDermott explained, this means that it ‘rules upon or determines the course to be followed’. There is no question of a parental right. As the Law Commission explained, ‘the welfare test itself is well able to encompass any special contribution which natural parents can make to the emotional needs of their child’ or, as Lord MacDermott put it, the claims and wishes of parents ‘can be capable of ministering to the total welfare of the child in a special way’.’ The court recognised three separate kinds of parenthod, genetic, gestational and social. As to the facts of the case: ‘the mother had behaved very badly. She, together with MG, had deliberately disobeyed the court’s order. This had required considerable planning and the deception of her own solicitor. More importantly, it had been a terrible thing to do to the children. The aim had been to frustrate the contact arrangements ordered by the court. However, once she had been located and contact arrangements reinstated, she had abided by them.’
The appeal succeeded: ‘the courts below have allowed the unusual context of this case to distract them from principles which are of universal application. First, the fact that CG is the natural mother of these children in every sense of that term, while raising no presumption in her favour, is undoubtedly an important and significant factor in determining what will be best for them now and in the future. Yet nowhere is that factor explored in the judgment below. Secondly, while it may well be in the best interests of children to change their living arrangements if one of their parents is frustrating their relationship with the other parent who is able to offer them a good and loving home, this is unlikely to be in their best interests while that relationship is in fact being maintained in accordance with the court’s order. ‘

Lord Nicholls of Birkenhead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond
Times 27-Jul-2006, [2006] UKHL 43, [2006] 1 WLR 2305, [2006] 1 AC 576, [2006] 1 FLR 601
Bailii
Guardianship of Infants Act 1925 1, Children Act 1989 1
England and Wales
Citing:
Cited – In re E (Minors) (Residence Orders: Imposition of Conditions) CA 30-Apr-1997
A residence order can not be accompanied by an order as to where a parent with care must live in the UK or with whom. An appeal may well arise in which a disappointed applicant will contend that section 13(1)(b) of the Children Act 1989 imposes a . .
Cited – Re B and A and C and D (Contact and Parental Responsibility: Lesbian Mothers and Known Father) No 2 FD 12-Jan-2006
In deciding whether or not to make a parental responsibility order in favour of the child’s father Black J said: – ‘Perhaps most importantly of all, I am considerably influenced by the reality that Mr B is D’s father. Whatever new designs human . .
Appeal from – In re G (Children) (Shared Residence: Same Sex partner) CA 6-Apr-2005
A lesbian couple had children by IVF. After the relationship failed, application was made by the non-resident partner for a shared residence order. She appealed a refusal.
Held: the judge had erred. The report from Cafcass had recommended the . .
Cited – 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 . .
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: . .
Appeal from – 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 . .
Cited – 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 . .
Cited – Re H (A Minor) (Custody: Interim Care and Control) CA 1991
Lord Donaldson of Lymington MR said: ‘So it is not a case of parental right opposed to the interests of the child, with an assumption that parental right prevails unless there are strong reasons in terms of the interests of the child. It is the same . .
Cited – Re W (A Minor) (Residence Order) CA 3-May-1993
There is a rebuttable but strong presumption that a child should be with his or her natural parents. Waite LJ said: ‘The authorities which have been cited by Balcombe LJ illustrate the difficulty of finding, within the infinite variety of . .
Cited – 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 – 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 . .
Cited – Re Evelyn CA 1998
. .
Cited – Re C (MA) (An Infant) 1966
The court heard psychiatric evidence of the potential depth of the bond between father and child. . .
Cited – V-P v V-P (Access to Child) CA 1978
The court discussed whether more potent encouragement to comply with court orders may be to contemplate changing the child’s living arrangements. Ormrod LJ said: ‘I do not wish to issue threats, but the mother should, I think, realise this: the . .
Cited – Re D (Contact and Parental Responsibility: Lesbian Mothers and Known Father) 2006
. .

Cited by:
Cited – In re S (A Child) CA 12-Aug-2008
The mother of the child applied for leave to appeal against an order under section 38(9), seeking a residential assessment.
Held: The judge had been exercising a discretion which he had done properly, and the court would not interfere with it. . .
Cited – Holmes-Moorhouse v Richmond Upon Thames HL 4-Feb-2009
The father had been awarded shared residence for three children. He asked the local authority to provide appropriate housing.
Held: The authority’s appeal succeeded.
‘When any family court decides with whom the children of separated . .
Cited – In re B (A Child) SC 19-Nov-2009
The Court considered a decision granting to a father the care of his child who appeared to have become happily settled with the maternal grandmother.
Held: The grandmother’s appeal succeeded. The judge and court of appeal had misunderstood the . .
Cited – D and L (Minors Surrogacy), Re FD 28-Sep-2012
D_LFD2012
The children had been born in India to a surrogate mother. The biological father and his civil partner sought a parental order. The mother could not be found to give her consent. She had been provided anonymously through a clinic.
Held: The . .
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. . .
Cited – AB v CD FD 24-May-2013
The Applicant AB, a lesbian woman aged 37, applied for contact to twin boys, E and F, aged 3. In making that application, she described herself as the boys’ ‘parent’; she ws so defined on the boys’ birth certificates. For the first 17 months of . .

Lists of cited by and citing cases may be incomplete.

Children

Leading Case

Updated: 09 November 2021; Ref: scu.243431

In Re D v D (Children) (Shared Residence Orders): CA 20 Nov 2000

Three children, after their parents’ separation, spent substantial amounts of time with each, despite the acrimony between their parents and frequent court applications. The father argued that without a shared residence order he was treated as a second-class parent by authorities with whom he had to deal over matters relating to the children. The judge made a shared residence order, and the mother appealed.
Held: Earlier decisions restricting the circumstances where shared residence orders should be made may be incorrect. In this case, the children had continuing staying contact with their father. There remained many and repeated points of dispute about administering the contact, but it was clear that the mother accepted in principle that the children would be staying with their father for some of the time. In such circumstances, shared residence might well be in the interests of the children. It was not necessary to establish exceptional circumstances, or any positive benefit for the child provided it could be shown to be in the children’s best interests.

Hale LJ, Dame Elizabeth Butler-Sloss P
Times 08-Jan-2001, [2000] EWCA Civ 3009, [2001] 1 FLR 495, [2001] 1 FCR 147, [2001] Fam Law 183
Bailii
Children Act 1989 8(1)
England and Wales
Cited by:
Cited – A Father (Mr A) v A Mother (Mrs A); Their Two Children (B And C) FD 4-Feb-2004
After a divorce, the father sought a joint residence order for the two young children. The mother alleged sexually inappropriate behaviour by the father. The court found this allegation clearly untrue. The dispute was bitter and protracted. . .
Cited – In re AR (A Child: Relocation) FD 10-Jun-2010
ar_childFD2010
Both parents had parental responsibility. The French mother wished to return to live in France and to take the five year old child with her, applying to court for the appropriate order.
Held: The court pointed to the real difficulties always . .

Lists of cited by and citing cases may be incomplete.

Children

Leading Case

Updated: 09 November 2021; Ref: scu.81826

Alarape and Another v Secretary of State for the Home Department: UTIAC 10 Oct 2011

UTIAC 1. The term ‘child’ in Article 12 of Regulation (EEC) No.1612/68 [see now Article 10 Regulation (EU) No. 492/2011] (which guarantees a right of access to education) should be read to include ‘stepchild’.
2. An order for preliminary reference to the Court of Justice of the European Union is made in this case in relation to other questions.

Storey J
[2011] UKUT 413 (IAC)
Bailii
England and Wales

Immigration, Children

Updated: 09 November 2021; Ref: scu.445179

Alexander-David v London Borough of Hammersmith and Fulham: CA 1 Apr 2009

The authority was required to provide housing to the minor applicant, but she was too young to hold a legal estate. An equitable lease had been created, and she now appealed against an order for possession having broken the terms of the agreement, saying that the authority was in practice trustee for the tenant, and could not serve a notice to quit without committing a breach of trust. The agreement used was the standard tenancy agreement, and the authority did nothing to say it was not granting a full tenancy.
Held: The authority was in a position of trustee, and ‘service of notice to quit only on the minor beneficiary of the trust was not sufficient to terminate the tenancy.’

Waller, Scott Baker LJ, Sullivan LJ
[2009] EWCA Civ 259
Bailii, Times
Housing Act 1996 188 193(2), Law of Property Act 1925 1(6), Trusts of Land and Appointment of Trustees Act 1996
England and Wales
Citing:
Cited – Kingston upon Thames Royal Borough Council v Prince 1993
A minor could succeed to a secure tenancy under the 1985 Act. Hale J said: ‘A minor can hold an equitable tenancy of any property, including a council house.’ quoting the Law commission which said: ‘Moreover the statutory provisions do not restrict . .
Cited – Regina v London Borough of Tower Hamlets ex parte Von Goetz CA 8-Oct-1998
A ten year shorthold tenancy agreement which was not executed under deed constituted an equitable interest, and since more than five years remained, the tenant had sufficient interest to found a claim for a council grant for renovation and repairs. . .
Cited – Hammersmith and Fulham London Borough Council v Monk HL 5-Dec-1991
One tenant of two joint tenants of a house left and was granted a new tenancy on condition that the existing one of the house, still occupied by her former partner, was determined. She gave a notice to quit as requested, the council claimed . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
Cited – Street v Mountford HL 6-Mar-1985
When a licence is really a tenancy
The document signed by the occupier stated that she understood that she had been given a licence, and that she understood that she had not been granted a tenancy protected under the Rent Acts. Exclusive occupation was in fact granted.
Held: . .

Lists of cited by and citing cases may be incomplete.

Land, Children

Updated: 09 November 2021; Ref: scu.328885

London Borough of Hillingdon v DS and Others: FD 13 Jun 2016

This case involves the future care of two children, C and G both British citizens, who arrived at a London Airport in September 2015. They were then age 13 and 10. No adult was with them. Following initial enquiries the UK Border Agency (‘UKBA’) made a referral to the London Borough of Hillingdon (‘the LA’) who arranged for their placement with foster carers, where they remain

Theis DBE J
[2016] EWHC 1858 (Fam)
Bailii
England and Wales

Immigration, Children

Updated: 09 November 2021; Ref: scu.567906

London Borough of Hillingdon v AO: FD 23 Jan 2014

Care proceedings

[2014] EWHC 75 (Fam)
Bailii
England and Wales

Children

Updated: 09 November 2021; Ref: scu.521963

TT, Regina (on The Application of) v The Registrar General for England and Wales: FD 11 Jul 2019

Sir Andrew McFarlane, The President of the Family Division
[2019] EWHC 1823 (Fam)
Bailii
England and Wales

Children

Updated: 09 November 2021; Ref: scu.648650

AB and Others, Regina (on The Application of) v London Borough of Brent: Admn 25 Oct 2021

Three claims for judicial review concerning the Defendant local authority’s obligations to provide accommodation under section 20 of the Children Act 1989 for unaccompanied asylum seekers pending the completion of assessments of their age. In each case the Defendant declined to accommodate the Claimant under s.20 of the Children Act 1989 on the grounds that they did not appear to the local authority to require accommodation.

Mr Justice Poole
[2021] EWHC 2843 (Admin)
Bailii
Children Act 1989 20
England and Wales

Children, Immigration, Housing

Updated: 09 November 2021; Ref: scu.668929

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 – Concept of ‘rights of custody’.
A two month old baby born in England to unmarried parents and removed by her French mother to the French island of La Reunion. The English court made orders for her return four days later. But proceedings in France under the Hague Child Abduction Convention failed because the father did not have rights of custody. Was the child habitually resident in England and Wales when the orders were first made?
Held: The court applied the principle in A. the child’s age is liable to be of particular importance. Normally it is the social and family environment of the child which is fundamental in determining habitual residence. But where the child concerned is an infant: ‘. . An infant necessarily shares the social and family environment of the circle of people on whom he or she is dependent. Consequently, where . . . the infant is in fact looked after by her mother, it is necessary to assess the mother’s integration in her social and family environment. In that regard, the tests stated in the court’s case law, such as the reasons for the move by the child’s mother to another member state, the languages known to the mother or again her geographic and family origins may become relevant.’
. . And: ‘The concept of ‘habitual residence’ . . must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, where the situation concerned is that of an infant who has been staying with her mother only a few days in a member state – other than that of her habitual residence – to which she has been removed, the factors which must be taken into consideration include, first, the duration, regularity, conditions and reasons for the stay in the territory of that member state and for the mother’s move to that state and second, with particular reference to the child’s age, the mother’s geographic and family origins and the family and social connections which the mother and child have with that member state.’

A. Tizzano, P
C-497/10, [2010] EUECJ C-497/10, [2010] EUECJ C-497/10F, ECLI:EU:C:2010:829, [2011] ILPr 23, [2011] Fam Law 351, [2012] Fam 22, [2011] 1 FLR 1293, [2011] 3 WLR 1229
Bailii, Bailii
Regulation (EC) No 2201/2003
European
Cited by:
At ECJ – Mercredi v Chaffe CA 17-Mar-2011
. .
Cited – 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 . .
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 – 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 – 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 – 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 – Re B (A Child) SC 3-Feb-2016
Habitual Residence of Child not lost
(Orse In re B (A Child) (Reunite International Child Abduction Centre intervening)) The Court considered the notion of habitual residence. The British girl with same sex parents had been taken to Pakistan, and her mother here sought her return. The . .

Lists of cited by and citing cases may be incomplete.

Children

Leading Case

Updated: 02 November 2021; Ref: scu.427715

A v P (Surrogacy: Parental Order: Death of Applicant): FD 8 Jul 2011

M applied for a parental order under the 2008 Act. The child had been born through a surrogacy arrangement in India, which was lawful there, but would have been unlawful here. The clinic could not guarantee a biological relationship with the child. The father had since died of liver cancer. The court considered whether the legislation should be construed purposively to allow the application to proceed, allowing one parent to proceed where the statute explicitly required two.
Held: The application succeeded. The court was free to interporet the section so as to allow the court to be satisfied that the relevant requirements were met. Among other reasons, Article 8 rights were involved and any interference must be proportionate, and the reading would not offend any policy purpose in the legislation, but would rather clearly reflect the child’s best interests. The payments were relatively modest, they were in excess of what would be accpted her. However it remained appropriate to make the parental order.
‘The primary aim of s 54 of the HFEA 2008 is to allow an order to be made which has a transformative effect on the legal relationship between the child and the applicants. The effect of the order is that the child is treated as though born to the applicants. It has clear implications as regards the right to respect for family life under Art 8 of the European Convention. Family life exists in this case as the child has lived with both Mr and Mrs A. The child is biologically related to Mr A and perhaps Mrs A. The effect of not making an order will be an interference with that family life in that the factual relationship will not be recognised by law. The court’s responsibility to ‘guarantee not rights that are theoretical and illusory but rights that are practical and effective’ Marckx v Belgium (1979-) 2 EHRR 330, at para 31.
A further relevant consideration is that family life is not only a matter of fact and degree but also the significance of legal relationships. In this case if an order is not made there is no legal connection between the child and his deceased biological father. Protection of the right to family life pre-supposes the factual existence of family life (Pini and Bertani; Manera and Atripalidi v Romania (2005) 40 EHRR 13, [2005] 2 FLR 596, at para 143). Once that is established (and it is in this case) the state must facilitate and protect that right.
The consequences of not making an order in this case are as follows:
(i) there is no legal relationship between the child and his biological father who is also the commissioning father;
(ii) the child is denied the social and emotional benefits of recognition of that relationship;
(iii) the child may be financially disadvantaged if he is not recognised legally as the child of his father (in terms of inheritance);
(iv) the child does not have a legal reality which matches the day-to-day reality;
(v) the child is further disadvantaged by the death of his biological father.’

Theis DBE J
[2011] EWHC 1738 (Fam)
Bailii
Human Fertilisation and Embryology Act 2008 54, Law Reform (Miscellaneous Provisions) Act 1934 1(1), Human Fertilisation and Embryology Act 2008 (Parental Orders) (Consequential, Transitional and Saving Provision) Order 2010, Adoption and Children Act 2002 1, European Convention on Human Rights 8, United Nations Convention of the Rights of the Child 8
England and Wales
Citing:
Distinguished – D’Este v D’Este; D(J) v D(S) FD 1973
The husband had obtained a decree absolute of divorce against his wife. The matrimonial home had been conveyed to them jointly. He remarried and applied to the court for variation of the post-nuptial settlement. He died before the application was . .
Cited – Cases of Pini And Bertani And Manera And Atripaldi v Romania ECHR 22-Jun-2004
The making of an adoption order was sufficient to establish an Article 8 right to respect for family life notwithstanding the fact that the children had never moved to live with the adopters. Protection of the right to family life pre-supposes the . .
Cited – Re IJ (A Child) (Foreign Surrogacy Agreement Parental Order) FD 19-Apr-2011
ij_FD11
The court gave reasons for making a parental order under the 2008 Act in favour of the applicants where a child had been born under surrogacy arrangements which were lawful in the Ukraine where he was born, but would have been unlawful here because . .
Cited – Marckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
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 – In Re WM (Adoption: Non-Patrial) FD 1997
The court considered whether it was possible to make an adoption order notwithstanding that the applicants had separated as a couple.
Held: In making the order the court took into account the following: (a) the advantage to the child of . .
Cited – In re L (A Minor) (Commercial Surrogacy) FD 8-Dec-2010
The child had been born in Illinois as a result of a commercial surrogacy arrangement which would have been unlawful here. The parents applied for a parental order under the 2008 Act.
Held: The order was made, but in doing so he court had to . .
Cited – Regina v A (Complainant’s Sexual History) (No 2) HL 17-May-2001
The fact of previous consensual sex between complainant and defendant could be relevant in a trial of rape, and a refusal to allow such evidence could amount to a denial of a fair trial to a defendant. Accordingly, where the evidence was so relevant . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – M v W (declaration of parentage) FD 2007
The court made a declaration of parentage where the legal parentage differs from the biological parentage of a child, in this case, where the child was subsequently adopted but wished to have acknowledgement of their ‘natural’ or biological . .
Cited – Cases of Pini And Bertani And Manera And Atripaldi v Romania ECHR 22-Jun-2004
The making of an adoption order was sufficient to establish an Article 8 right to respect for family life notwithstanding the fact that the children had never moved to live with the adopters. Protection of the right to family life pre-supposes the . .

Cited by:
Cited – In re A (A Minor) FD 8-Jul-2011
An application was made in care proceedings for an order restricting publication of information about the family after the deaths of two siblings of the child subject to the application. The Sun and a local newspaper had already published stories . .
Cited – In re X (A Child) (Surrogacy: Time Limit) FD 3-Oct-2014
Extension of Time for Parental Order
The court considered the making of a parental order in respect of a child through surrogacy procedures outside the time limits imposed by the 2008 Act. The child had been born under Indian surrogacy laws. The commissioning parents (now the . .

Lists of cited by and citing cases may be incomplete.

Children, Human Rights

Leading Case

Updated: 02 November 2021; Ref: scu.441892

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 but who, not having been married to the mother, had at that time no rights of custody in relation to the child. So the mother’s removal of him was not wrongful within the meaning of the 1980 Convention. On 12 April 1990, however, an Australian judge conferred rights of custody on the father. The House was asked whether a child had ceased to be habitually resident in Western Australia when his mother took him away with the settled intention of living in England.
Held: Habitual residence is a question of fact, to be decided in the light of all the circumstances.
Lord Brandon of Oakbrook said: ‘In considering this issue it seems to me to be helpful to deal first with a number of preliminary points. The first point is that the expression ‘habitually resident,’ as used in article 3 of the Convention, is nowhere defined. It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case. The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B. The fourth point is that, where a child of J.’s age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers.’

Lord Brandon of Oakbrook, Lord Donaldson of Lymington MR
[1990] 2 AC 562, Times 31-Jul-1990, [2005] 3 WLR 14, [1990] 2 All ER 449
Child Abduction and Custody Act 1985
England and Wales
Citing:
Appeal from – C v C (Minor:Abduction: Rights of Custody Abroad) CA 1989
The English mother married the Australian father in Australia and bore their child their. After divorce both parents had custody with no right to remove the child. The mother brought the child to England without the father’s consent.
Held: The . .

Cited by:
Applied – 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 – Nessa v Chief Adjudication Officer HL 3-Nov-1999
Mrs. Nessa arrived at Heathrow aged 55 having lived all her life in Bangladesh. Her husband, Mr. Mobarak Ali, had lived in the United Kingdom from 1962 until he died in 1975 and when she arrived here, Mrs. Nessa had a right of abode. She hoped to . .
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 – In re K (Children) CA 27-Jul-2005
The mother appealed an order that her younger son be placed in care and freed for adoption. Hers and her children’s lives had been chaotic. Nevertheless she complained that she had not been given the opportunity to demonstrate her ability to care . .
Cited – Collins v Secretary of State for Work and Pensions CA 4-Apr-2006
The claimant had dual Irish and US nationality. He therefore also was a citizen of the EU. He complained that the British rules against payment of job seekers’ allowance were discriminatory. The matter had already been to the ECJ.
Held: The . .
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 . .
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 . .
Cited – Re B (A Child) SC 3-Feb-2016
Habitual Residence of Child not lost
(Orse In re B (A Child) (Reunite International Child Abduction Centre intervening)) The Court considered the notion of habitual residence. The British girl with same sex parents had been taken to Pakistan, and her mother here sought her return. 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 S (A Minor) (Abduction: European Convention) HL 30-Jul-1997
An illegitimate child’s habitual country of residence is determined at the date of death of his mother when he was to be removed following the death. Where the mother of an illegitimate child who is resident in England dies and the grandmother takes . .

Lists of cited by and citing cases may be incomplete.

Children, International

Leading Case

Updated: 02 November 2021; Ref: scu.182951

Re L and B (Children): SC 20 Feb 2013

The court was asked as to the extent to which a court, having once declared its decision, could later change its mind. Though this case arose with in care proceedings, the court asked it as a general question. The judge in a fact finding hearing in care proceedings had issued a provisional judgment, but after representations had delivered a judgment which differed substantially. The parties complained that there had been no satisfactory explanation for the shift.
Held: The power of a judge to reverse the decision at any time before the order was drawn up and sealed was not limited to exceptional circumstances. The overriding objective in the exercise of power was to deal with the case in question justly. The Court of Appeal had erred in requiring exceptionality for when a judge may issue a corrective judgment after changing his mind.
In this case however the first judgment had not reached such a stage of finality for the question properly to arise, since the judgment had not been sealed; the child had not moved, and a placement plan had not been implemented. The judgment as finalised had not been challenged by appeal, and therefore the Court declined to answer the question as posed.
Lady Hale said: ‘the disconcerting truth is that, as judges, we can never actually know what happened: we were not there when whatever happened did happen. We can only do our best on the balance of probabilities, after which what we decide is taken to be the fact . . If a judge in care proceedings is entitled simply to change his mind, it would destabilise the platform of established facts which it was the very purpose of the split hearing to construct; it would undermine the reports, other evidence and submissions prepared on the basis of the earlier findings; it would throw the hearing at the second stage into disarray; and it would probably result in delay.’
and ‘children cases may be different from other civil proceedings, because the consequences are so momentous for the child and for the whole family. Once made, a care order is indeed final unless and until it is discharged. When making the order, the welfare of the child is the court’s paramount consideration. The court has to get it right for the child. This is greatly helped if the judge is able to make findings as to who was responsible for any injuries which the child has suffered. It would be difficult for any judge to get his final decision right for the child, if, after careful reflection, he was no longer satisfied that his earlier findings of fact were correct.’

Lord Neuberger, President, Lady Hale, Lord Kerr, Lord Wilson, Lord Sumption
[2013] UKSC 8, [2013] 1 WLR 634, UKSC 2012/0263, [2013] WLR(D) 69, [2013] 2 All ER 294, [2013] 2 FCR 19, [2013] 2 FLR 859, [2013] Fam Law 664
Bailii, WLRD, Bailii Summary, SC Summary, SC
Children Act 1989 1(2)
England and Wales
Citing:
Cited – In re A and L (Children) (Judgment: Adequacy of Reasoning) (Practice Note) CA 27-Oct-2011
The mother appealed against a factual findings made in the course of care proceedings as to her involvement in sexual abuse of the children.
Held: The court gave guidance as to the reconsideration of a court’s decision. Munby LJ said: ‘it is . .
Appeal from – In re L and B (Children) CA 18-Jul-2012
In care proceedings, there had been protracted fact finding hearings. The judge had given a preliminary report as to her conclusions, but received a communication from counsel for the father requesting her to re-address certain aspects. She later . .
Cited – English v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .
Cited – In re St Nazaire Company CA 1879
Sir Richard Malins V-C had permitted a petition to proceed which sought to vary an earlier order which he had made and which had been unsuccessfully appealed to the Court of Appeal.
Held: He had no power to do so. Any such power had . .
Cited – In re Suffield and Watts, Ex parte Brown CA 1888
A High Court judge had made an order in bankruptcy proceedings which had the effect of varying a charging order which he had earlier made under the Solicitors Act 1860.
Held: A judge has jurisdiction to reverse his decision at any time until . .
Cited – Millensted v Grosvenor House (Park Lane) Ltd CA 1937
For the negligence of the hotel in upsetting a jug of hot water over her, the judge awarded damages of pounds 50 to the plaintiff, but on the following day, without further argument on that point, he informed the parties that his award had been . .
Cited – In re Harrison’s Share Under a Settlement CA 1955
The judge had recalled an order approving the variation of a settlement on behalf of infant, unborn and unascertained persons, because after he had pronounced it but before it was formally drawn up the House of Lords had decided that there was no . .
Cited – Murphy v Stone-Wallwork (Charlton) Ltd HL 1969
It had been assumed at the trial and in the Court of Appeal that the defendants would continue to employ the plaintiff and the assessment of future loss had been based upon that assumption. Shortly after the decision of the case by the Court of . .
Cited – In re Barrell Enterprises CA 1972
A judge has power to reconsider a judgement which he has delivered before the order consequent upon it has been sealed, but the judge should only exercise this power if there are strong reasons for doing so. When oral judgments have been given the . .
Cited – Pittalis v Sherefettin CA 1986
On the day after the judge had given judgment in a county court, he decided that he had been wrong. The judge provided the party with grounds upon which he would, if not persuaded otherwise, alter his previous judgment and order. A further hearing . .
Cited – In re Blenheim Leisure (Restaurants) Ltd (No 3) 9-Nov-1999
Neuberger J gave examples of cases where a judge might revisit his decision: a plain mistake by the court, the parties’ failure to draw to the court’s attention a plainly relevant fact or point of law and the discovery of new facts after judgment . .
Cited – Stewart v Engel, BDO Stoy Hayward CA 17-May-2000
A judge may reopen a case even after he has delivered his final judgment. A judge invited counsel to amend his pleading to incorporate an improvement, but in the face of his repeated failure to take up the invitation, entered final judgment against . .
Cited – Robinson v Fernsby, Scott-Kilvert CA 19-Dec-2003
The judge had drafted his judgment and sent the drafts to the parties for comment. He then received additional written representations from one party, from which he realised that he had made an error, and issued a corrected judgment which a . .
Cited – Abacha and Another v Compagnie Noga D’Importantion Et D’Exportation Sa QBD 3-May-2001
The court had handed to the parties a draft judgement, but one party then asked the judge to reconsider it.
Rix LJ referred to the need to balance the concern for finality against the ‘proper concern that courts should not be held by their own . .
Cited – Paulin v Paulin CA 17-Mar-2009
The court considered an application by the wife when, anticipating ancillary relief claims, the husband sought to have himself declared bankrupt, and she intervened to have the bankruptcy set aside. The husband now appealed.
Held: Wilson LJ . .

Cited by:
Cited – TZ v General Medical Council Admn 17-Apr-2015
Appeal against decision of a Fitness to Practise Panel holding that the Appellant’s fitness to practise as a medical practitioner was impaired by reason of his misconduct. It directed that his name be erased from the Medical Register under section . .
Cited – Bath v Escott ChD 11-May-2017
Judgment need not follow hearing transcript
Application to have released the audio recording of a hearing to a county court, the applicant saying that the judgment was not a true record of the hearing.
Held: Rose J explained the status of the various elements: ‘the mere fact that the . .
Cited – Sharland v Sharland SC 14-Oct-2015
The Court considered the impact of fraud upon a financial settlement agreed between divorcing parties where that agreement is later embodied in a court order? Does ‘fraud unravel all’, as is normally the case when agreements are embodied in court . .

Lists of cited by and citing cases may be incomplete.

Children, Litigation Practice

Leading Case

Updated: 02 November 2021; Ref: scu.471049

E and Others, Regina (on The Application of) v The Director of Public Prosecutions: Admn 10 Jun 2011

Judicial review was sought of a decision by the respondent to prosecute a child for her alleged sexual abuse of her younger sisters. Agencies other than the police and CPS considered that a prosecution would harm both the applicant and her sisters. It was said that the applicant had herself been groomed by an adult to commit the offences. Nevertheless the respondent had found the evidentiary and public interest tests satisfied.
Held: The request for review succeeded. It was for the DPP and not the court to decide CPS policies. The court’s duties are restricted to testing the lawfulness of a policy. It was impossible to say the policy applied was unlawful.
However the policy had not been correctly applied. The strategy group considering the case had specifically recommended against prosecution for several strong reasons: ‘the decision letter simply does not engage at all with what the report had said, in very plain and concerning terms, about the adverse effects on the welfare of all three children of the decision to prosecute’. The claim succeeded on this point.
The challenge to the decision itself as a disproportionate response failed.
Though such a case should normally be brought within the criminal system, in this case the victims themselves had applied, and since they could only apply in the Administrative Court and since the claims related to the same issues, the entire claim had been properly brought.

Munby LJ, McCombe J
[2011] EWHC 1465 (Admin), [2012] Crim LR 39, [2012] 1 Cr App R 6
Bailii
Prosecution of Offences Act 1985 10, United Nations 1989 Convention on the Rights of the Child 3.1 39, United Nations 1985 Standard Minimum Rules for the Administration of Juvenile Justice, Sexual Offences Act 2003
England and Wales
Citing:
Cited – Regina v Chief Constable of Kent ex parte L 1991
The discretion which is vested in the Crown Prosecution Service to continue criminal proceedings commenced by the police is subject to judicial review by the High Court, but only where it can be shown that the decision was made regardless of, or . .
Cited – C v Director of Public Prosecutions; Regina v Director of Public Prosecutions ex parte C 1995
A CPS decision not to prosecute was quashed because the decision-maker had failed to have regard to one of the matters identified in the relevant part of The Code for Crown Prosecutors. . .
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 – Suppiah and Others, Regina (on The Application of) v Secretary of State for The Home Department Admn 11-Jan-2011
Wyn Williams J said: ‘a policy which is in principle capable of being implemented lawfully but which nonetheless gives rise to an unacceptable risk of unlawful decision-making is itself an unlawful policy.’ . .
Cited – Piglowska v Piglowski HL 24-Jun-1999
No Presumption of House for both Parties
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
Cited – LM and Others v Regina; Regina v M(L), B(M) and G(D) CACD 21-Oct-2010
Each defendant appealed saying that being themselves the victims of people trafficking, the prosecutions had failed to take into account its obligations under the Convention.
Held: Prosecutors had ‘a three-stage exercise of judgment. The first . .
Cited – Corner House Research and Others, Regina (on the Application of) v The Serious Fraud Office HL 30-Jul-2008
SFO Director’s decisions reviewable
The director succeeded on his appeal against an order declaring unlawful his decision to discontinue investigations into allegations of bribery. The Attorney-General had supervisory duties as to the exercise of the duties by the Director. It had . .
Cited – 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 . .
Cited – C, Regina (on the Application of) v Secretary of State for Justice CA 28-Jul-2008
The court was asked as to what methods of physical restraint were proper in institutions accommodating youths in custody.
Held: The Court had been wrong not to quash the amended rules on the grounds of procedural breaches. The amended rules . .
Cited – Chief Constable of Kent County Constabulary v Baskerville CA 3-Sep-2003
The claimant sought damages for sex discrimination by fellow police officers in an action against the Chief Constable. The Chief Constable said he was liable for the unlawful acts of fellow officers.
Held: Anything done by an employee was done . .
Cited – Regina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
Cited – H and L v A City Council CA 14-Apr-2011
The court was asked when and how it is proper for a local authority to make disclosure to someone’s commercial contacts of the fact that he is a convicted sex offender.
Held: Where human rights are involved, the appropriate standard of review . .
Cited – Re E (A Child); E v Chief Constable of the Royal Ulster Constabulary and Another (Northern Ireland Human Rights Commission and others intervening) HL 12-Nov-2008
(Northern Ireland) Children had been taken to school in the face of vehement protests from Loyalists. The parents complained that the police had failed to protect them properly, since the behaviour was so bad as to amount to inhuman or degrading . .
Cited – Regina v G (Secretary of State for the Home Department intervening) HL 18-Jun-2008
The defendant was fifteen. He was convicted of statutory rape of a 13 year old girl, believing her to be 15. He appealed saying that as an offence of strict liability he had been denied a right to a fair trial, and also that the offence charged was . .
Cited – Ulke v Turkey ECHR 24-Jan-2006
A prosecution was held to breach Article 3. The applicant had been convicted for the eighth time of offences relating to his conscientious objection to military service in circumstances where he was, despite his convictions, not exempted from his . .
Cited – Regina (on the Application of Gjovalin Pepushi) v Crown Prosecution Service Admn 11-May-2004
The claimant was stopped when boarding a flight to Canada, having previously stopped in France and Italy. He bore a false Swedish passport, and intended to claim asylum in Canada. He now claimed the benefit of the article 31 (per Adimi), to defend a . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – Bensaid v The United Kingdom ECHR 6-Feb-2001
The applicant was a schizophrenic and an illegal immigrant. He claimed that his removal to Algeria would deprive him of essential medical treatment and sever ties that he had developed in the UK that were important for his well-being. He claimed . .

Cited by:
Cited – SXH v The Crown Prosecution Service (CPS) SC 11-Apr-2017
The Court was asked: ‘Does a decision by a public prosecutor to bring criminal proceedings against a person fall potentially within the scope of article 8 of the European Convention on Human Rights in circumstances where a) the prosecutor has . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Children

Updated: 02 November 2021; Ref: scu.440576

AM v Local Authority and Another; Re B-M (Care Orders): CA 16 Mar 2009

The father sought leave to appeal against care orders made in respect of his three children. The family were Pakistani Pathan muslims. There had been disputes and violence within the extended family. One family member sought protection but was now alleged herself to be responsible for threats and violence. After a fire, the children were taken into care on a without notice application. The mother later pleaded guilty to arson with intent to endanger life. The father was not implicated, but was thought to have been making attempts to find the children in breach of a court order. The children were now with a white non-muslim family, but the authority thought the children to be at serious risk if returned. Final care orders were made.
Held: Leave was refused. As to the judge’s decision: ‘The question is whether or not he exercised his judicial discretion in a manner which was properly open to him. If he did, that is the end of the matter. This court simply cannot intervene, and will not do so.’
All the complaints were about the exercise of a discretion by the judge. Though the father had not been directly involved, he had not satisfactorily explained his admitted involvement, and evidence showed that he would continue under great social pressure which might again threaten the children’s safety if they were returned to him. They would be at risk of shame from apostasy.
Wall LJ said: ‘the time has surely come to re-think the phrase ‘honour killings’. It is one thing to mock the concept of honour – as, for example, Shakespeare does through Falstaff in I Henry IV Act V, Scene i. It is quite another matter to distort the word ‘honour’ to describe what is, in reality, sordid criminal behaviour. I put on one side the murder of a baby in this case, since brother 1’s motivation for the murder is not known. However, the remorseless pursuit of the baby’s mother who, the judge found, was a woman fleeing from domestic violence; the fact that the mother of the subject children in this case sprayed the night clothes of one of them with white spirit and set fire to her house in order to implicate the intervener; the fact that the mother will not identify her brothers in the conspiracy for fear of reprisals; the fact that the grandfather appears to believe that the death of the baby was an accident and the will of God – these things have nothing to do with any concept of honour known to English law. They are, I repeat, acts of simply sordid, criminal behaviour and a refusal to acknowledge them as such. We should, accordingly, identify them as criminal acts and as nothing else.
The Muslim scholar in his evidence did not suggest that such activities can be encompassed within Islam. The most he said was that they formed part of the older generation Pathan culture. The message from this case, which must be sent out lou$d and clear, is that this court applies a tolerant and human rights based rule of law: one which, under the Act of 1989 regards parents as equals and the welfare of the child as paramount.
That is the law of England, and that is the law which applies in this case. Arson, domestic violence and potential revenge likely to result in abduction or death are criminal acts which will be treated as such.
In this case, the family may wish to reflect on the fact that it has lost five of its children: one by death, one by the legitimate flight from gender based violence inflicted on his mother, and three to the care system. None of this, in my judgment, has anything to do with any concept of ‘honour’ and all of it is manifestly contrary to the best interests of children.’

Laws LJ, Wall LJ, Lawrence Collins LJ
[2009] EWCA Civ 205, [2009] Fam Law 475, [2009] 2 FCR 505, [2009] 2 FLR 20
Bailii
Children Act 1989 31(2)
England and Wales
Citing:
Cited – Bellenden (formerly Satterthwaite) v Satterthwaite CA 1948
The court considered the role of the appeal court in assessing an order for maintenance payable for a divorced wife. The judge’s decision had been made by an exercise of his discretion.
Held: Asquith LJ said: ‘It is, of course, not enough for . .
Cited – Clarke-Hunt v Newcombe CA 1982
Cumming-Bruce LJ discussed the difficulty faced by an appeal court: ‘There was not really a right solution: there were two alternative wrong solutions. The problem for the judge was to appreciate the factors pointing in each direction and to decide . .
Cited – G v G (Minors: Custody Appeal) HL 25-Apr-1985
The House asked when a decision, on the facts, of a first instance court is so wrong as to allow it to be overturned on appeal.
Held: The epithet ‘wrong’ is to be applied to the substance of the decision made by the lower court. ‘Certainly it . .
Cited – Re A (Family Proceedings: Expert Witnesses) FD 6-Feb-2001
. .

Cited by:
Cited – Chief Constable and Another v YK and Others FD 6-Oct-2010
cc_ykFD10
The court gave directions in Forced Marriage Protection order applications. An order had been made at the request of the police on behalf of A, and the court had declined to discharge it on A’s own application.
Held: Special advocates were not . .

Lists of cited by and citing cases may be incomplete.

Children

Updated: 02 November 2021; Ref: scu.320866

In re B (A Child): SC 19 Nov 2009

The Court considered a decision granting to a father the care of his child who appeared to have become happily settled with the maternal grandmother.
Held: The grandmother’s appeal succeeded. The judge and court of appeal had misunderstood the effect of In re G, saying that it gave preference to a child living with his biological parents. The judge had allowed himself to be distracted from his central concern which was the welfare of the child, and had not given that concern the dominant position it should have occupied. The magistrates had found that they had not found compelling reasons for removing the child from the grandmother. That did not amount to them saying that such reasons were necessary.
In re G gave the final quietus to the notion that parental rights have any part to play in the assessment of where the best interests of a child lay.
Appeal courts should be careful about making orders resulting in sudden changes to care arrangements, particularly when a further appeal is indicated as likely.

Lord Hope, Deputy President, Lady Hale, Lord Collins, Lord Kerr, Lord Clarke
[2009] UKSC 5, [2009] 1 WLR 2496, [2010] 1 All ER 223, [2010] 1 FCR 1, [2010] Fam Law 143, [2010] 1 FLR 551
Times, Bailii
Children Act 1989
England and Wales
Citing:
Cited – G v G (Minors: Custody appeal) CA 1985
A court should take great care before setting aside a decision of a judge which had involved the exercise of a judicial discretion. The court considered the duty of an appellate court in a children case: ‘What this court should seek to do is to . .
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 by:
Cited – Re L (Psychologist – Duty To The Court) FD 20-Dec-2011
The court had made findings of non-accidental injury caused by the parents. A psychologist called in to assist the court was sympathetic to the parents invited the court to reconsider its findings of fact.
Held: The expert had gone beyond her . .

Lists of cited by and citing cases may be incomplete.

Children

Updated: 02 November 2021; Ref: scu.380324

G, Regina (on the Application of) v London Borough Of Southwark: HL 20 May 2009

The House was asked whether when a child of 16 or 17 who was ejected from home and presents himself to a local children’s services authority and asks to be accommodated by them under section 20 of the Children Act 1989, it is open to that authority instead to arrange for him to be accommodated by the local housing authority under the homelessness provisions of Part VII of the Housing Act 1996.
Held: The child’s appeal succeeded. It was already established that if the section 20 duty has arisen and the children’s authority have provided accommodation for the child, and they cannot ‘side-step’ the issue by claiming to have acted under some other power. The authority must act under the 1989 Act. The authority’s argument was circular.

Lord Hope of Craighead, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Mance, Lord Neuberger of Abbotsbury
[2009] UKHL 26, [2009] NPC 73, [2009] 1 WLR 1299, [2009] Fam Law 668, [2009] 3 All ER 189, [2009] BLGR 673, [2009] 2 FCR 459, [2009] 2 FLR 380, Times 04-Jun-2009
Bailii
Children Act 1989 20, Housing Act 1996
England and Wales
Citing:
Cited – Southwark, London Borough of v D CA 7-Mar-2007
The social worker arranged for D, unable to live with her father because he was violent towards her, to live with his fomer partner. The court was asked whether the local authority had simply facilitated a private fostering arrangement, in which . .
Appeal from – G, Regina (on the Application of) v London Borough of Southwark CA 29-Jul-2008
. .
Cited – M, Regina (on the Application of) v London Borough of Hammersmith and Fulham HL 27-Feb-2008
M, a girl aged 16 had become estranged from her mother, and sought housing assistance. She was not referred to the authority’s children’s services, and was not housed. The House examined the duties of local authorities under the section towards . .
Cited – L, Regina (on the Application of) v Nottinghamshire County Council Admn 26-Sep-2007
A social worker arranged for L, a seriously troubled young person who had been evicted from her mother’s home, to live for a few days in an hotel.
Held: As she had previously been looked after by the local authority for some time, this would . .
Cited – S, Regina (on the Application of) v London Borough of Sutton CA 26-Jul-2007
The local authority owed the section 20(1) duty towards a 17 year old girl who was about to be released from a Secure Training Centre. It argued however that the duty no longer applied because she had agreed to go to a hostel for homeless women . .
Cited – H and others v London Borough of Wandsworth and others Admn 23-Apr-2007
In three linked cases, unaccompanied asylum-seeking children had had assistance with housing from the local social services authorities. They claimed entitlement to support as former relevant children under section 20. The local authorities argued . .
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 . .
Cited – Liverpool City Council, Regina (on the Application of) v London Borough of Hillingdon and Another CA 10-Feb-2009
The applicant asylum-seeker had arrived in Hillingdon and claimed that he required assistance, that he was a child, and that he wanted to go to Liverpool. Hillingdon had assisted him to do so. Liverpool now appealed against a finding that it was . .
Cited – A, Regina (on the Application of) v Coventry City Council Admn 22-Jan-2009
. .
Cited – S, Regina (on the Application of) v London Borough of Sutton Admn 18-May-2007
Application for assistance in providing accomodation to allow early release from prison. . .

Cited by:
Cited – A, Regina (on the Application of) v London Borough of Croydon SC 26-Nov-2009
The applicants sought asylum, and, saying that they were children under eighteen, sought also the assistance of the local authority. Social workers judged them to be over eighteen and assistance was declined.
Held: The claimants’ appeals . .

Lists of cited by and citing cases may be incomplete.

Children, Housing, Local Government

Updated: 02 November 2021; Ref: scu.346222

Regina (P) v Secretary of State for the Home Department and Another; Regina (Q and Another) v Same: CA 20 Jul 2001

The court was asked as to the separation on sentence of a mother from a very young child.
Held: A sentencing court is bound by section 6(1) of the Human Rights Act 1998 to have regard for the provisions of the Convention when sentencing. Whilst the prison service was entitled to have a policy that children should not in general stay with their mothers in prison after the child reaches eighteen months, it was not permissible for that policy to be inflexible or to be applied inflexibly. The overriding aim of the policy was the welfare of the child, and that required allowance for the circumstances such as potentially catastrophic effect of separation, the potentially unsatisfactory alternative care arrangements. The right to family life must also now be respected.

L Phillips of Worth Matravers, MR, Brooke, Hale LJJ
Times 01-Aug-2001, Gazette 06-Sep-2001, [2001] EWCA Civ 1151, [2001] 2 FLR 1122, [2001] UKHRR 1035, [2001] 1 WLR 2002, [2001] 3 FCR 416, [2001] Prison LR 297, [2001] Fam Law 803
Bailii
Prison Service Order No 4801, European Convention on Human Rights Art 8.2, Human Rights Act 1998 691)
England and Wales
Cited by:
Cited – Regina v Qazi and Another CACD 4-Nov-2010
The defendant appealed against sentence, saying that given his serious medical condition, any imprisonment would threaten his human rights.
Held: The court set out the law. A court imposing a sentence should not concern itself with the . .

Lists of cited by and citing cases may be incomplete.

Prisons, Children, Human Rights, Family, Human Rights

Leading Case

Updated: 02 November 2021; Ref: scu.136152

Re A (Letter To A Young Person): FC 26 Jul 2017

A judge’s letter to a 14 year old boy

A, a 14 year old boy, said that he wanted to go live with his father in Scandanavia and so applied. The court set arrangements so that he should be heard but in a way which was not distressing, and gave its judgment by way of a letter to the boy.

Peter Jackson J
[2017] EWFC 48
Bailii
England and Wales

Children

Updated: 02 November 2021; Ref: scu.591407

Cunningham, Regina (on The Application of) v Hertfordshire County Council and Another: CA 11 Nov 2016

Whether child should be seen to b ‘looked after’

Appeal from an order dismissing the appellant’s claim for judicial review, expressed as a challenge to the failure of Hertfordshire to provide her with support for the care of her grandson who, it was suggested, was a ‘looked after child’ for the purposes of section 20 to 22D of the 1989 Ac. A necessary stepping stone to that conclusion was that it should have appeared to Hertfordshire for the purposes of section 20 of the 1989 Act, that R required accommodation because his mother was no longer able to provide him with it. Had Hertfordshire come to that conclusion and arranged accommodation for him, then after 24 hours R would have become a ‘looked after child’ with the consequence that various obligations upon Hertfordshire would have arisen, including the provision of financial support.
Held: The obligation to provide the support arose only upon the Local Authority seeing that it appeared to them that the child required accomodation. Such an assessment was acutely fact sensitive, and required an established error of public law for a challenge.
A child was not in such need of support only on the basis that accomodation offered was only temporary or stopgap

Black, Burnett LJJ
[2016] EWCA Civ 1108, [2016] WLR(D) 595
Bailii, WLRD
Children Act 1989 20 21 22
England and Wales

Children, Local Government

Updated: 02 November 2021; Ref: scu.571221

In re C (a Child): CA 11 Oct 2012

Application for permission to appeal out of time

Munby LJ
[2012] EWCA Civ 1369
Bailii
England and Wales

Children

Updated: 02 November 2021; Ref: scu.525977

Re L (Care: Assessment: Fair Trial): FD 2002

The court emphasised the need, in the interests not merely of the parent but also of the child, of a transparently fair and open procedure at all stages of the care process, including the making of documents openly available to parents.
Munby J said: ‘it must never be forgotten that, with the state’s abandonment of the right to impose capital sentences, orders of the kind which judges of this Division are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make. It is a terrible thing to say to any parent – particularly, perhaps, to a mother – that he or she is to lose their child for ever.’ and ‘The local authority should at an early stage of the proceedings make full and frank disclosure to the other parties of all key documents in its possession or available to it . . Early provision should then be afforded for inspection of any of these documents. Any objection to the disclosure or inspection of any document should be notified to the parties at the earliest possible stage in the proceedings and raised with the court by the local authority without delay.’

Munby J
[2002] 2 FLR 730, [2002] EWHC 1379 (Fam)
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 – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
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 – Durham County Council v Dunn CA 13-Dec-2012
The claimant wished to begin a claim alleging historic sexual abuse while he had been at an institution run by the defendants. The claimant sought pre-trial disclosure of various documents and the court now considered the principle applicable, and . .

Lists of cited by and citing cases may be incomplete.

Children, Local Government

Leading Case

Updated: 02 November 2021; Ref: scu.194861

Orchard v Lee: CA 3 Apr 2009

The claimant appealed rejection of her claim for personal injuries. She was supervising a school playground, and was injured by a 13 year old child running backwards into her. She claimed against the boy. The judge found it to be mere horseplay.
Held: ‘for a child to be held culpable the conduct must be careless to a very high degree and where a child of 13 is partaking in a game within a play area, not breaking any rules, and is not acting to any significant degree beyond the norms of that game, he or she will not be held culpable.’ and ‘It is not in issue that SL owed a duty of care. But if there is to be found a breach of that duty of care it would have to be established that SL, a 13 year old, was running about and playing tag in a way which was to a significant degree outside the norm for 13 year olds. ‘

Waller, Rimer, Aikens LJJ
[2009] EWCA Civ 295
Bailii, Times
England and Wales
Citing:
Cited – McHale v Watson 7-Mar-1966
(High Court of Australia) A girl was injured playing tag with her friends at school. A boy threw a sharpened object which bounced off a post and hit her. The level of duty of care owed by a child was questioned: ‘The standard of care being . .
Cited – Mullin v Richards and Birmingham City Council CA 6-Nov-1997
Two 15 year old schoolfriends were playing with rulers when one shattered and a fragment injured the eye of the other. She claimed negligence in the school. She appealed a finding that she was herself fifty per cent responsible.
Held: Although . .
Cited – Blake v Galloway CA 25-Jun-2004
The claimant was injured whilst playing about with other members of his band throwing sticks at each other. The defendant appealed against a denial of his defence on non fit injuria.
Held: The horseplay in which the five youths were engaged . .
Cited – McLellan v Bracknell Forest Borough Council; Reigate Borough Council v Benfield and Another CA 16-Oct-2001
The tenant was issued with a notice to quit for unpaid rent, within the first year, during an ‘introductory tenancy.’ She sought judicial review on the basis that the reduced security of tenure infringed her human rights.
Held: Review was . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Negligence, Children

Updated: 02 November 2021; Ref: scu.329543

In re A (A Minor): FD 8 Jul 2011

An application was made in care proceedings for an order restricting publication of information about the family after the deaths of two siblings of the child subject to the application. The Sun and a local newspaper had already published stories which it was said were in breach of the order, and attempts were made to speak to family members.
Held: The existing order was varied. Baker J said: ‘What is the impact of the fact that a considerable amount of this information has already been published? A distinction can be drawn between, on the one hand, the information that children known to social services have died and that their mother has been arrested in connection with their deaths, and, on the other hand, intrusive reporting into the circumstances within the family home. The fact of the children’s deaths, that the mother has been arrested, and the involvement of social services is information already widely reported nationally and locally, and to my mind this is a factor against the injunction now sought on behalf of the mother. These facts are widely known and the likely effect of any repetition on the mother’s article 8 rights is to my mind limited so that the case for restraining republication is less strong. On the other hand, detailed accounts of life in the home have amounted to significant intrusion. To my mind, there is a stronger argument that re-publication of those details would have a significant impact on family members and would therefore amount to an interference with article 8 rights.’

Baker J
[2011] EWHC 1764 (Fam)
Bailii
Children Act 1989, European Convention on Human Rights 8 10
England and Wales
Citing:
Cited – D’Este v D’Este; D(J) v D(S) FD 1973
The husband had obtained a decree absolute of divorce against his wife. The matrimonial home had been conveyed to them jointly. He remarried and applied to the court for variation of the post-nuptial settlement. He died before the application was . .
Cited – Marckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
Cited – In re Z (A Minor) (Identification: Restrictions on Publication) CA 31-Jul-1995
The court was asked whether the daughter of Cecil Parkinson and Sarah Keays should be permitted to take part in a television programme about the specialist help she was receiving for her special educational needs.
Held: The court refused to . .
Cited – A v P (Surrogacy: Parental Order: Death of Applicant) FD 8-Jul-2011
M applied for a parental order under the 2008 Act. The child had been born through a surrogacy arrangement in India, which was lawful there, but would have been unlawful here. The clinic could not guarantee a biological relationship with the child. . .
Cited – Re Z (A Minor) (Freedom of publication) 1996
. .
Cited – In Re WM (Adoption: Non-Patrial) FD 1997
The court considered whether it was possible to make an adoption order notwithstanding that the applicants had separated as a couple.
Held: In making the order the court took into account the following: (a) the advantage to the child of . .
Cited – OPQ v BJM and CJM QBD 20-Apr-2011
The defendant was said to have attempted to blackmail the claimant by threatening to publish intimate photographs. The court had granted an injunction restraining publication and identification of the parties.
Held: As to the remedy of an . .
Cited – In re L (A Minor) (Commercial Surrogacy) FD 8-Dec-2010
The child had been born in Illinois as a result of a commercial surrogacy arrangement which would have been unlawful here. The parents applied for a parental order under the 2008 Act.
Held: The order was made, but in doing so he court had to . .
Cited – A Local Authority v W L W T and R; In re W (Children) (Identification: Restrictions on Publication) FD 14-Jul-2005
An application was made by a local authority to restrict publication of the name of a defendant in criminal proceedings in order to protect children in their care. The mother was accused of having assaulted the second respondent by knowingly . .
Cited – Venables and Thompson v News Group Newspapers and others QBD 8-Jan-2001
Where it was necessary to protect life, an order could be made to protect the privacy of individuals, by disallowing publication of any material which might identify them. Two youths had been convicted of a notorious murder when they were ten, and . .
Cited – Bensaid v The United Kingdom ECHR 6-Feb-2001
The applicant was a schizophrenic and an illegal immigrant. He claimed that his removal to Algeria would deprive him of essential medical treatment and sever ties that he had developed in the UK that were important for his well-being. He claimed . .
Cited – Regina v A (Joinder of Appropriate Minister) HL 21-Mar-2001
An appeal was to be heard by the committee in which it was expected that a declaration of incompatibility would be considered in respect of legislation restricting the raising by a defendant on a charge of rape of the complainant’s sexual history. . .
Cited – Goodwin v NGN Ltd and VBN QBD 9-Jun-2011
goodwin_ngn4QBD11
The claimant had obtained an injunction preventing publication of his name and that of his coworker with whom he had had an affair. After widespread publication of his name elsewhere, the defendant had secured the discharge of the order as regards . .
Cited – Regina v A (Complainant’s Sexual History) (No 2) HL 17-May-2001
The fact of previous consensual sex between complainant and defendant could be relevant in a trial of rape, and a refusal to allow such evidence could amount to a denial of a fair trial to a defendant. Accordingly, where the evidence was so relevant . .
Cited – Carr v News Group Newspapers Ltd and Others QBD 24-Feb-2005
The claimant with a notorious criminal past sought an injuntion to protect her new identity.
Held: The order was made. . .
Cited – X, A Woman Formerly Known As Mary Bell v Stephen O’Brien, News Group Newspapers Ltd MGN Ltd QBD 21-May-2003
An injunction effective against the world, was granted to restrain any act to identify the claimant in the media, including the Internet. She had been convicted of murder when a child, and had since had a child herself. An order had been granted . .
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 – F v Newsquest Limited and others 1-Apr-2004
The court referred to the need for newspapers to be able to put a face or identity to a story. There was a ‘clear and compelling interest’ of the media and the public in the publication of the photograph of a person convicted of a serious crime so . .
Cited – McKennitt and others v Ash and Another QBD 21-Dec-2005
The claimant sought to restrain publication by the defendant of a book recounting very personal events in her life. She claimed privacy and a right of confidence. The defendant argued that there was a public interest in the disclosures.
Held: . .
Cited – CTB v News Group Newspapers Ltd and Thomas (2) QBD 23-May-2011
ctb_ngn2QBD11
The claimant had obtained a privacy injunction, but the name of the claimant had nevertheless been widey distributed on the Internet. The defendant newspaper now sought to vary the terms. The second defendant did not oppose the injunction. . .
Cited – Initial Services Ltd v Putterill CA 1967
The plaintiff’s sales manager resigned, but took with him confidential documents which he gave to a newspaper. The defendant sought to justify this, saying that the company had failed to register agreements it should have done under the Act.
Cited – British Broadcasting Company v Rochdale Metropolitan Borough Council and X and Y FD 24-Nov-2005
Application was made by the claimant for orders discharging an order made in 1991 to protect the identity of children and social workers embroiled in allegations of satanic sex abuse. The defendant opposed disclosure of the names of two social . .
Cited – JIH v News Group Newspapers Ltd QBD 5-Nov-2010
The court was asked as to the circumstances under which the identity of a claimant should be protected in an action where he sought to restrain the publication of private information about him.
Held: Tugendhat J accepted the proposition . .
Cited – In re Stedman FD 18-May-2009
An application was made for the continuation and extension of a reporting restriction order. The parents of the children were themselves under age, and there had been intense media interest.
Held: A privacy injunction was refused even after an . .
Cited – Terry (previously LNS) v Persons Unknown QBD 29-Jan-2010
The claimant (then known as LNS) had obtained an injunction to restrain publication of private materials.
Held: There was insufficient material to found an action in confidence or privacy. An applicant was unlikely to succeed either at an . .
Cited – In re Guardian News and Media Ltd and Others; HM Treasury v Ahmed and Others SC 27-Jan-2010
Proceedings had been brought to challenge the validity of Orders in Council which had frozen the assets of the claimants in those proceedings. Ancillary orders were made and confirmed requiring them not to be identified. As the cases came to the . .
Cited – Pickering v Liverpool Post HL 1991
Lord Bridge said: ‘It is not, of course, possible to determine in advance what kind of public comment on pending proceedings would create a substantial risk on the course of justice will be seriously impeded or prejudiced. That is one reason why it . .

Lists of cited by and citing cases may be incomplete.

Children, Media, Human Rights

Updated: 02 November 2021; Ref: scu.441893

MZ v RZ (Hague Convention 1996 HABITUAL Residence Inward Return): FD 6 Sep 2021

[2021] EWHC 2490 (Fam)
Bailii
England and Wales

Children

Updated: 02 November 2021; Ref: scu.668229

In re C (A Child): CA 29 Jul 2016

Publication of care hearings

The court was asked whether a judgment in earlier care proceedings held in private should now be made public. The father had since been convicted of the murder of C. Reporting restrictions were imposed pending his trial, and immediately after the trial order had been continued to protect his right to a fair trial. He had said that he intended to appeal. The media organisations now appealed against the latter order.
Held: The redacted judgment should be published.
Lord Dyson MR said that in terms of jurors remembering publicity about a trial or the people involved in it, the ‘staying power of news reports is very limited’.

Lord Dyson MR, McFarlane, Burnett LJJ
[2016] EWCA Civ 798, B4/2016/2680, [2016] Fam Law 1223, [2017] 2 FLR 105, [2016] 1 WLR 5204, [2016] WLR(D) 448
Bailii, Judiciary, WLTD
England and Wales
Citing:
Judgment now published – London Borough of Sutton v Gray and Butler FD 30-Jun-2016
(Redacted) The Borough sought a care order.
Held: The father was respnsible for the death of the sister, and the surviving child was in need of the kind of care which would not lead to her following her mother’s path. . .

Cited by:
Cited – Sarker, Regina v CACD 13-Jun-2018
The defendant was to face trial under the 2006 Act. He applied for an order under section 4(2) of the 1981 Act postponing the reporting of the proceedings on the grounds that knowledge by the jury of the inquiry and police investigation would be . .

Lists of cited by and citing cases may be incomplete.

Children, Media

Updated: 01 November 2021; Ref: scu.567802

Re I (Human Fertilisation and Embryology Act 2008): FD 12 Apr 2016

The court considered questions arising on applications for use of the equitable doctrine of rectification in cases of mistake at IVF Clinics.

Sir James Munby
[2016] EWHC 791 (Fam), [2016] Fam Law 678, [2017] 1 FLR 998
Bailii, Judiciary
Human Fertilisation and Embryology Act 2008
England and Wales

Health Professions, Children, Equity

Leading Case

Updated: 01 November 2021; Ref: scu.562140

G v G (Minors: Custody Appeal): HL 25 Apr 1985

The House asked when a decision, on the facts, of a first instance court is so wrong as to allow it to be overturned on appeal.
Held: The epithet ‘wrong’ is to be applied to the substance of the decision made by the lower court. ‘Certainly it would not be useful to inquire whether different shades of meaning are intended to be conveyed by words such as ‘blatant error’ used by the President in the present case, and words such as ‘clearly wrong’, ‘plainly wrong’, or simply ‘wrong’ used by other judges in other cases. All these various expressions were used in order to emphasise the point that the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible’.
Lord Fraser of Tullybelton said: ‘The reason for the limited role of The Court of Appeal in custody cases is not that appeals in such cases are subject to any special rules, but that there are often two or more possible decisions, any one of which might reasonably be thought to be the best, and any one of which therefore a judge may make without being held to be wrong. In such cases, therefore, the judge has a discretion and they are cases to which the observations of Asquith LJ, as he then was, in Bellenden (Formerly Sattherthwaite) v Satterthwaite [1948] 1 All ER 343 apply.’ and
After quoting Asquith LJ, Lord Fraser continued: ‘I would only add that, in cases dealing with the custody of children, the desirability of putting an end to litigation, which applies to all classes of case, is particularly strong because the longer legal proceedings last, the more are the children, whose welfare is at stake, likely to be disturbed by the uncertainty.
Nevertheless, there will be some cases in which the Court of Appeal decides that the judge of first instance has come to the wrong conclusion. In such cases it is the duty of the Court of Appeal to substitute its own decision for that of the judge.’

Lord Fraser of Tullybelton, Lord Elwyn-Jones, Lord Diplock, Lord Edmund-Davies, Lord Bridge of Harwich
[1985] 1 WLR 647, [1985] 1 WLR 647, [1985] 2 All ER 225, [1985] UKHL 13, [1985] FLR 894
Bailii
England and Wales
Citing:
Cited – In re F (a Minor) (Wardship: Appeal) CA 1976
Bridge LJ said: ‘The judge was exercising a discretion. He saw and heard the witnesses. It is impossible to say that he considered any irrelevant matter, erred in law or applied any wrong principle. On the view I take, his error was in the balancing . .
Approved – Bellenden (formerly Satterthwaite) v Satterthwaite CA 1948
The court considered the role of the appeal court in assessing an order for maintenance payable for a divorced wife. The judge’s decision had been made by an exercise of his discretion.
Held: Asquith LJ said: ‘It is, of course, not enough for . .
Approved – Clarke-Hunt v Newcombe CA 1982
Cumming-Bruce LJ discussed the difficulty faced by an appeal court: ‘There was not really a right solution: there were two alternative wrong solutions. The problem for the judge was to appreciate the factors pointing in each direction and to decide . .
Appeal from – G v G (Minors: Custody appeal) CA 1985
A court should take great care before setting aside a decision of a judge which had involved the exercise of a judicial discretion. The court considered the duty of an appellate court in a children case: ‘What this court should seek to do is to . .

Cited by:
Cited – In re B (a Minor) (Adoption: Natural parent) HL 17-Dec-2001
The parents of a child were not married. The mother stated and had maintained her disinterest in the child from birth, and the father had been caring for the child. The local authority looked to find a fostering place with a view to adoption. The . .
Approved – Tanfern Ltd v Cameron-MacDonald, Cameron-MacDonald CA 12-May-2000
The court gave detailed guidance on the application of the new procedures on civil appeals in private law cases introduced on May 2. Appeals from a County Court District Judge’s final decision in a multi-track case could now go straight to the Court . .
Cited – Piglowska v Piglowski HL 24-Jun-1999
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
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 – Mclouglin v Jones and others CA 27-May-2005
Application for permission to appeal against striking out of part of damages schedule.
Held: Limited leave given. . .
Cited – Agulian and Another v Cyganik CA 24-Feb-2006
The question was whether the deceased had lost his domicile of birth and acquired one of choice when living and working in the UK for 43 years. He had retained land in Cyprus, but lived here.
Held: He had retained his domicile of birth: . .
Cited – In Re P (Minors) (Contact) CA 15-May-1996
The father appealed an order refusing him direct contact with the child. The judge had made the order because he considered that the mother’s hostility to contact made it likely that her health would suffer if contact was ordered, and that the . .
Cited – Down Lisburn Health and Social Services Trust and Another v H and Another HL 12-Jul-2006
The House considered when adoption law would allow an adoption without the consent of the birth parent where there had been some continuing contact between that parent and the child.
Held: (Baroness Hale dissenting) The appeal against the . .
Cited – Hill and Another v Haines ChD 3-May-2007
The husband and wife had separated and divorced. In ancillary proceedings, the family home had been transferred to the wife under a court order. The judge had noted that the husband was hopelessly insolvent, and he was made bankrupt some time later . .
Cited – AM v Local Authority and Another; Re B-M (Care Orders) CA 16-Mar-2009
The father sought leave to appeal against care orders made in respect of his three children. The family were Pakistani Pathan muslims. There had been disputes and violence within the extended family. One family member sought protection but was now . .
Cited – Brady v Norman QBD 26-May-2010
The claimant appealed against refusal of the Master to extend the 12 month limitation period in his proposed defamation claim. The allegations related to a dispute at an Aslef barbecue, and later of forgery. The claimant was a former General . .
Cited – White v Southampton University Hospitals NHS Trust and Another QBD 1-Apr-2011
The claimant doctor sued in defamation for letters written by the defendants to the Fitness to Practice Directorate. She now sought to appeal against a finding that she could not rely upon one letter which had come to her attention through . .
Cited – C v V CoP 25-Nov-2008
The court heard an appeal objecting to the appointment of a sibling as Deputy for the parents now lacking capacity. Both daughters had at one time been appointed under Enduring Powers of Attorney, acting jointly, but the daughters became estranged. . .
Cited – Jackson v Murray and Another SC 18-Feb-2015
Child not entirely free of responsibility
The claimant child, left a school bus and stepped out from behind it into the path of the respondent’s car. She appealed against a finding of 70% contributory negligence.
Held: Her appeal succeeded (Majority, Lord Hodge and Lord Wilson . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Children

Leading Case

Updated: 01 November 2021; Ref: scu.231167

In re E (A Child): CA 19 May 2016

‘Appeal against findings of sexual abuse made against a father and his teenage son in the course of care proceedings relating to that boy and separate care proceedings relating to the three children of a different family. In addition to a detailed challenge to the judge’s analysis of the factual evidence in this particular case, the appeal raises the following more general issues:
a) The approach to determining whether a child witness should be called in the course of family proceedings following the Supreme Court decision in Re W (Children) (Family Proceedings: Evidence) [2010] UKSC 12; [2010] 1 WLR 701.
b) The weight to be given to defects in both the process and the content of ABE interviews conducted with child victims and witnesses (‘Achieving Best Evidence in Criminal Proceedings’ – Ministry of Justice March 2011).
c) The approach to be taken by those representing a child in family proceedings where that child is himself accused of being the perpetrator of abuse.
d) The basic requirements of due process necessary to meet the Article 6 fair trial rights of such a child during the investigation and any subsequent Family Court proceedings where he or she might properly be regarded as either a perpetrator or a victim or both.’

McFarlane, Glsoer, Macur LJJ
[2016] EWCA Civ 473, [2016] WLR(D) 270, [2016] 4 WLR 105
Bailii, WLRD
England and Wales

Children, Litigation Practice

Updated: 02 November 2021; Ref: scu.564447

Y (Children In Care: Change of Nationality): CA 6 Aug 2020

Proceedings for LA to change child’s nationality

Two children taken into care were of Indian nationality, though born in the UK. The LA wanted to apply for UK nationality so as to regularise their immigration status. The parents objected. The parents now appealed from rejection of their requests for the discharge of the long standing care orders.
Held: The appeals failed. Section 33 of the 1989 Act did not give power to the LA to apply for UK citizenship. Incidents of this sort might arise regularly but in different factual circumstances. An LA should apply to the High Court requesting it to exercise its inherent jurisdiction. Such a decision was fundamental to a child’s future and required the most careful consideration. Parents in such situations might have additional difficulties in challenging a decision made by the LA, and the children should also have a clear voice.
The court below should have said that this decision needed fresh proceedings in a request for the Court to exercise its inherent jurisdiction.

McCombe, King, Peter Jackson LJJ
[2020] EWCA Civ 1038, [2020] WLR(D) 460
Bailii, WLRD
Children Act 1989 33
England and Wales

Children, Immigration

Updated: 01 November 2021; Ref: scu.653067

In re G (A Child) (Special guardianship order: Application to discharge): CA 10 Feb 2010

The mother had failed in her application to have set aside a special guardianship order made in favour of the child’s grandmother. The judge had held that the change in her circumstances was not significant.
Held: Her appeal succeeded. The statutes contained inconsistencies as to the levels of change required to support an application, and the court should apply the standards identified in In re M. That did not require the change in circumstances to be significant, but these were in any event.

Ward LJ, Wilson LJ
[2010] EWCA Civ 300, [2010] Fam Law 598, [2010] 2 FLR 696
Bailii, Times
Children Act 1989 14D(5)
England and Wales
Citing:
Cited – Warwickshire County Council v M and others CA 1-Nov-2007
The judge had granted the mother leave to apply for revocation of placement orders. The authority appealed. The mother argued that once a change of circumstances was shown, the court was obliged to give leave to apply.
Held: The judge was not . .
Cited – Re A (A Minor), Re TL v Coventry City Council; CC v A, by her Children’s Guardian CA 21-Dec-2007
The foster mother of a baby promptly indicated a wish to adopt her. Following four months of assessment Coventry informed her that, for reasons which she wished to challenge, her adoption of the baby would be unsuitable. Three days prior to so . .

Lists of cited by and citing cases may be incomplete.

Children

Updated: 01 November 2021; Ref: scu.406534

Paulik v Slovakia: ECHR 10 Oct 2006

Sir Nicolas Bratza, P
10699/05, [2006] ECHR 851, [2006] 3 FCR 323, (2008) 46 EHRR 10, [2007] 1 FLR 1090, [2007] Fam Law 22
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Cited – Stott, Regina (on The Application of) v Secretary of State for Justice SC 28-Nov-2018
Extended Determinate Sentence created Other Status
The prisoner was subject to an extended determinate sentence (21 years plus 4) for 10 offences of rape. He complained that as such he would only be eligible for parole after serving two thirds of his sentence rather than one third, and said that . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Children

Updated: 01 November 2021; Ref: scu.246597

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 responded that he had acted only to follow the edicts of the Beth Din.
Held: Acquiescence in abduction is dependant upon the subjective intention of the wronged party.
Lord Browne-Wilkinson said: ‘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.
The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent. The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law. There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced. ‘ The burden of proving that the plaintiff in Convention proceedings has acquiesced in the wrongful removal of his or her child lies upon the abducting parent.
Lord Browne Wilkinson said: ‘An international Convention, expressed in different languages and intended to apply to a wide range of differing legal systems, cannot be construed differently in different jurisdictions. The Convention must have the same meaning and effect under the laws of all contracting states’ and English concepts and English law rules about the meaning of acquiescence could have no direct relevance to the interpretation of the Convention.

Lord Browne-Wilkinson, Lord Jauncey of Tullichettle, Lord Mustill, Lord Clyde
Times 17-Apr-1997, [1998] AC 72, [1997] 1 FLR 872, [1997] 2 FCR 257, [1997] Fam Law 468, [1997] 2 All ER 225
House of Lords, Bailii
Hague Convention on the Civil Aspects of International Child Abduction, Child Abduction and Custody Act 1985
England and Wales
Citing:
Appeal from – 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 – In Re H (Minors) (Abduction: Custody Rights) HL 1991
The House addressed the question whether wrongful removal and wrongful retention were mutually exclusive concepts. The issue arose in the context of the commencement date for the 1985 Act as between the two States involved.
Held: For the . .
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 – 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 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 – 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 – AF v M B-F FD 22-Feb-2008
The father sought the return of the two children to Poland after they had been brought to England by the mother. She said that she had come to seek work as a dentist, and had been unable to support the family in Poland. She said that her Polish . .

Lists of cited by and citing cases may be incomplete.

Children

Leading Case

Updated: 01 November 2021; Ref: scu.81103

In Re H (Children) (Custody Rights: Jurisdiction): CA 29 Jul 2014

The father appealed against refusal of an order requiring the mother of his children to return them to this country from Bangladesh.
Held: The appeal failed. There is no longer any rule that where two parents had parental responsibility for a child, neither could unilaterally change the child’s habitual residence. The proper approach was a factual inquiry particular to the circumstances of each case. Where the issue related to removal of children to a country outside the EU, jurisdiction to determine an application for their return remained with the courts of England and Wales.

Richards, Black, Vos LJJ
[2014] EWCA Civ 1101, [2014] WLR(D) 343, [2015] 1 FLR 1132, [2014] 3 FCR 405, [2015] 1 WLR 863, [2014] Fam Law 1523
Bailii, WLRD
England and Wales
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 . .

Lists of cited by and citing cases may be incomplete.

Children, International

Leading Case

Updated: 01 November 2021; Ref: scu.535399

MM, Regina (on the Application of) v London Borough of Lewisham: Admn 6 Mar 2009

The court considered the extent of an Authority’s duties when a young woman (17) came to its attention under section 17 of the 1989 Act. The claimant was fleeing the domestic violence of her partner. The authority had said that she should seek help not from Social Services but instead through family services or victim support.
Held: The first response was not adequate: ‘The summary consideration given to the referral fell far below the standard required by law. The fact that the claimant had been in the refuge for some 4 months should have given rise to concern. The Social Services authority must have been aware of the undesirability of a 17 year old being housed with adults in temporary accommodation for victims of domestic violence for such an extended period of time. It is difficult to see how any Social Services authority could have concluded that the claimant’s housing needs had been properly met for some 4 months, nor how it could have concluded that suitable accommodation could be provided in a hostel. The Social Services authority paid no regard to the fact that it was the worker at the refuge who had applied for Social Services to support the claimant because she was ‘vulnerable and lacked ‘life skills”. Had the refuge considered that the claimant’s needs could have been met simply by a housing application under Part VII Housing Act 1996, it could have applied to the housing department.’ Later decisions were also flawed.

Sir George Newman
[2009] EWHC 416 (Admin)
Bailii
Children Act 1989 17
England and Wales
Citing:
Cited – M, Regina (on the Application of) v Gateshead Council CA 14-Mar-2006
The applicant had left care, but still received assistance. She was arrested and the police asked the attending social worker to arrange secure accommodation overnight. The respondent refused. The court was asked what duty (if any) is owed by local . .

Lists of cited by and citing cases may be incomplete.

Children, Local Government

Updated: 01 November 2021; Ref: scu.316593

A, Regina (on the Application of) v London Borough of Croydon: SC 26 Nov 2009

The applicants sought asylum, and, saying that they were children under eighteen, sought also the assistance of the local authority. Social workers judged them to be over eighteen and assistance was declined.
Held: The claimants’ appeals succeeded. The actual age of a party is an objective question of fact, and as such was for the court to decide. The court could not give priority to the judgement of the social workers involved. The 1989 Act left certain decisions within the discretion of the local authority, but did not extend that to deciding whether a claimant was a child. The definition was used throughout the Act, and ‘the question whether a person is a ‘child’ [has] a right or a wrong answer. It may be difficult to determine what that answer is. The decision-makers may have to do their best on the basis of less than perfect or conclusive evidence. But that is true of many questions of fact which regularly come before the courts. That does not prevent them from being questions for the courts rather than for other kinds of decision makers.’
However (Lord Hope) ‘the duty of the local authority under section 20(1) of the 1989 Act to provide accommodation for any child in need within their area who appears to them to require accommodation as a result of the factors mentioned in that subsection does not give rise to a ‘civil right’ within the meaning of article 6(1) of the Convention.’
Lord Hope said: ‘the question whether or not a person is a child for the purposes of section 20 of the 1989 Act is a question of fact which must ultimately be decided by the court.’

Lord Hope of Craighead, Deputy President, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Neuberger of Abbotsbury
Times 30-Nov-2009, [2009] UKSC 8, [2010] 1 All ER 469, [2009] 3 FCR 607, [2009] 1 WLR 2557, [2010] PTSR 106, [2010] UKHRR 63
Bailii
Children Act 1989 20(1) 105(1), European Convention on Human Rights 6(1)
England and Wales
Citing:
Cited – Regina (B) v Merton London Borough Council Admn 14-Jul-2003
The authority had to decide the age of the applicant, an asylum seeker, in order to decide whether a duty was owed to him under the Act. He complained that the procedure adopted was unfair. The 2002 Act did not apply to persons under 18, and he . .
Cited – M, Regina (on the Application of) v London Borough of Hammersmith and Fulham HL 27-Feb-2008
M, a girl aged 16 had become estranged from her mother, and sought housing assistance. She was not referred to the authority’s children’s services, and was not housed. The House examined the duties of local authorities under the section towards . .
at First Instance – M and Another, Regina (on the Application of) v London Borough of Lambeth and others Admn 20-Jun-2008
The claimant had arrived from Afhganistan and sought asylum and accomodation as a child. The social worker involved assessed him to be an adult.
Held: The decision was within the duties of the local authorities. . .
Cited – G, Regina (on the Application of) v London Borough Of Southwark HL 20-May-2009
The House was asked whether when a child of 16 or 17 who was ejected from home and presents himself to a local children’s services authority and asks to be accommodated by them under section 20 of the Children Act 1989, it is open to that authority . .
Cited – A v London Borough of Croydon; Regina (WK) v Kent County Council Admn 8-May-2009
The claimants had arrived as asylum seekers, and said that they were under eighteen, and entitled to assistance as children. The social workers decided that they were older. The claimants said that insufficient attention had been given to . .
Appeal from – A, Regina (on the Application of) v London Borough of Croydon CA 18-Dec-2008
The court declined appeals against findings that local authorities through social workers could properly assess whether the claimants were under eighteen and entitled, though asylum seekers, to housing provision and support under the 1989 Act. . .
Cited – Sir Henry Edward Bunbury, Bart v Philip Fuller 25-Jun-1853
A section of an Act of Parliament imposed a restraint on the jurisdiction of tithe commissioners in the case of lands in respect of which the tithes had already been perpetually commuted or statutorily extinguished. The tithe commissioners had, . .
Cited – Regina v Fulham, Hammersmith and Kensington Rent Tribunal, ex parte Zerek 1951
A rent tribunal could not give itself jurisdiction over an unfurnished letting. Devlin J said: ‘While they will not allow every empty threat to their jurisdiction to deter them from their proper business of fixing reasonable rents, they will . .
Cited – Wahid v London Borough of Tower Hamlets CA 7-Mar-2002
Gilliatt The appellant suffered from schizophrenia. He was refused permission to apply for judicial review and for orders requiring the local authority not just to provide suitable accommodation but better . .
Cited – Regina (Wilkinson) v Broadmoor Special Hospital and Others CA 22-Oct-2001
A detained mental patient sought to challenge a decision by his RMO that he should receive anti-psychotic medication, despite his refusal to consent, and to challenge a certificate issued by the SOAD.
Held: Where a mental patient sought to . .
Cited – Ringeisen v Austria ECHR 16-Jul-1971
The Austrian District and Regional Real Property Transactions Commission refused to approve the sale of a number of plots of land. The applicant challenged the refusal alleging bias and contending that his article 6 rights were violated for that . .
Cited – Regina v Barnet London Borough Council, Ex parte Shah HL 16-Dec-1982
The five applicants had lived in the UK for at least three years while attending school or college. All five were subject to immigration control, four had entered as students with limited leave to remain for the duration of their studies, and the . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – Albert And Le Compte v Belgium ECHR 10-Feb-1983
. .
Cited – Khera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department HL 10-Feb-1983
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal . .
Cited – Regina v Hillingdon London Borough Council Ex parte Puhlhofer HL 2-Jan-1986
Not Homeless Even if Accomodation Inadequate
The applicants, a married couple, lived with a young child and later also a baby in one room of a guest house. They were given breakfast but had no cooking or washing facilities. They succeeded on a judicial review of the housing authority’s . .
Cited – Benthem v The Netherlands ECHR 23-Oct-1985
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Non-pecuniary damage – finding of violation sufficient . .
Cited – Obermeier v Austria ECHR 28-Jun-1990
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Violation of Art. 6-1; Non-pecuniary damage – financial award; Costs and expenses award – domestic proceedings; Costs . .
Cited – Kingsley v The United Kingdom (No 2) ECHR 28-May-2002
The finding that a party had been denied a fair trial may of itself be sufficient compensation. The applicant had been excluded from management of licensed casinos. The appeal board had been found to have given the appearance of bias against him. . .
Cited – Feldbrugge v The Netherlands ECHR 29-May-1986
The court was asked whether the applicant’s entitlement to a statutory sickness allowance, which was a contributory scheme but for which she had not registered due to illness, was a civil right within the meaning of article 6.
Held: The . .
Cited – Salesi v Italy ECHR 26-Feb-1993
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – financial award; Non-pecuniary damage – financial award; Costs and expenses award – Convention proceedings . .
Cited – Mennitto v Italy ECHR 5-Oct-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings . .
Cited – Mihailov v Bulgaria ECHR 21-Jul-2005
ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 6-1; Non-pecuniary damage – financial award; Costs and expenses award – Convention proceedings. . .
Cited – Wos v Poland ECHR 8-Jun-2006
The claimant objected to the removal of a right to compensation for having been used as forced labour in the second world war. The applicant was held to enjoy, at least on arguable grounds, a right to compensation which fell within the ambit of . .
Cited – P v United Kingdom ECHR 13-Oct-1986
. .
Cited – Ferrazzini v Italy ECHR 12-Jul-2001
(Grand Chamber) The court had to decide whether tax proceedings brought by the state against an individual involved the determination of a civil right within the meaning of article 6(1). It was argued by the Government that the existence of an . .
Cited – Vilho Eskelinen And Others v Finland ECHR 19-Apr-2007
Even where article 6(1) applied to a field falling within the traditional sphere of public law, this did not in itself determine how the various guarantees of article 6 should be applied to such disputes. . .
Cited – Woonbron Volkshuisvestingsgroep v The Netherlands ECHR 18-Jun-2002
Decisions about state subsidies to housing associations do not raise issues about civil rights. . .
Cited – Runa Begum v London Borough of Tower Hamlets (First Secretary of State intervening) HL 13-Feb-2003
The appellant challenged the procedure for reviewing a decision made as to the suitability of accomodation offered to her after the respondent had accepted her as being homeless. The procedure involved a review by an officer of the council, with an . .
Cited – Sypchenko v Russia ECHR 1-Mar-2007
. .
Cited – Tsfayo v The United Kingdom ECHR 14-Nov-2006
The applicant challenged the prodecures for deciding her appeal against the council’s refusal to pay backdated housing benefits. She complained that the availability of judicial review of the decision was not adequate.
Held: The system did not . .
Cited – Teteriny v Russia ECHR 30-Jun-2005
ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 6-1; Violation of P1-1; Inadmissible as regards second applicant; Non-pecuniary damage – financial award. . .
Cited – Lawal v Northern Spirit Limited HL 19-Jun-2003
Counsel appearing at the tribunal had previously sat as a judge with a tribunal member. The opposing party asserted bias in the tribunal.
Held: The test in Gough should be restated in part so that the court must first ascertain all the . .
Cited – Loiseau v France ECHR 28-Sep-2004
ECHR Judgment (Merits) – No violation of Art. 6-1.
The court referred to ‘a ‘private right’ which can be said, at least on arguable grounds, to be recognised under domestic law’ and to ‘an individual right . .
Cited – Schuler-Zgraggen v Switzerland ECHR 24-Jun-1993
The court considered a contributory invalidity scheme: ‘today the general rule is that Article 6(1) does apply in the field of social insurance, including even welfare assistance . . State intervention is not sufficient to establish that Article . .

Cited by:
Cited – Savva, Regina (on The Application of) v Royal Borough of Kensington and Chelsea Admn 11-Mar-2010
The claimant challenged the defendant’s policies on caring for elderly people within the community saying that it provided insufficient funds, and the procedures for review were inadequate and infringed her human rights. . .
Cited – Tomlinson and Others v Birmingham City Council SC 17-Feb-2010
The appellant asked whether the statutory review of a housing authority’s decision on whether he was intentionally homeless was a determination of a civil right, and if so whether the review was of the appropriate standard. The claimant said that . .
Cited – Bubb v London Borough of Wandsworth CA 9-Nov-2011
The appellant had sought housing assistance. She had been offered accomodation but refused it as unreasonable. The authority declined further assistance. She now appealed against the refusal of the county court judge to set aside the decision . .
Cited – AA, Regina (on The Application of) v Secretary of State for The Home Department SC 10-Jul-2013
The issue on this appeal is the effect of section 55 on the legality of the appellant’s detention under paragraph 16 over a period of 13 days. At the time of the detention the Secretary of State acted in the mistaken but reasonable belief that he . .
Cited – Bourgass and Another, Regina (on The Application of) v Secretary of State for Justice SC 29-Jul-2015
The Court considered the procedures when a prisoner is kept in solitary confinement, otherwise described as ‘segregation’ or ‘removal from association’, and principally whether decisions to keep the appellants in segregation for substantial periods . .

Lists of cited by and citing cases may be incomplete.

Children, Human Rights, Immigration, Local Government

Updated: 01 November 2021; Ref: scu.381492

Holmes-Moorhouse v Richmond Upon Thames: HL 4 Feb 2009

The father had been awarded shared residence for three children. He asked the local authority to provide appropriate housing.
Held: The authority’s appeal succeeded.
‘When any family court decides with whom the children of separated parents are to live, the welfare of those children must be its paramount consideration: the Children Act 1989, section 1(1). This means that it must choose from the available options the future which will be best for the children, not the future which will be best for the adults. It also means that the court may be creative in devising options which the parents have not put forward. It does not mean that the court can create options where none exist.’
A housing authority when making an assessment had wider responsibilities than does a court considering residence. The criteria look similar but not the same. ‘The question which the housing authority therefore had to ask itself was whether it was reasonably to be expected, in the context of a scheme for housing the homeless, that children who already had a home with their mother should be able also to reside with the father. In answering this question, it would no doubt have to take into account the wishes of both parents and the children themselves. It would also have to have regard to the opinion of a court in family proceedings that shared residence would be in the interests of the children. But it would nevertheless be entitled to decide that it was not reasonable to expect children who were not in any sense homeless to be able to live with both mother and father in separate accommodation.’ The court of appeal had been incorrect to say that resources were not an issue for the authority to consider, and nor should it intervene in children applications.
Baroness Hale said that when making the shared residence order the court should have included among its considerations the residence which either party could provide. In the circumstances where as here a party could not provide the residence facility, a shared residence order should not have been made: ‘Family court orders are meant to provide practical solutions to the practical problems faced by separating families. They are not meant to be aspirational statements of what would be for the best in some ideal world which has little prospect of realisation. Ideally there may be many cases where it would be best for the children to have a home with each of their parents. But this is not always or even usually practicable. Family courts have no power to conjure up resources where none exist. Nor can they order local authorities or other public agencies to provide particular services unless there is a specific power to do so. ‘
Lord Neuberger set out the LA’s task on reviewing its decision: ‘review decisions are prepared by housing officers, who occupy a post of considerable responsibility and who have substantial experience in the housing field, but they are not lawyers. It is not therefore appropriate to subject their decisions to the same sort of analysis as may be applied to a contract drafted by solicitors, to an Act of Parliament, or to a court’s judgment. . . Accordingly, a benevolent approach should be adopted to the interpretation of review decisions. The court should not take too technical a view of the language used, or search for inconsistencies, or adopt a nit-picking approach, when confronted with an appeal against a review decision. That is not to say that the court should approve incomprehensible or misguided reasoning, but it should be realistic and practical in its approach to the interpretation of review decisions.’

Lord Hoffmann, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Neuberger of Abbotsbury
[2009] UKHL 7, [2009] NPC 22, [2009] Fam Law 391, [2009] 1 FLR 904, [2009] 1 WLR 413, [2009] 2 FCR 277, [2009] PTSR 698, [2009] 3 All ER 277
Bailii, HL, Times
Housing Act 1996 Part VII
England and Wales
Citing:
Cited – A (A Child: Joint Residence/Parental Responsibility) CA 30-Jul-2008
The Court approved of the practice of making a shared residence order in order to confer parental responsibility upon a man who was not the natural father, even though the child actually stayed with him only on alternate week-ends. . .
Appeal from – Holmes-Moorhouse v London Borough of Richmond-Upon-Thames CA 10-Oct-2007
The court considered the duties of a local authority to provide housing where a a court made a shared residence order.
Held: The making of an order for shared residence between a mother and father living apart was not itself determinative to . .
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 – Din (Taj) v Wandsworth London Borough Council HL 26-Nov-1981
The appellants had applied for emergency housing as homeless persons, anticipating loss of their secure accomodation after falling into arrears. The Council reject their application, but a County Court quashed that decision. The Court of Appeal . .
Cited – Regina v Hillingdon London Borough Council Ex parte Puhlhofer HL 2-Jan-1986
Not Homeless Even if Accomodation Inadequate
The applicants, a married couple, lived with a young child and later also a baby in one room of a guest house. They were given breakfast but had no cooking or washing facilities. They succeeded on a judicial review of the housing authority’s . .
Cited – In re G (a Child) (Interim Care order: Residential assessment) CA 27-Jan-2004
An elder child had died, and the local authority felt unable to exculpate either the father or the mother. On the birth of this child all three had been brought in for a residential assessment. First one then another extension was sought. The court . .

Cited by:
Cited – Hotak and Others v London Borough of Southwark and Another SC 13-May-2015
The court was asked as to the duty of local housing authorities towards homeless people who claim to be ‘vulnerable’, and therefore to have ‘a priority need’ for the provision of housing accommodation under Part VII of the Housing Act 1996. Those . .
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 . .
Cited – N v ACCG and Others SC 22-Mar-2017
The local authority and a young man’s parents disputed his continued care, he having substantial incapacities. The parents wanted assistance caring for him on visits home. The LA declined to fund that support. The LA now argued that the CoP had not . .
Cited – Poshteh v Royal Borough of Kensington and Chelsea SC 10-May-2017
The appellant, applying for housing as a homeless person, had rejected the final property offered on the basis that its resemblance to the conditions of incarceration in Iran, from which she had fled, would continue and indeed the mental . .

Lists of cited by and citing cases may be incomplete.

Children, Housing

Leading Case

Updated: 01 November 2021; Ref: scu.280436

Re Gard (A Child): FD 24 Jul 2017

The baby boy suffered life threatening conditions. Doctors at the hospital sought directions to allow the withdrawal of life support. His parents wanted him to be given the chance of experimental treatment in the US. In April a declaration had been made allowing the withdrawal of life support. The parents appeals had been rejected by the Court of Appeal, the Supreme Court and the European Court of Human Rights. The parents asserted that new evidence was now available and asked the court to review its decision.
Held: The court had to treat the child’s welfare as the paramount consideartion. The decision could only be reversed for compelling new evidence. The proposed treatment remained completely untested for this condition, and ‘The consequences of the MRI scans were briefly referred to in court last Friday. The parents have had to face the reality, almost impossible to contemplate; that Charlie is beyond any help even from experimental treatment and that it is in his best interests for him to be allowed to die. Given the consensus that now exists between parents, the treating doctors and even Dr Hirano, it is my very sad duty to confirm the declarations that I made in April this year, and I now formally do so. I do not make a mandatory order.’
As to any suggestion that the boy was in effect a prisoner of the state: ‘This is the antithesis of the truth. In this country children have rights independent of their parents. Almost all of the time parents make decisions about what is in the best interests of their children and so it should be. Just occasionally, however, there will be circumstances such as here where a hospital and parents are unable to decide what is in the best interests of a child who is a patient at that hospital. It is precisely because the hospital does not have power in respect of that child that this hospital makes an application to the court, to an independent judge, for a determination of what is in that child’s best interests. In circumstances where there is a dispute between parents and the hospital, it was essential that Charlie was himself independently represented and a guardian was therefore appointed to represent Charlie so that there was someone who could independently report to the court as to what was in his best interests. Our judges are fiercely independent of the state and make decisions, having heard evidence and having considered the law.’

Francis J
[2017] EWHC 1909 (Fam)
Bailii, Judiciary
Children Act 1989 1
England and Wales
Citing:
Cited – Great Ormond Street Hospital v Yates and Others FD 11-Apr-2017
Baby Gard suffered an overwhelming and life threating condition. The Hospital considered that his welfare wa sbest served by withdrawal of life support. His parents could not agree. The Hospital now sought a declaration from the court as to the . .

Lists of cited by and citing cases may be incomplete.

Children, Health Professions

Updated: 01 November 2021; Ref: scu.591137

London Borough of Richmond v B and Others: FD 12 Nov 2010

Caution in Use of Hair Samples to Test Alcohol

The court considered the extent to which reliance could be placed on tests of hair samples for alcohol in care proceedings.
Held: Such evidence should be used with caution: ‘(i) When used, hair tests should be used only as part of the evidential picture. Of course, at the very high levels which can be found (multiples of the agreed cut off levels) such results might form a significant part of the evidential picture. Subject to this however, both Professor Pragst and Mr O’Sullivan agreed that ‘You cannot put everything on the hair test’; in other words that the tests should not be used to reach evidential conclusions by themselves in isolation of other evidence. I sensed considerable unease on the part of Professor Pragst at the prospect of the results of the tests being used, other than merely as one part of the evidence, to justify significant child care decisions;
(ii) Because of the respective strengths and weaknesses of each of the tests (for EtG and FAEEs), if hair tests are going to be undertaken, both tests should be used. Research has shown that the tests can produce conflicting results;
(iii) The results produced by the tests should be used only for the purposes of determining whether they are or are not consistent with excessive alcohol consumption by use of the cut off levels referred to in paragraph 20 above. If they are not – in other words if the concentration found is below the generally recognised cut-off levels – the results are consistent with (indicative of) abstinence/social drinking. If the results are above the generally recognised cut-off levels, they are consistent with (indicative of) excessive alcohol consumption. Further, as referred to earlier in this judgment, at these cut off levels the research evidence suggests that 10% of the results will be false positives. The tests cannot establish whether a person has been abstinent both because the non-detection of either EtG or FAEEs does not mean that the subject has not consumed alcohol and also because the detection of either at volumes below the cut off levels referred to above below does not mean that they have. Finally, on this point, the tests are not designed to establish abstinence or social drinking;
(iv) The current peer agreed cut off levels for both EtG and FAEEs are for the proximal 3 cm segment of hair. Whilst the testing of 1 cm segments (of the proximal 3 cm segment of hair) might have some value for the purpose of looking at trends (and also at very high levels referred to in (i) above), no cut off levels have been established or generally agreed for 1 cm segments nor, as referred to earlier in this judgment, is there sufficient published data on testing such segments to enable the validity of such tests to be established. Accordingly, any evidence based on the testing of 1 cm segments is unlikely to be sufficient to support conclusions as to the level of alcohol consumption;
(v) Notwithstanding what is set out in the Consensus, the witnesses in these proceedings agreed that, when tests demonstrate levels of EtG and FAEEs above the cut off levels referred to in paragraph 20, the results can be said to be ‘consistent’ with excessive consumption over the relevant period. When a test demonstrates a lower level it is ‘consistent’ with abstinence/social drinking.
(vi) As referred to in (iii) above, the current state of research means that there is no peer agreed cut off level for the line between abstinence and social drinking. In the absence of any such peer reviewed and agreed cut off, any court would, in my view, need specific justification before accepting any such evidence.’

Moylan J
[2010] EWHC 2903 (Fam), (2011) 118 BMLR 65, [2011] Fam Law 131, [2011] 1 FCR 401, [2011] 1 FLR 1345
Bailii
England and Wales
Citing:
Cited – Re F (Children) (DNA Evidence) FD 20-Dec-2007
The court considered the difficulties which can arise from the use of DNA testing in family proceedings. Experts need to bear in mind that their reports should be expressed in terms which can be understood by lay people and in terms which explain . .
Cited – Regina v Weller CACD 4-Mar-2010
The defendant appealed against his convictions for sexual offences, based in part on DNA evidence. He said that the court had not properly applied the rules when considering DNA cases and that there was now additional evidence as to the possibility . .

Lists of cited by and citing cases may be incomplete.

Children, Evidence

Leading Case

Updated: 01 November 2021; Ref: scu.430393

Payne v Payne; P v P: CA 13 Feb 2001

No presumption for Mother on Relocation

The mother applied for leave to return to New Zealand taking with the parties’ daughter aged four. The father opposed the move, saying that allowing the move would infringe his and the child’s right to family life. He had been refused residence.
Held: The move was a serious interference with family life. The motivation of the parent, the reasonableness of the proposal, and the effects on the child were all important and relevant, but the judge had given proper consideration to these factors, and the paramountcy of the child’s interests. Neither domestic case law nor human rights law created any presumption in favour of the applicant. Existing case law was to be reconsidered in the light of the 1998 Act.
Thorpe LJ said: ‘the advent of the Convention within our domestic law does not necessitate a revision of the fundamental approach to relocation applications formulated by this court and consistently applied over so many years. The reason that I hold this opinion is that reduced to its fundamentals the court’s approach is and always has been to apply child welfare as the paramount consideration. The court’s focus upon supporting the reasonable proposal of the primary carer is seen as no more than an important factor in the assessment of welfare. In a united family the right to family life is a shared right. But once a family unit disintegrates the separating members’ separate rights can only be to a fragmented family life. Certainly the absent parent has the right to participation to the extent and in what manner the complex circumstances of the individual case dictate.’
‘In summary a review of the decisions of this court over the course of the last thirty years demonstrates that relocation cases have been consistently decided upon the application of the following two propositions:
(a) the welfare of the child is the paramount consideration; and
(b) refusing the primary carer’s reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children . .
Thus in most relocation cases the most crucial assessment and finding for the judge is likely to be the effect of the refusal of the application on the mother’s future psychological and emotional stability.’
He continued: ‘However there is a danger that if the regard which the court pays to the reasonable proposals of the primary carer were elevated into a legal presumption then there would be an obvious risk of the breach of the respondent’s rights not only under Article 8 but also his rights under Article 6 to a fair trial. To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother’s proposals are necessarily compatible with the child’s welfare I would suggest the following discipline as a prelude to conclusion:
(a) Pose the question: is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life. Then ask is the mother’s application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow.
(b) If however the application passes these tests then there must be a careful appraisal of the father’s opposition: is it motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?
(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?
(d) The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate.
In suggesting such a discipline I would not wish to be thought to have diminished the importance that this court has consistently attached to the emotional and psychological well-being of the primary carer. In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor.’

Thorpe LJ P, Walker LJ, Butler-Sloss LJ
Gazette 08-Mar-2001, [2001] Fam 473, [2001] EWCA Civ 166, (2001) 165 JP 195, [2001] HRLR 28, (2001) 165 JPN 466, [2001] 1 FCR 425, [2001] UKHRR 484, [2001] 2 WLR 1826, [2001] 1 FLR 1052, [2001] 1 Cr App R 36, [2001] Crim LR 842
Bailii
Children Act 1989 13(1)(b), European Convention on Human Rights 6 8, Human Rights Act 1998
England and Wales
Citing:
Cited – Poel v Poel CA 1970
The mother of a child of two and a half had obtained a custody order with weekly access given to the father. She wished to emigrate with her new husband and the expected child of that marriage to New Zealand. She applied to remove the child . .
Cited – A v A CA 1979
The mother had been given leave to take the child of the family out of the jurisdiction. The father sought leave to appeal.
Held: Ormrod LJ said: ‘It is always difficult in these cases when marriages break up where a wife who, as this one is, . .
Cited – Chamberlain v de la Mare CA 1983
The mother wanted to take the two infant children to New York with her new husband. The father resisted. At first instance, Balcombe J had considered both Poel and Nash, but said that without wishing to be an iconoclast, he would simply apply the . .
Cited – Lonslow v Hennig CA 1986
The mother sought leave to remove the children of the family against the father’s wishes. She wanted to move to New Zealand. The judge at first instance had refused her application. She appealed.
Held: The appeal succeeded. Though the first . .
Cited – Moodey v Field CA 13-Feb-1981
The mother appealed against refusal of permission to remove the child from the jurisdiction.
Held: Ormrod LJ summarised the situation: ‘the question therefore in each case is, is the proposed move a reasonable one from the point of view of the . .
Cited – Nash v Nash CA 1973
Davies LJ said: ‘But I emphasise once more that when one parent has been given custody it is a very strong thing for this court to make an order which will prevent the following of a chosen career by the parent who has custody.’ . .
Cited – Belton v Belton CA 1987
The mother appealed against refusal of leave to remove her children from the UK on emigrating to New Zealand.
Held: The appeal succeeded.
Purchas LJ said that: ‘in carrying out the exercise of assessing what was in the interest of A as . .
Cited – Tyler v Tyler CA 1989
Kerr LJ, having considered the cases on removing children from the jurisdiction on one parent emigrating said: ‘I also accept that this line of authority shows that where the custodial parent herself, it was the mother in all those cases, has a . .
Cited – MH v GP (Child: Emigration) FD 1995
A single mother wanted to move permanently to New Zealand with her four year old son. The father had regular contact with his son.
Held: The application failed. The Judge stressed the importance of the child’s relationship with the father and . .
Cited – Douglas, Zeta Jones, Northern and Shell Plc v Hello! Limited (No 1) CA 21-Dec-2000
The first two claimants sold exclusive rights to photograph their wedding to the third claimant. A paparrazzi infiltrated the wedding and then sold his unauthorised photographs to the defendants, who now appealed injunctions restraining them from . .
Cited – Glaser v The United Kingdom ECHR 19-Sep-2000
‘The essential object of Article 8 is to protect individuals against arbitrary interference by public authorities. There may however be positive obligations inherent in an effective ‘respect’ for family life. These obligations may involve the . .
Cited – In re H (application to remove from jurisdiction) FD 1998
The mother had remarried and now wished to move to the United States with her new husband, an American. The father had played an unusually large role in caring for the child as a baby and continued to keep closely in touch with her. The judge said . .
Cited – In Re L (A Child) (Contact: Domestic Violence); In Re V (A Child) (Contact: Domestic Violence); In Re M (A Child) (Contact: Domestic Violence); In Re H (A Child) (Contact: Domestic Violence); In re L, V, M and H (Children) CA 21-Jun-2000
When considering contact applications after domestic violence, the approach should be child centred, and according to the criteria in the Act. The circumstances of the violence should be looked into, and the potentially damaging effect of contact . .
Cited – In re A (permission to remove child from jurisdiction: human rights) CA 2000
The mother had been given leave by the Recorder to remove a ten month old girl permanently from the jurisdiction to the United States in circumstances where the mother`s job prospects were better in New York than in England. The father, (in person) . .
Cited – In Re C (leave to remove from the jurisdiction) CA 2000
The court heard an appeal from an order made on an application for leave to remove a child from the jurisdiction. . .
Cited – In re E (Minors) (Residence Orders: Imposition of Conditions) CA 30-Apr-1997
A residence order can not be accompanied by an order as to where a parent with care must live in the UK or with whom. An appeal may well arise in which a disappointed applicant will contend that section 13(1)(b) of the Children Act 1989 imposes a . .
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 – Johansen v Norway ECHR 7-Aug-1996
The court had to consider a permanent placement of a child with a view to adoption in oposition to the natural parents’ wishes.
Held: Particular weight should be attached to the best interests of the child, which may override those of the . .
Cited – Dawson v Wearmouth HL 4-Feb-1999
The parents were unmarried. The mother had registered the child under her former partner’s surname. The father sought an order that his name be used instead. The mother’s apeal against an order to that effect had succeeded.
Held: The father’s . .
Cited – L v Finland ECHR 27-Apr-2000
Hudoc Judgment (Merits and just satisfaction) No violation of Art. 8; No violation of Art. 13; Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; . .
Cited – Irene M Scott v The United Kingdom ECHR 8-Feb-2000
(Admissibility) The court was asked whether the mother’s Article 8 rights had been breached by a local authority who had applied to free her child for adoption, the court once again stated that ‘the best interests of the child is always of crucial . .
Cited – In Re N (Leave to withdraw care proceedings) 2000
. .
Cited – In Re A (Adoption: Mother’s Objections) 2000
. .
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 – MH v GP (Child: Emigration) FD 1995
A single mother wanted to move permanently to New Zealand with her four year old son. The father had regular contact with his son.
Held: The application failed. The Judge stressed the importance of the child’s relationship with the father and . .

Cited by:
Cited – In re Auld (Child: Temporary removal from Jurisdiction) CA 4-Nov-2004
The applicant wanted to go to South Africa to study, taking her child with her. The course would last for two years.
Held: The jurisprudence on removing children abroad had to be applied differently when the removal was temporary. Some . .
Cited – B (A Child); Re C (Welfare of Child: Immunisation) CA 30-Jul-2003
The father sought a specific issue order for the immunisation of his child in particular with the MMR vaccine. The mother opposed all immunisation.
Held: Whether a child was to be refused immunisation was an issue on which both parents should . .
Re-affirmed – In Re G (Children) (Leave to Remove) CA 11-Dec-2007
An application was made with regard to the care arrangements for children. The parents were living in different countries.
Thorpe LJ stated: ‘ Accordingly, the only skeleton in support of the appellant’s notice is the skeleton settled by Mr . .
Cited – In re H CA 19-May-2010
Wilson LJ considered a declaration on International Family Relocation from March 2010 in Washington and said: ‘In that the principal charge against our guidance, as it stands, is that it ascribes too great a significance to the effect on the child . .
Cited – In re D (Children); BD v AID CA 9-Feb-2010
The father sought leave to appeal against an order permitting the mother to remove the parties two sons from Wales to live in Slovakia. The judge had made a shared residence order. Wall LJ discussed the criticisms of Payne -v- Payne, saying: ‘There . .
Cited – in Re A (Leave to Remove: Cultural and Religious Consideration) FD 2006
. .
Cited – In re W (Children) CA 28-Jan-2009
. .
Cited – ETS v BT; in re T (A child); In Re L (a child) (internal relocation: shared residence order CA 28-Jan-2009
The mother appealed against a residence order granting the father equal time with the child, saying that she wished to move away.
Held: Wall LJ examined the authorities.
Wall LJ P said: ‘In twenty years time it will not matter a row of . .
Cited – AM v IM ScSf 28-Jun-2008
. .
Cited – AM v IM ScSf 28-Jun-2008
. .
Cited – In re X and Y FDNI 17-Aug-2005
. .
Cited – In re X NIHCM 23-Dec-2005
. .
Cited – E v E CA 27-Jun-2006
The court heard cross appeals by both parties regarding an order for shared residence and apportioned care and for ancillary relief.
Held: Both appeals succeeded, the order was set aside (save as to the decision for shared residence) and the . .
Cited – Re M (Children) CA 19-Oct-2007
. .
Cited – Regina (Howard League for Penal Reform) v Secretary of State for the Home Department QBD 29-Nov-2002
The League challenged the respondent’s statement in the Prisons’ Handbook that children held in young offender institutions were not subject to the protection of the 1989 Act.
Held: Neither the Prison Act and Rules excluded the Prison . .
Cited – In re B (Children) (Removal from jurisdiction); In re S (Child) (Removal from jurisdiction) CA 30-Jul-2003
Mothers appealed refusal of leave to remove their children from the jurisdiction so that they could make a life with a new partner.
Held: The case of Payne was not directly of effect, because the mother there was returning to her home country. . .
Cited – W v A CA 4-Nov-2004
. .
Cited – Emma R v Edward R FD 10-Nov-2004
Mother’s application for residence order allowing the children to live with her in Paris. . .
Applied – In re AR (A Child: Relocation) FD 10-Jun-2010
ar_childFD2010
Both parents had parental responsibility. The French mother wished to return to live in France and to take the five year old child with her, applying to court for the appropriate order.
Held: The court pointed to the real difficulties always . .

Lists of cited by and citing cases may be incomplete.

Children, Human Rights

Leading Case

Updated: 01 November 2021; Ref: scu.135573

MWA (Afghanistan) v Secretary of State for The Home Department: CA 21 May 2014

The asylum claimant disputed the assessment that he was an adult.

Maurice Kay, Davis, Floyd LJJ
[2014] EWCA Civ 706
Bailii
Children Act 1989 20
England and Wales
Citing:
Cited – A v London Borough of Croydon; Regina (WK) v Kent County Council Admn 8-May-2009
The claimants had arrived as asylum seekers, and said that they were under eighteen, and entitled to assistance as children. The social workers decided that they were older. The claimants said that insufficient attention had been given to . .

Lists of cited by and citing cases may be incomplete.

Immigration, Children

Updated: 01 November 2021; Ref: scu.525637

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, whilst in a later relationship she gave birth to a further child of the father in that first relationship. The authority began care proceedings and now appealed against rejection of its request for a care order. The order was sought based upon the historical evidence, but the courts below had said, in accordance with authority, that in establishing the threshold condition from an earlier finding, a court could only act where that finding was that harm was caused by the parent on the balance of probabilities. A suspicion that she might be at fault was not enough.
Held: The appeal failed. Lady Hale delivered the leading speech. The court emphasised the seriousness of removing a child from the parents, and the vital importance of the threshold test to protect families from unwarranted intrusion.
The issue in one form or another had reached the highest courts on six previous occasions, and the courts have consistently found that a prediction of future harm must be based upon facts proven on at least a balance of probabilities.
The case had been artficially constructed to test the point, and it should be remembered that such cases are rare. In particular here, the authority had chosen not to bring in any allegation as to the current arrangements. The child had now been living within these current stable arrangements without any suggestion of harm occurring.
Lords Wilson and Sumption dissenting in part, said that where a previous hearing had been able only to identify the parent as one in a pool of possible perpetrators, and that could not found an allegation of a risk of serious harm to another child of that carer, it would, from logic, also not properly serve as part of the requisite foundation alongside other facts.

Lord Hope, Deputy President, Lady Hale, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed, Lord Carnwath
[2013] UKSC 9, [2013] WLR(D) 74, [2013] 2 WLR 649, UKSC 2012/0128, [2013] 1 AC 680
Bailii, Bailii Summary, WLRD, SC Summary, SC
European Convention on Human Rights 8, Children Act 1989
England and Wales
Citing:
Appeal from – In re J (Children) CA 3-Apr-2012
The mother JJ’s first baby had died after physical abuse inflicted either by her or the father. In care proceedings for a later child, the judge concluded ‘T-L’s injuries could have been inflicted by either, or both, of them. Singling out a likely . .
Cited – 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 . .
Cited – 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 . .
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 – In re O and N (Minors); In re B (Minors) (Care: Preliminary hearing) HL 3-Apr-2003
The appeals were from conflicting decisions in care applications where one or other or both parents were guilty of lack of care, but there was no evidence to say which was responsible.
Held: The threshold criteria had been met, and the court . .
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 – In re S-B (Children) (Care proceedings: Standard of proof) SC 14-Dec-2009
A child was found to have bruising consistent with physical abuse. Either or both parents might have caused it, but the judge felt it likely that only one had, that he was unable to decide which, and that they were not so serious that he had to say . .

Cited by:
Cited – Re B (A Child) (Care Proceedings: Threshold Criteria) SC 12-Jun-2013
B had been removed into care at birth. The parents now appealed against a care order made with a view to B’s adoption. The Court was asked as to the situation where the risks were necessarily only anticipated, and as to appeals against a finding of . .
Cited – Re EV (A Child) SC 1-Mar-2017
Appeal from application for permanence order. EV had been in care from her birth. Her parents, each with long standing learning difficulties opposed the order.
Held: The Court allowed the parents’ appeals. The meeting of the threshold test was . .

Lists of cited by and citing cases may be incomplete.

Children

Leading Case

Updated: 01 November 2021; Ref: scu.471048

Liverpool City Council, Regina (on the Application of) v London Borough of Hillingdon and Another: CA 10 Feb 2009

The applicant asylum-seeker had arrived in Hillingdon and claimed that he required assistance, that he was a child, and that he wanted to go to Liverpool. Hillingdon had assisted him to do so. Liverpool now appealed against a finding that it was responsible to provide care for him.
Held: The appeal succeeded. Hillingdon had a duty to investigate the circumstances before reaching its decision. That duty included giving proper consideration to the wishes of the child, and such wishes should be given more weight according to their cogency, and might be determinative. Even so the Authority had a duty to make a proper assessment, and had not done so. Hillingdon had not discharged its duty.

Lord Justice Rix, Lord Justice Dyson and Lord Justice Wilson
[2009] EWCA Civ 43, [2009] Fam Law 394, [2009] 1 FLR 1536, [2009] PTSR 1067, (2009) 12 CCL Rep 286, [2009] BLGR 289
Bailii, Times
Children Act 1989 20
England and Wales
Citing:
Appeal from – Liverpool City Council, Regina (on the Application of) v London Borough of Hillingdon and AK Admn 18-Jul-2008
Two local authorities disputed who should take responsibility for the care of a vulnerable young person. He had first claimed asylum in Liverpool, then was detained in Oxfordshire and last in Hillingdon who returned him on his request to Liverpool, . .

Cited by:
Cited – G, Regina (on the Application of) v London Borough Of Southwark HL 20-May-2009
The House was asked whether when a child of 16 or 17 who was ejected from home and presents himself to a local children’s services authority and asks to be accommodated by them under section 20 of the Children Act 1989, it is open to that authority . .

Lists of cited by and citing cases may be incomplete.

Children, Local Government

Updated: 01 November 2021; Ref: scu.282604

G v G (Minors: Custody appeal): CA 1985

A court should take great care before setting aside a decision of a judge which had involved the exercise of a judicial discretion. The court considered the duty of an appellate court in a children case: ‘What this court should seek to do is to answer the question whether the court discerns a wrongness in the result of so striking a character as to make it a legitimate conclusion that there must have been an error of method – apart, of course, from a disclosed inclusion of irrelevant or exclusion of relevant matters . . the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible.’

Sir John Arnold
[1985] 1 WLR 647, [1985] FLR 894, [1985] 2 All ER 225
England and Wales
Cited by:
Cited – In Re P (Minors) (Contact) CA 15-May-1996
The father appealed an order refusing him direct contact with the child. The judge had made the order because he considered that the mother’s hostility to contact made it likely that her health would suffer if contact was ordered, and that the . .
Cited – K v Central and North West London Mental Health NHS Trust and Another QBD 30-May-2008
k_centralQBD2008
The claimant appealed against an order striking out his claim in negligence. He had leaped from a window in a suicide attempt. The accommodation was provided by the defendant whilst caring for him under the 1983 Act.
Held: The case should be . .
Cited – Noorani v Merseyside TEC Limited CA 19-Oct-1998
The claimant had claimed race discrimination. The tribunal declined to order the issue of witness summonses. The EAT overturned that decision on the basis that the tribunal had not recognised that it had a discretion to issue the summonses, and had . .
Cited – Desmond v Bower CA 7-Jul-2009
Application was made for a summons for a witness to attend and produce documents and a tape recording for the trial. The request had been rejected as an attempt to rely on similar fact evidence, and had been brought only late in the hearing.
Cited – In re B (A Child) SC 19-Nov-2009
The Court considered a decision granting to a father the care of his child who appeared to have become happily settled with the maternal grandmother.
Held: The grandmother’s appeal succeeded. The judge and court of appeal had misunderstood the . .
Cited – Oxfordshire County Council v X and Others CA 27-May-2010
The LA, the guardian and adoptive parents appealed against an order that they should provide to the parents an annual photograph of the child. They contended that an image should only be made available to be viewed at the authority’s offices . .
Appeal from – G v G (Minors: Custody Appeal) HL 25-Apr-1985
The House asked when a decision, on the facts, of a first instance court is so wrong as to allow it to be overturned on appeal.
Held: The epithet ‘wrong’ is to be applied to the substance of the decision made by the lower court. ‘Certainly it . .
Cited – Kernott v Jones CA 26-May-2010
The unmarried couple bought a property together. Mr K appealed against an award of 90% of the property to his former partner. The court was asked, whether, following Stack v Dowden, it was open to the court to find that the parties had agreed that . .
Cited – Okoro and Another v Taylor Woodrow Construction Ltd and Others EAT 6-Dec-2010
EAT PRACTICE AND PROCEDURE
Postponement or stay
Appellate jurisdiction/reasons/Burns-Barke
Where an application is made to an Employment Tribunal for a postponement in writing and at the . .
Cited – G v E and Others CA 16-Jul-2010
E, now aged 19, suffered a genetic disorder leading to severe learning disability and lack of mental capacity. He had been in the care of his sister, the appellant, but had been removed by the local authority when his behaviour became disturbed. G, . .
Cited – Royal Devon and Exeter NHS Foundation Trust v Acres QBD 22-Mar-2013
The defendant challenged the use by the claimant of solicitors from Central London in her claim for personal injury. She was a radiographer, and her work involved exposure to dangerous materials, though in this case it arose from use of machinery . .

Lists of cited by and citing cases may be incomplete.

Children, Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.241337

C (A Minor) v Director of Public Prosecutions: HL 17 Mar 1995

The House considered whether the long established rule of the criminal law presuming that a child did not have a guilty mind should be set aside.
Held: Doli incapax, the presumption of a child’s lack of mens rea, is still effective and good law, but a child is not capable at law without the requisite knowledge. Judicial review was sought of the Director’s decision not to prosecute, but it was not suggested that the court’s jurisdiction to grant relief was ousted by section 29(3). Lord Lowry said that the presumption as too firmly embedded in the law of England to be removed by the judiciary: ‘Of course, no one could possibly contend (nor did Mr. Henriques try to do so) that this proposal represents what has always been the common law; it would be a change or a ‘development.’ It is quite clear that, as the law stands, the Crown must, as part of the prosecution’s case, show that a child defendant is doli capax before that child can have a case to meet. To call the proposed innovation a merely procedural change greatly understates, in my view, its radical nature, which would not be disguised by continuing to impose the persuasive burden of proof upon the prosecution. The change would not merely alter the trial procedure but would in effect get rid of the presumption of doli incapax which must now be rebutted before a child defendant can be called for his defence and the existence of which will in practice often prevent a charge from even being brought. This reflection must be enough to discourage any thought of ‘judicial legislation’ on the lines proposed.’
Only in highly exceptional cases will the court disturb the decisions of an independent prosecutor and investigator.
Lord Jauncey discussed the position in Scotland: ‘No such presumption operates in Scotland where normal criminal responsibility attaches to a child over 8 and I do not understand that injustice is considered to have resulted from this situation.’
Lord Lowry said: ‘Mr Henriques QC, presenting the respondent’s case, frankly conceded that the Divisional Court was bound by authority to recognise and apply the presumption, but he submitted that the presumption was illogical in conception and bizarre in its effect. His written case submissions based on the current educational standards of children and on the ever earlier onset of their physical and psychological maturity, as witness by the recent statutory abolition of the irrebuttable common law presumption that boys under 14 are incapable of offences involving sexual intercourse on their own part (Sexual Offences Act 1993). The written case also listed examples of legislative and judicial changes of attitude towards young children called as witnesses. Against this background counsel submitted, not that the presumption should be swept away but (echoing the 1954 proposal of Professor Glanville Williams) that in recognition of its frailties your lordships should by judicial intervention effect a change by laying it down that the prosecution’s initial burden of showing a prima facie case against a child should be the same as if the accused were an adult but that the child should then be able by evidence to raise as a defence the issue that he was doli incapax; it would then be for the prosecution to prove to the criminal standard that the child was doli capax. That your Lordships in a judicial capacity could make this change which counsel categorised as merely procedural, was an express and necessary part of his argument.

Of course no one could possibly contend (nor did Mr Henriques try to do so) that this proposal represents what has always been the common law; it would be a change or ‘development’. It is quite clear that as the law stands, the Crown must, as part of the prosecution’s case show that a child defendant is doli capax before that child can have a case to meet. To call the proposed innovation a merely procedural change greatly understates, in my view, its radical nature, which would not be disguised by continuing to impose the persuasive burden of proof upon the prosecution. The change would not merely alter the trial procedure but would in effect get rid of the presumption of doli incapax which must now be rebutted before a child defendant can be called for his defence and the existence of which will in practice often prevent a charge from even being brought. This reflection must be enough to discourage any thoughts of ‘judicial legislation’ on the lines proposed. ‘

and ‘One solution which has been suggested is to abolish the presumption with or without an increase in the minimum age of criminal responsibility. This, as Mr Robertson pointed out, could expose children to the full criminal process at an earlier age than most countries of Western Europe.’

Lord Lowry, Lord Jauncey
Times 17-Mar-1995, Independent 21-Mar-1995, (1995) Cr App R 136, [1995] UKHL 15, [1996] AC 1, [1995] RTR 261, [1995] 2 All ER 43, [1995] 2 WLR 383, (1995) 159 JP 269, [1995] 1 FLR 933, [1995] Fam Law 400, [1995] Crim LR 801
Bailii
Supreme Courts Act 1981 29(3), Prosecution of Offenders Act 1985 10
England and Wales
Citing:
Appeal from – C (A Minor) v Director of Public Prosecutions QBD 30-Mar-1994
The 12 year old defendant held the handlebars of a motorcycle allowing a second boy to try to remove the chain and padlock securing it. He appealed against his conviction.
Held: The presumption of doli incapax for a 10-14 year old child is no . .

Cited by:
Cited – Regina (Pretty) v Director of Public Prosecutions, and Another, Medical Ethics Alliance and Others, interveners Admn 18-Oct-2001
The function of the Director’s office is statutory, and his powers are those laid down. He is not able to excuse possible criminal conduct in advance, and nor could he establish a policy of not applying certain statutory provisions. The Suicide Act . .
Cited – Lewin v Crown Prosecution Service Admn 24-May-2002
The applicant sought review of the decision of the respondent not to initiate a prosecution in respect of a death in Spain. The deceased had been left drunk and unconscious in a car in the sun. There was a variance of opinion as to the exact cause . .
Cited – Regina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .
Cited – Director of Public Prosecutions v Jones and Lloyd HL 4-Mar-1999
21 people protested peacefully on the verge of the A344, next to the perimeter fence at Stonehenge. Some carried banners saying ‘Never Again,’ ‘Stonehenge Campaign 10 years of Criminal Injustice’ and ‘Free Stonehenge.’ The officer in charge . .
Cited – Regina v Director of Public Prosecutions ex parte Treadaway Admn 31-Jul-1997
The applicant had been convicted of a robbery and served a long prison sentence. After release he was awarded damages against some of the policie officers for assault. The DPP decided not to proceed against the officers by way of criminal . .
Cited – Corner House Research and Others, Regina (on the Application of) v The Serious Fraud Office HL 30-Jul-2008
SFO Director’s decisions reviewable
The director succeeded on his appeal against an order declaring unlawful his decision to discontinue investigations into allegations of bribery. The Attorney-General had supervisory duties as to the exercise of the duties by the Director. It had . .
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.

Criminal Practice, Children, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.78793

In re LU (A Child); In re LB (A Child) (Serious Injury: Standard of Proof); re U (A Child) (Department for Education and Skills intervening): CA 14 May 2004

In each case, the other parent appealed care orders where she had been found to have injured her children. In each case the sole evidence was the injury to the child’s health and expert medical evidence. The cases were referred following the Cannings case.
Held: The appeals failed. It was wrong to diminish the difference in standards of proof between civil and criminal cases. ‘The standard of proof to be applied in Children Act cases is the balance of probabilities and the approach to these difficult cases was laid down by Lord Nicholls in his speech in re H. ‘There were significant differences between care and criminal cases: more evidence would be admitted, and the proceedings were inquisitorial rather than adversarial. ‘it by no means follows that an acquittal on a criminal charge or a successful appeal would lead to the absolution of the parent or carer in family or civil proceedings.’
The court urged caution on those asked to find abuse: ‘(i) The cause of an injury or an episode that cannot be explained scientifically remains equivocal;
(ii) Recurrence is not in itself probative;
(iii) Particular caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of natural cause;
(iv) The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice;
(v) The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark.’

Dame Elizabeth Butler-Sloss P, Lord Justice Thorpe, And Lord Justice Mantell
[2004] EWCA Civ 567, Times 27-May-2004, Gazette 03-Jun-2004, [2005] Fam 134, [2004] Fam Law 565, [2004] 2 FCR 257, [2004] 3 WLR 753, [2004] 2 FLR 263
Bailii
England and Wales
Citing:
Cited – Regina v Angela Cannings CACD 19-Jan-2004
The defendant had been convicted of murdering her children. The substance of the evidence against her was that on a medical expert. His evidence was disputed and later doubted.
Held: Appeal allowed. In general courts should be careful to . .
Cited – 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 . .
Cited – B v Chief Constable of Avon and Somerset Constabulary QBD 5-Apr-2000
The defendant appealed the making of a sex offender order under 1998 Act. The justices had found that the defendant was a sex offender within section 2(1)(a) and that he had acted on a number of occasions in a way which brought him within section . .
Doubted – Re ET (Serious Injuries: Standard of Proof) FD 2003
The court heard a care application in which the baby had sustained skull, brain and other injuries alleged to be at the hands of her parents.
Held: The standard of proof was the civil standard of the balance of probabilities and directed . .
Cited – Re: CB and JB (care proceedings: guidelines) FD 8-Apr-1998
The court gave guidelines for procedures at preliminary hearings in care cases, and as to psychiatric evidence: ‘(iv) Evidence of propensity or psychiatric or psychological assessment of one of the parties is unlikely to be of any assistance in . .
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 by:
Cited – A Local Authority v S and W and T By her Guardian FD 27-May-2004
A child had died. The father was accused and acquitted of murder by way of shaken baby syndrome. The local authority persisted with an application for care orders for the other children.
Held: ‘I do not claim to have divined truth. I have . .
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 – Lancashire County Council v R (A Minor) and others FD 4-Dec-2008
The local authority sought a care order, alleging serious physical abuse of the child. The mother said that any injuries had been inflicted by the father. The father said that the cause was the mother.
Held: The injuries were not likely to . .
Cited – In re L (A Child: Media Reporting) FD 18-Apr-2011
The local authority had intervened on suspecting physical abuse. L was placed with the maternal grandmother who took L to Ireland before care proceedings were commenced. The Irish court found him to have been wrongfully removed, and orders were made . .

Lists of cited by and citing cases may be incomplete.

Children, Evidence

Leading Case

Updated: 01 November 2021; Ref: scu.196767

The Commissioner of Police of the Metropolis v A local Authority, X, Y and Z (Disclosure To The Security Service): FD 6 Oct 2016

Care proceedings statement disclosed to MI5

The court had decided to permit the Local Authority to disclose the mother’s statement made to them in care proceedings to the Police imposing certain additional restrictions. The Police now applied for permission to disclose the statement further to the Security Service. There was concern that the father of the child may be fighting in Syria and that the mother would follow him with the child.
Held: The application was granted. The court noted that the security services were not a ‘person’ identified within the family proceedings rules and that therefore it was for the Commissioner to justify the proposal. The court imposed conditions.
When deciding as to such onward disclosure of documents, the court should consider seeral factors including the welfare of the child and of any other children, the balance of confidentiality and frankness in children’s cases, the public interest in the administration of justice, the prosecution of serious crime and punishment of offenders, the gravity of the alleged offence and relevance of the evidence to it, the desirability of co-operation between various agencies concerned with the welfare of children, and the protection against the admissibility in criminal proceedings of statements of admission made in proceedings under the Children Act 1989, and any human rights issues, and impose any necessary conditions.

MacDonald J
[2016] EWHC 2400 (Fam), [2016] 4 WLR 153, [2016] WLR(D) 509
Bailii, WLRD
Family Proceedings Rules 12.73(1)(b)
England and Wales

Police, Human Rights, Children

Updated: 01 November 2021; Ref: scu.570172

In re P and Q (Children: Care Proceedings: Fact Finding): FC 19 Mar 2015

pandQFC201503

The mother and her partner had accused many people of the satanic ritual abuse of her children. The children had since retracted their complaints.
Held: The complaints by the children had been prompted and manufactured by the mother’s partner and the mother. None of the allegations, after substantial and careful investigation, were proved true. The mother and her partner had caused immense harm to both the children and the many people they had falsely accused, and had made that damage continuing by the publication, in probable contempt of court, of many details about the case. Those persisting with the allegations were acting either maliciously or foolishly.
Pauffley J summarised her conclusions: ‘Neither child has been sexually abused by any of the following – RD, teachers at CP School H. the parents of students at that school, the priest at the adjacent church, teachers at any of the H or H schools, members of the Metropolitan Police, social workers employed by the London Borough of X, officers of Cafcass or anyone else mentioned by Ms D or Mr C.
The children’s half brother, his father and stepmother – X and Y D – are likewise exonerated of any illicit or abusive acts involving the children.
There was no satanic or other cult at which babies were murdered and children were sexually abused.
All of the material promulgated by Ms Draper now published on the internet is nothing other than utter nonsense.
The children’s false stories came about as the result of relentless emotional and psychological pressure as well as significant physical abuse. Torture is the most accurate way to describe what was done by Mr C in collaboration with Ms D.
Both children were assaulted by Mr C by being hit with a metal spoon on multiple occasions over their head and legs, by being pushed into walls, punched, pinched and kicked. Water was poured over them as they knelt semi-clothed.
The long term emotional and psychological harm of what was done to the children is incalculable. The impact of the internet campaign is likely to have the most devastating consequences for P and Q.’

Pauffley J
[2015] EWFC 26
Bailii
Citing:
Cited – In In Re T (Abuse: Standard of Proof) CA 19-May-2004
Dame Elizabeth Butler-Sloss P said that in abuse cases, evidence: ‘cannot be evaluated in separate compartments. A judge in these difficult cases has to have regard to the relevance of each piece of evidence to other evidence and to exercise an . .
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 – In re W (Children) (Family proceedings: Evidence) (Abuse: Oral Evidence) SC 3-Mar-2010
The court considered the approach to be taken when considering whether to order a child’s attendance at court in care proceedings. It was argued that the starting point of assuming that a child should not attend, failed to respect the human right to . .

Lists of cited by and citing cases may be incomplete.

Children, News

Updated: 01 November 2021; Ref: scu.544927

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 to Northern Ireland against the grandmother’s wishes. The court was now asked what was meant by ‘rights of custody’ within the conventions: ‘Is it to be interpreted strictly and literally as a reference to rights which are already legally recognised and enforceable? Or is it to be interpreted purposively as a reference to a wider category of what have been termed ‘inchoate rights’, the existence of which would have been legally recognised had the question arisen before the removal or retention in question? ‘
Held: The phrase ‘rights of custody,’ in articles 3 and 5(a) of the 1980 Convention and in article 2(9)(11) of the 2003 Council Regulation did not refer only rights which had already been legally recognised and were enforceable as such. The phrase was to be interpreted purposively, and as such would include reference to wider ‘inchoate rights’, the existence of which would have been legally recognised if the matter had arisen before the particular act of removal or retention in question.

Lady Hale, Deputy President, Lord Kerr, Lord Clarke, Lord Wilson, Lord Hughes
[2014] UKSC 29, [2014] 2 WLR 1304, [2014] WLR(D) 218, [2014] 2 FLR 629, UKSC 2014/0093, [2014] Fam Law 943, [2014] 1 AC 1401, [2014] NI 315, [2014] 2 FCR 231, [2014] 3 All ER 149
Bailii, Bailii Summary, WLRD, SC, SC Summary
Hague Convention on the Civil Aspects of International Child Abduction, Brussels II Revised Regulation
Northern Ireland
Citing:
Cited – 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 . .
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 . .
See also – 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. . .
Appeal from – 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 . .

Lists of cited by and citing cases may be incomplete.

Children, International

Leading Case

Updated: 01 November 2021; Ref: scu.526194

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 the 1998 Act was to abolish the entire doctrine of doli incapax, or only the presumption of its application.
Held: The appeal failed: ‘the trial judge and the Court of Appeal were correct to hold that section 34 abolished the defence of doli incapax.’ The words used in the section were not themselves capable of deciding the issue. The phraseology used in the works preparatory to the 1998 Act and the debates (not entirely consistently) recognised the distinction between abolition the presumption alone and abolishing the defence entirely, and amendments to preserve the defence without the presumption had been rejected.

Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood, Lord Mance
[2009] UKHL 20, (2009) 173 JP 289, [2009] AC 1310, [2009] 2 Cr App Rep 13, [2009] 3 All ER 1, [2009] Crim LR 581, [2009] 2 WLR 1088
Bailii
Children and Young Persons Act 1933, Crime and Disorder Act 1998 34
England and Wales
Citing:
Cited – Regina v Gorrie 1918
Salter J directed the jury in the criminal trial of a child that the prosecution had to satisfy them that when the boy who was accused committed the act charged ‘he knew that he was doing what was wrong – not merely what was wrong, but what was . .
Appeal from – 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 – JM (A Minor) v Runeckles QBD 1984
Mann J considered the conditions for criminal responsibility in a child under 14 and said: ‘I would respectfully adopt the learned judge’s use of the phrase ‘seriously wrong’. I regard an act which a child knew to be morally wrong as being but one . .
Cited – 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 . .
Cited – IPH v Chief Constable of South Wales QBD 1987
The 11 year old defendant joined others in smashing the windows of a motor van, scraping its paintwork and pushing it into a post. He appealed his conviction for malicious damage.
Held: The conviction was quashed. There had been no evidence . .
Cited – C (A Minor) v Director of Public Prosecutions QBD 30-Mar-1994
The 12 year old defendant held the handlebars of a motorcycle allowing a second boy to try to remove the chain and padlock securing it. He appealed against his conviction.
Held: The presumption of doli incapax for a 10-14 year old child is no . .
Cited – C (A Minor) v Director of Public Prosecutions HL 17-Mar-1995
The House considered whether the long established rule of the criminal law presuming that a child did not have a guilty mind should be set aside.
Held: Doli incapax, the presumption of a child’s lack of mens rea, is still effective and good . .
Cited – 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 . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Jackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
Cited – Crown Prosecution Service v P; Director of Public Prosecutions v P Admn 27-Apr-2007
The prosecutor appealed a grant of a stay of a prosecution of the 13 year old defendant as an abuse of process. Reports had indicated that he was unfit to plead. The prosecution contended that, if the court thought P ought not to face trial by . .

Lists of cited by and citing cases may be incomplete.

Crime, Children

Updated: 01 November 2021; Ref: scu.341608

A Local Authority v B (Dispensing With Service): FD 19 Oct 2020

Power to Dispense with Service

Welfare of B, who is 17 years of age. B was born biologically female but now identifies as male – the local authority seeks relief under the inherent jurisdiction of the High Court in respect of B, namely a declaration authorising the deprivation of B’s liberty. B’s mother is M. She appears before the court in person. At this hearing the local authority applies for an order permitting it to dispense with service of the proceedings on the father of B. It remains unclear whether the father has parental responsibility for B, he not being named on B’s birth certificate but having been described in previous proceedings as having parental responsibility for B.
Held: Service was dispensed with. The new rules empowered the court to dispense with service of any document which was to be served in proceedings.

Mr Justice MacDonald
[2020] EWHC 2741 (Fam), [2020] WLR(D) 606
Bailii, WLRD
Family Proceedings Rules 1991 4.8(8), Family Proceedings Rules 2010 6.36
England and Wales

Children, Litigation Practice

Updated: 01 November 2021; Ref: scu.655298

Ali v United Kingdom: ECHR 11 Jan 2011

The applicant had been excluded from school after a fire for which he was suspected pending completion of the police enquiry, which extended beyond the maximum allowed. Though the investigation was completed with no action against him, the scholl continued the exclusion until a meeting, but when the parents did not attend, his name was removed from the school register. When several months later the father requested his re-instatement, the place had been re-allocated. The House of Lords had not upheld his complaint.
Held: The applicants Protocol 1 article 2 rights had not been violated. Ali’s exclusion had been proportionate to the legitimate aim pursued and had not interfered with his right to education. The right to education under the Convention comprised access to an educational institution as well as the right to obtain, in conformity with the rules in each State, official recognition of the studies completed. Any restriction imposed on it had to be foreseeable for those concerned and pursue a legitimate aim. At the same time, the right to education did not necessarily entail the right of access to a particular educational institution and it did not in principle exclude disciplinary measures such as suspension or expulsion in order to comply with internal rules. The exclusion had originally been in accordance with the law, and, had the parents responded, the applicant’s education could have been resolved much more quickly, and they had refused alternate education on his behalf.

Mijovic P
40385/06
ECHR
European Convention on Human Rights P1.2
Human Rights
Citing:
At first instance – Ali v Head and Governors of Lord Grey School QBD 27-Jun-2003
The claimant had been expelled from school unlawfully, and now sought damages for the breach of his right to an education.
Held: The claimant had received and had refused appropriate offers of alternate schools. The duty was imposed generally . .
At Court of Appeal – Ali v The Head Teacher and Governors of Lord Grey School CA 29-Mar-2004
The student had been unlawfully excluded from school. The school had not complied with the procedural requirements imposed by the Act.
Held: Though the 1996 Act placed the responsibilty for exclusion upon the local authority, the head and . .
At House of Lords – Ali v Head Teacher and Governors of Lord Grey School HL 22-Mar-2006
The claimant had been accused with others of arson to school property. He was suspended for the maximum forty five day period. The school then invited the family to discuss arrangements to return to the school, but the family did not attend. After . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Children, Education

Leading Case

Updated: 01 November 2021; Ref: scu.511024

Stodgell v Stodgell FD: FD 18 Jul 2008

The parties were involved in ancillary relief proceedings. At the same time the husband was in prison after having hidden earnings from his business, and was subject to an unsatisfied confiscation order. The guardian had had doubts about the mother’s suitability to have full responsibility for the care of their 11 year old son. The revenue contended that the matter should not be delayed so that the confiscation order could be enforced.
Held: The fraudulent activities of the husband did constitute conduct which it would be inequitable to disregard within the meaning of paragraph (g). He has brought shame upon himself, despair to the wife, and destroyed the economy of this family. However the family needs in this case could not be given priority over the duty to satisfy the confiscation order: the court cannot protect every child from every consequence of their parents’ behaviour.

Holman J
[2008] EWHC 1925 (Fam)
Bailii
Matrimonial Causes Act 1973 25(g)
England and Wales
Citing:
Cited – H M Customs and Excise and Another v MCA and Another; A v A; Re MCA CA 22-Jul-2002
The husband and wife divorced and a property adjustment order applied for. The husband had been convicted and a drugs proceeds order made under the 1994 Act. The order had not been satisfied, and the receiver applied for money from the matrimonial . .
Cited – The Serious Fraud Office v Lexi Holdings Plc CACD 10-Jul-2008
Application was made for the variation of a restraint order made under the 2002 Act to enable payment to be made to a judgment creditor in advance of any confiscation order being made, or indeed before any criminal charges had even been preferred. . .
Cited – In re Peters CA 1988
After the defendant was arrested for drugs offences a restraint order was made to prevent dissipation of his assets. Orders were made to vary the restraint to allow payment of his sons school fees, and in family proceedings for a payment to his . .

Cited by:
See Also – Stodgell v Stodgell Admn Admn 18-Jul-2008
The court heard divorce ancillary relief applications against the background of an impending criminal confiscation order against the husband. . .

Lists of cited by and citing cases may be incomplete.

Family, Children

Updated: 01 November 2021; Ref: scu.276702

Doncaster Metropolitan Borough Council v Haigh: FD 22 Aug 2011

The Council sought to have certain aspects of a care application put into the public domain which would normally have remained private. Application was also made (by the father and the child) for an order restricting the right of the mother to make further applications for a period.
Held: Contact had been offered to the mother but she had declined. The court had twice investigated allegations against the father by the mother of sexual abuse of X. Those allegations had been found to be fabrications by the mother. The mother had persisted and made public her allegations through a Mrs Watson who had then been found guilty of contempt. The guardian, initially opposed to publicity had decided, given the mother’s campaign of misinformation, that the facts should be made public. A document was attached to the judgment for this purpose.
Wall P said: ‘this is a wholly exceptional case. What the child and her father need above all is a period of respite from litigation. The mother recently applied for an emergency protection order. It was dismissed by the local Justices, with an order for costs made against her. It had, however, to be dealt with and no doubt caused considerable disruption. I am, therefore, entirely satisfied that an order under s.91(14) is justified, appropriate and proportionate. The mother is not prevented by it from negotiating contact with the local authority. If she has a reasonable application to be placed before the court, she will be heard. Thus, although the order represents a breach of her ECHR rights, I am satisfied that in the interests of X a respite of litigation is required and the order is proportionate.’

Sir Nicholas Wall P
[2011] EWHC B16 (Fam)
Bailii
Children Act 1989 91
England and Wales
Citing:
Cited – In re P (a Child) (Residence Order: A Child’s Welfare) CA 30-Apr-1999
The court considered an appeal against an order under section 91 to restrict further applications without the court’s prior consent. . .
Cited – In re L (A Child: Media Reporting) FD 18-Apr-2011
The local authority had intervened on suspecting physical abuse. L was placed with the maternal grandmother who took L to Ireland before care proceedings were commenced. The Irish court found him to have been wrongfully removed, and orders were made . .
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 – Clayton v Clayton CA 27-Jun-2006
The family had been through protracted family law proceedings and had been subject to orders restricting identification. The father now wanted to discuss his experiences and to campaign. He could not do so without his child being identified.
Cited – Re H (Freeing Orders: Publicity) CA 2005
Wall LJ said: ‘Cases involving children are currently heard in private in order to protect the anonymity of the children concerned. However, the exclusion of the public from family courts, and the lack of knowledge about what happens in them, easily . .
Cited – Pelling v Bruce-Williams, Secretary of State for Constitutional Affairs intervening CA 5-Jul-2004
The applicant sought an order that his application for a joint residence order should be held in public.
Held: Though there was some attractiveness in the applicant’s arguments, the issue had been fully canvassed by the ECHR. The time had come . .
Cited – B v The United Kingdom; P v The United Kingdom ECHR 2001
The provisions of rule 4.16(7) providing for confidentiality in children proceedings were Convention compliant: ‘such proceedings are prime examples of cases where the exclusion of the press and public may be justified in order to protect the . .

Lists of cited by and citing cases may be incomplete.

Children, Media

Updated: 01 November 2021; Ref: scu.444730

Article 218(11) TFEU – Convention On The Civil Aspects Of International Child Abduction (Opinions Of The Court): ECJ 14 Oct 2014

art218ECJ1410

ECJ Grand Chamber – Opinion – Opinion pursuant to Article 218(11) TFEU – Convention on the civil aspects of international child abduction – Accession of third States – Regulation (EC) No 2201/2003 – Exclusive external competence of the European Union – Risk of undermining the uniform and consistent application of EU rules and the proper functioning of the system which they establish

V. Skouris, P
Avis-1/13, [2014] EUECJ Avis-1/13
Bailii
TFEU 218(11), Regulation (EC) No 2201/2003, Convention On The Civil Aspects Of International Child Abduction

European, Children, International

Updated: 01 November 2021; Ref: scu.537603

In re B (Child Evidence): CA 22 Jul 2014

The father had sought contact with his son. The mother opposed contact saing that he had been violent. He now appealed agaist orders for the management of possible evidence from B’s elder sibling.

Richards, Black, Fulford LJJ
[2014] EWCA Civ 1015
Bailii
England and Wales

Children, Evidence

Updated: 01 November 2021; Ref: scu.535151

MAK and RK v The United Kingdom: ECHR 23 Mar 2010

mak_ukECHR10

When RK, a nine year old girl was taken to hospital, with bruises, the paediatrician wrongly suspecting sexual abuse, took blood samples and intimate photographs in the absence of the parents and without their consent.
Held: The doctor had acted in a way to infringe the child and the parent’s human rights in acting without parental consent. The child’s condition was not critical, and she was not in any pain or discomfort. Her condition was not deteriorating so as to require the intervention before her mother’s arrival. The Court could find no justification for taking the blood sample and intimate photographs against the express wishes of both parents, and while she was alone in the hospital.
The doctor’s failure to seek a dermatological diagnosis in accordance with recommendation several days additional delay and distress.
The applicant was not prevented from raising a point at the ECHR which could have been raised in the national court but had not been. The parents had been given no remedy for the failings of the doctors, and damages were awarded accordingly.
As to the withdrawal of Legal Aid, where it results in a restriction on the right of access to court, it will only be compatible with Article 6 – 1 if it is both pursuant to a legitimate aim and proportionate to that aim. The principle question for the Court is whether the restriction was legitimate and proportionate.

L Garlicki, President, and Judges Sir Nicolas Bratza, G. Bonello, L. Mijovic, J. Sikuta, M. Poalelungi and N. Vucinic
45901/05, [2010] ECHR 363, 40146/06, 28 BHRC 762, (2010) 51 EHRR 14, [2010] 2 FLR 451, (2010) 13 CCL Rep 241, [2010] Fam Law 582
Bailii, Times
European Convention on Human Rights 8 3, Family Reform Act 1969 8, Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine
Citing:
Appeal from – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Cited – Martin v Legal Services Commission Admn 27-Jul-2007
The claimant challenged by judicial review the discharge of a legal aid certificate in educational negligence proceedings.
Held: A final decision to revoke a legal aid certificate may be challenged by judicial review. . .
Cited – Tyrer v The United Kingdom ECHR 25-Apr-1978
Three strokes with a birch constituted degrading punishment for a 15-year-old boy, which violated article 3 having regard to the particular circumstances in which it was administered.
Preliminary objection rejected (disappearance of object of . .
Cited – 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 . .
Cited – Airey v Ireland ECHR 9-Oct-1979
Family law proceedings such as judicial separation do give rise to civil rights. In complex cases article 6 might require some provision for legal assistance, the precise form being a matter for the member state. The Court reiterated the importance . .
Cited – Ashingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .
Cited – RK and AK v The United Kingdom ECHR 18-Oct-2005
The applicants’ young child had been suspected of being the victim of physical abuse. After court proceedings the child was removed. In later proceedings and after being placed with an aunt, she was diagnosed as having brittle bone disease. In the . .
Cited – Prince Hans-Adam II of Liechtenstein v Germany ECHR 12-Jul-2001
Hudoc No violation of Art. 6-1; No violation of P1-1; No violation of Art. 14
Hudoc No violation of Art. 6-1; No violation of P1-1; No violation of Art. 14 . .
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 . .
Cited – Garcia Manibardo v Spain ECHR 15-Feb-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – claim rejected; Costs and expenses award – Convention proceedings
Limitations on a citizen’s right of access to the . .
Cited – Edificaciones March Gallego S A v Spain ECHR 19-Feb-1998
The right of access to the courts is not an absolute one,and may be properly subject to limitations. . .
Cited – Gasus Dosier-Und Fodertechnik Gmbh v The Netherlands ECHR 23-Feb-1995
Even where an interference in property rights involved the complete loss of a person’s economic interest in an asset for the benefit of the State, an absence of compensation might still be compatible with Article 1. ‘The Court recalls that the . .
Cited – Soering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
Cited – Del Sol v France ECHR 26-Feb-2002
. .
Cited – TP And KM v The United Kingdom ECHR 10-May-2001
The Grand Chamber found a violation of Articles 8 and 13 and awarded each applicant GBP 10,000 in respect of a separation which lasted a year. Article 8 imposes positive obligations of disclosure on a local authority involved in care proceedings: . .
Cited – Glass v The United Kingdom ECHR 9-Mar-2004
The applicant’s adult son was disabled. There was a disagreement with the hospital about his care. The hospital considered that to alleviate his distress, he should not be resuscitated. The family wanted to take him home, fearing euthanasia. The . .
Cited – YF v Turkey ECHR 22-Jul-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8 ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Children, Health Professions, Torts – Other

Updated: 01 November 2021; Ref: scu.403497

In re M and R (Child abuse: Expert Evidence): CA 21 May 1996

On an application for a care order the judge found there was a real possibility that sexual abuse had occurred but the evidence was not sufficient to prove the allegations to the requisite standard. The threshold criteria were met on another ground. The children had suffered emotional harm at the hands of the mother and her partner and were likely to suffer significant harm in the future. He made an interim care order and adjourned the case to consider whether to return the children to the mother and her partner. The local authority appealed against the judge’s refusal to make a care order, saying the judge had erred by not taking the allegations of sexual abuse into account at the welfare stage.
Held: In part, it would be extraordinary if Parliament intended that, in one and the same case, evidence insufficient to satisfy section 31(2)(a) should be sufficient nevertheless to satisfy section 1(3)(e). The court drew attention to the unsatisfactory results which could follow in practice were this so. The 1972 Act made expert opinion on the ultimate issue admissible, giving effect in section 3 to the 1970 Report of the Law Reform Committee on Evidence of Opinion and Expert Evidence that ‘a statement by an expert witness … shall not be inadmissible upon the ground only that it expressed his opinion on the issue in the proceedings …’. Appeal dismissed.

Butler-Sloss, Henry and Saville LJJ
[1996] 2 FLR 195, [1996] 4 All ER 239, [1996] EWCA Civ 1317, [1996] Fam Law 541, [1996] 2 FCR 617
Bailii, Bailii
Children Act 1989 31(2)(a) 1(3)(e), Civil Evidence Act 1972 3
England and Wales
Cited by:
Cited – In re O and N (Minors); In re B (Minors) (Care: Preliminary hearing) HL 3-Apr-2003
The appeals were from conflicting decisions in care applications where one or other or both parents were guilty of lack of care, but there was no evidence to say which was responsible.
Held: The threshold criteria had been met, and the court . .
Cited – Designers Guild Limited v Russell Williams (Textiles) Limited PatC 14-Jan-1998
The defendant denied that it had copied the plaintiff’s designs.
Held: There was sufficient evidence of copying. It was wrong to dissect a work, but rather the court should look at the matter as a whole. . .
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 – In re S-B (Children) (Care proceedings: Standard of proof) SC 14-Dec-2009
A child was found to have bruising consistent with physical abuse. Either or both parents might have caused it, but the judge felt it likely that only one had, that he was unable to decide which, and that they were not so serious that he had to say . .

Lists of cited by and citing cases may be incomplete.

Children, Evidence

Leading Case

Updated: 01 November 2021; Ref: scu.180422

ZM v JM; Re M (children) (fact-finding hearing: burden of proof); In re M (a Child) (Non-accidental injury: Burden of proof): CA 19 Nov 2008

When a court considered which of two parents might be responsible for a non-accidental injury to their child, what the court cannot do is decide that one parent is the perpetrator but that the other parent cannot be excluded as the perpetrator. Counsel had not brought to the attention of the court when applying for leave, the court’s failure to provide a clear judgement.
Held: The Emery Reimbold case applied equally in children cases, and counsel should act accordingly.

Sir Mark Potter, President, Lady Justice Arden and Lord Justice Wall
[2008] EWCA Civ 1261, [2008] All ER(D) 187, [2009] Fam Law 283, [2009] 1 FLR 1177
Bailii, Times
Children Act 1989
England and Wales
Citing:
Cited – English v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .
Cited – In re T (a Child) (Contact: Alienation: Permission to Appeal) CA 24-Oct-2002
After a judgment the parties sought to appeal.
Held: The judge had failed to make a finding on a critical issue in the case, namely whether or not the mother of the child concerned had ‘even if prompted only at a subconscious level, . .

Cited by:
Cited – Lancashire County Council v R (A Minor) and others FD 4-Dec-2008
The local authority sought a care order, alleging serious physical abuse of the child. The mother said that any injuries had been inflicted by the father. The father said that the cause was the mother.
Held: The injuries were not likely to . .

Lists of cited by and citing cases may be incomplete.

Children

Updated: 01 November 2021; Ref: scu.278314

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 found some evidence to suggest that sexual abuse had taken place, the judge had been concerned not to transfer the burden of proof.
Held: The House declined to depart from In re H and to overrule re M and R. The task of the local authority in carrying out an investigation differs from that of the court which is ‘to hear the evidence put forward on behalf of all the parties to the case and to decide, first, whether the threshold criteria are met and, second, what order if any will be best for the child.’
The balance of probabilities remains the sole and simple test and standard of proof. That test is not qualified by the seriousness of the allegation. The court should have instructed the expert that it ‘was not satisfied that the allegations were true, [and] they cannot form the basis for asserting that there is a current risk of the same type of harm occurring in the future.’ Inherent probabilities must be assessed in the light of the actual circumstances of the case.
Lord Hoffmann said: ‘If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened. ‘
and ‘the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not.’
and ‘There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence of the relationship between parent and child or parent and other children. ‘
Baroness Hale of Richmond said: ‘if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge is able to make up his mind where the truth lies without needing to rely upon the burden of proof. ‘ and
‘The threshold is there to protect both the children and their parents from unjustified intervention in their lives. It would provide no protection at all if it could be established on the basis of unsubstantiated suspicions: that is, where a judge cannot say that there is no real possibility that abuse took place, so concludes that there is a real possibility that it did. In other words, the alleged perpetrator would have to prove that it did not.’ and
‘the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies. ‘ and ‘there is no logical or necessary connection between seriousness and probability’

Lord Hoffmann, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond
[2008] UKHL 35, [2008] 2 FLR 141, [2009] 1 AC 11, [2008] 3 WLR 1, [2008] Fam Law 837, [2008] 2 FCR 339, [2008] Fam Law 619, [2008] 4 All ER 1
Bailii, HL
Children Act 1989 31(2)
England and Wales
Citing:
Mentioned – Davis v Davis 1950
. .
Cited – Bater v Bater CA 1951
The wife petitioned for divorce, alleging cruelty.
Held: It had not been a misdirection for the petitioner to have to prove her case beyond reasonable doubt: ‘A high standard of proof’ was required because of the importance of such a case to . .
Cited – Khera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department HL 10-Feb-1983
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal . .
Cited – 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 . .
Cited – Hornal v Neuberger Products Ltd CA 1956
Proof Standard for Misrepresentation
The court was asked what was the standard of proof required to establish the tort of misrepresentation, and it contrasted the different standards of proof applicable in civil and criminal cases.
Held: The standard was the balance of . .
Cited – In re LU (A Child); In re LB (A Child) (Serious Injury: Standard of Proof); re U (A Child) (Department for Education and Skills intervening) CA 14-May-2004
In each case, the other parent appealed care orders where she had been found to have injured her children. In each case the sole evidence was the injury to the child’s health and expert medical evidence. The cases were referred following the . .
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 – In re O and N (Minors); In re B (Minors) (Care: Preliminary hearing) HL 3-Apr-2003
The appeals were from conflicting decisions in care applications where one or other or both parents were guilty of lack of care, but there was no evidence to say which was responsible.
Held: The threshold criteria had been met, and the court . .
Cited – In re M and R (Child abuse: Expert Evidence) CA 21-May-1996
On an application for a care order the judge found there was a real possibility that sexual abuse had occurred but the evidence was not sufficient to prove the allegations to the requisite standard. The threshold criteria were met on another ground. . .
Cited – 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 . .
Cited – In re D; Doherty, Re (Northern Ireland); Life Sentence Review Commissioners v D HL 11-Jun-2008
The Sentence Review Commissioners had decided not to order the release of the prisoner, who was serving a life sentence. He had been released on licence from a life sentence and then committed further serious sexual offences against under-age girls . .

Cited by:
Cited – Birmingham City Council v Shafi and Another CA 30-Oct-2008
The Council appealed a finding that the court did not have jurisdiction to obtain without notice injunctions to control the behaviour of youths said to be creating a disturbance, including restricting their rights to enter certain parts of the city . .
Cited – Lancashire County Council v R (A Minor) and others FD 4-Dec-2008
The local authority sought a care order, alleging serious physical abuse of the child. The mother said that any injuries had been inflicted by the father. The father said that the cause was the mother.
Held: The injuries were not likely to . .
Cited – Cheltenham Borough Council v Laird QBD 15-Jun-2009
The council sought damages saying that their former chief executive had not disclosed her history of depressive illness when applying for her job.
Held: The replies were not dishonest as the form could have been misconstrued. The claim failed. . .
Cited – In re S-B (Children) (Care proceedings: Standard of proof) SC 14-Dec-2009
A child was found to have bruising consistent with physical abuse. Either or both parents might have caused it, but the judge felt it likely that only one had, that he was unable to decide which, and that they were not so serious that he had to say . .
Cited – Savva, Regina (on The Application of) v Royal Borough of Kensington and Chelsea Admn 11-Mar-2010
The claimant challenged the defendant’s policies on caring for elderly people within the community saying that it provided insufficient funds, and the procedures for review were inadequate and infringed her human rights. . .
Cited – The Solicitor for the Affairs of HM Treasury v Doveton and Another ChD 13-Nov-2008
The claimant requested the revocation of a grant of probate to the defendant. They had suspicions about the will propounded and lodged a caveat which was warned off and the grant completed. In breach of court orders, the defendant had transferred . .
Cited – London Borough of Lewisham v D and Others FD 29-Mar-2010
Lewisham_dFD10
The local authority was investigating allegations involving the family history of children in their care. They sought disclosure by the respondent police authority of the results DNA comparison tests to assist their investigations. The court . .
See Also – In re L (A Child: Media Reporting) FD 18-Apr-2011
The local authority had intervened on suspecting physical abuse. L was placed with the maternal grandmother who took L to Ireland before care proceedings were commenced. The Irish court found him to have been wrongfully removed, and orders were made . .
Cited – Thornton v Telegraph Media Group Ltd QBD 26-Jul-2011
The claimant alleged defamation and malicious falsehood in an article published and written by the defendants. She complained that she was said to have fabricated an interview with the second defendant for her book. An interview of sorts had now . .
Cited – Doncaster Metropolitan Borough Council v Haigh FD 22-Aug-2011
The Council sought to have certain aspects of a care application put into the public domain which would normally have remained private. Application was also made (by the father and the child) for an order restricting the right of the mother to make . .
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 – 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, . .
Cited – London Borough Council v K and Others FD 12-Apr-2010
The parents disputed contact for the children. The children then made allegations of very serious sex abuse against the father. A police investigation resulted in no action, it being said that the children had been coached to make false allegations . .
Cited – Braganza v BP Shipping Ltd and Others CA 22-Mar-2013
The claimant widow sued in negligence after the disappearance overboard of her husband from the respondent’s ship. The court had found insufficient evidence to establish the cause of death, either as to negligence as suggested by the claimant, or as . .
Cited – re G (A Child) CA 8-Apr-2014
McFarlane LJ said: ‘In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then . .
Cited – Braganza v BP Shipping Ltd SC 18-Mar-2015
The claimant’s husband had been lost from the defendant’s ship at sea. The defendant had contracted to pay compensation unless the loss was by suicide. They so determined. The court was now asked whether that was a permissible conclusion in the . .
Cited – In re P and Q (Children: Care Proceedings: Fact Finding) FC 19-Mar-2015
pandQFC201503
The mother and her partner had accused many people of the satanic ritual abuse of her children. The children had since retracted their complaints.
Held: The complaints by the children had been prompted and manufactured by the mother’s partner . .
Cited – Re EV (A Child) SC 1-Mar-2017
Appeal from application for permanence order. EV had been in care from her birth. Her parents, each with long standing learning difficulties opposed the order.
Held: The Court allowed the parents’ appeals. The meeting of the threshold test was . .

Lists of cited by and citing cases may be incomplete.

Children, Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.268807

Ogundimu (Article 8 – New Rules) Nigeria: UTIAC 8 Feb 2013

UTIAC 1 The expectation is that it will be an exceptional case in which permission to appeal to the Upper Tribunal should be granted where the lodging of the application for permission is more than 28 days out of time. Where, in such a case, a judge is minded to grant permission, the preferable course is to provide an opportunity to the respondent to make representations. This might be achieved by listing the permission application for oral hearing.
2 The introduction of the new Immigration Rules (HC 194) does not affect the circumstance that when considering Article 8 of the Human Rights Convention ‘for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in [this] country very serious reasons are required to justify expulsion.’ The principles derived from Maslov v Austria [2008] ECHR 546 are still be applied.
3 Paragraph 399(a) of the Immigration Rules conflicts with the Secretary of State’s duties under Article 3 of the UN Convention on the Rights of the Child 1989 and section 55 of the Borders, Citizenship and Immigration Act 2009. Little weight should be attached to this Rule when consideration is being given to the assessment of proportionality under Article 8 of the Human Rights Convention.
4 The natural and ordinary meaning of the word ‘ties’ in paragraph 399A of the Immigration Rules imports a concept involving something more than merely remote or abstract links to the country of proposed deportation or removal. It involves there being a connection to life in that country. Consideration of whether a person has ‘no ties’ to such a country must involve a rounded assessment of all of the relevant circumstances and is not to be limited to ‘social, cultural and family’ circumstances.

Blake J P, O’Connor UTJ
[2013] UKUT 60 (IAC)
Bailii
Borders, Citizenship and Immigration Act 2009 55, UN Convention on the Rights of the Child 1989 2, Immigration Rules 399(a), European Convention on Human Rights 8
England and Wales
Citing:
Cited – Maslov v Austria ECHR 23-Jun-2008
(Grand Chamber) The applicant came lawfully to Austria when 6. He committed a large number of offences when he was 14 and 15, and had been sentenced to imprisonment. He complained of a later decision to deport him.
Held: The court said: ‘ The . .
Cited – Julius v Lord Bishop of Oxford and Another HL 23-Mar-1880
A statute enacted that with regard to certain charges against any Clerk in Holy Orders it ‘shall be lawful’ for the Bishop of the diocese ‘on the application of any party complaining thereof’ to issue a commission for enquiry.
Held: The words . .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, Children

Updated: 01 November 2021; Ref: scu.470863