Category: Children

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, their complaints are about the care system. The case also raises important questions about how the court should adapt its practice to the realities of the internet, and in particular social media. ‘
Held: Munby J summarised the principles governing the publication of information relating to family proceedings, which principles apply to both to the question of publication of a judgment and the determination of the application for a reporting restriction order: ‘What may be called the ‘automatic restraints’ on the publication of information relating to proceedings under the Children Act 1989 are to be found in s 97 of that Act and s 12 of the Administration of Justice Act 1960. Section 97 prohibits the publication of ‘material which is intended, or likely, to identify’ the child. But this prohibition comes to an end once the proceedings have been concluded . . Section 12 does not protect the identity of anyone involved in the proceedings, not even the child . . just as in the case of experts, there is no statutory protection for the identity of either a local authority or its social workers.
The court has power both to relax and to add to the ‘automatic restraints’. In exercising this jurisdiction the court must conduct the ‘balancing exercise’ described in Re S (Identification: Restrictions on Publication) [2004] UKHL 47 . . This necessitates what Lord Steyn . . called ‘an intense focus on the comparative importance of the specific rights being claimed in the individual case’. There are, typically, a number of competing interests engaged, protected by Arts 6, 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the European Convention). . . it is ‘necessary to measure the nature of the impact . . on the child’ of what is in prospect. Indeed, the interests of the child, although not paramount, must be a primary consideration, that is, they must be considered first though they can, of course, be outweighed by the cumulative effect of other considerations . .’

Judges:

Sir James Munby P

Citations:

[2013] EWHC 2694 (Fam), [2014] 1 FLR 523

Links:

Bailii

Statutes:

Administration of Justice Act 1960 12, Children Act 1989 97, European Convention on Human Rights 6 8 10

Jurisdiction:

England and Wales

Citing:

Cited – Attorney General v Guardian Newspapers Ltd (No.1) HL 13-Aug-1987
A retired secret service officer intended to publish his memoirs through the defendant. The house heard an appeal against a temporary injunction restraining publication.
Held: Lord Bridge delivered his dissenting speech in the case of . .

Cited by:

Cited – H v A (No2) FD 17-Sep-2015
The court had previously published and then withdrawn its judgment after third parties had been able to identify those involved by pulling together media and internet reports with the judgment.
Held: The judgment case should be published in . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Media, Children

Updated: 24 October 2022; Ref: scu.515544

F v F: FD 5 Sep 2013

Application by F for a declaration and a specific issue order concerning his daughters L and M, who are now 15 years and 11 years respectively. He seeks an order that they both receive the MMR vaccination. This is opposed by their mother,

Citations:

[2013] EWHC 2683 (Fam), [2014] FLR 1328, [2014] Fam Law 29, (2014) 136 BMLR 105

Links:

Bailii

Jurisdiction:

England and Wales

Children

Updated: 24 October 2022; Ref: scu.516467

AA (Somalia) v Entry Clearance Officer – Addis Ababa: CA 1 May 2012

A child sought entry clearance as a de facto adopted child of his sponsor who had accepted status of refugee.
Held: The changes to the Immigration rules did not extend those rules beyond application to natural and adopted children so far as de facto adopted children.
Notwithstanding the grant of entry clearance under article 8, the appeal was not academic: ‘The answer provided is that if entry is permitted under the Immigration Rules the entitlement of AA to remain thereafter will in effect align with the sponsor’s entitlement, whereby indefinite leave to remain can be expected to be granted after the expiry of the five-year period: whereas grant of leave to remain under article 8 is discretionary and not necessarily so linked to the sponsor’s position.’

Judges:

Arden, Toulson, Davis LJJ

Citations:

[2012] WLR(D) 134, [2013] 1 WLR 268, [2012] 3 FCR 96, [2013] INLR 85, [2012] 3 All ER 893, [2012] Imm AR 858, [2012] EWCA Civ 563

Links:

Bailii, WLRD

Statutes:

Immigration Rules 309A, European Convention on Human Rights 8

Jurisdiction:

England and Wales

Cited by:

Appeal from – AA v Entry Clearance Officer (Addis Ababa) SC 18-Dec-2013
The appellant child, AA sought entry as the de facto adopted child of his sponsor who had previously been given refugee status. The sponsor had taken parental responsibility of AA under the Islamic Kafala procedure. AA had been admitted under human . .
Lists of cited by and citing cases may be incomplete.

Immigration, Children, Human Rights

Updated: 23 October 2022; Ref: scu.454043

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 transmitted HIV/Aids to him by having unprotected sex but hiding her HIV status.
Held: The order should be made. The trial would be likely to arouse considerable local interest. There were fears for the children if their own possible HIV status became known. The approach in in Re Z had now been superceded by human rights law. It was significant that in this case there remained a prospect that an order would be effective, since publicity to date would not allow the identity of the child to become widely known.
Sir Mark Potter said: ‘The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity in that neither article has precedence over or ‘trumps’ the other. The exercise of parallel analysis requires the courts to examine the justification of interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical exercise to be decided upon the basis of rival generalities. An intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary before the ultimate balancing test in terms of proportionality is carried out. Having so stated, Lord Steyn strongly emphasised the interest in open justice as a factor to be accorded great weight in both the parallel analysis and the ultimate balancing test.’

Judges:

Sir Mark Potter President

Citations:

[2005] EWHC 1564 (Fam), Times 21-Jul-2005, [2006] 1 FLR 1, [2014] EMLR 7

Links:

Bailii

Statutes:

European Convention on Human Rights 8, Contempt of Court Act 1981, Supreme Court Act 1981 45

Jurisdiction:

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 – 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 – Botta v Italy ECHR 24-Feb-1998
The claimant, who was disabled, said that his Article 8 rights were infringed because, in breach of Italian law, there were no facilities to enable him to get to the sea when he went on holiday.
Held: ‘Private life . . includes a person’s . .
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 – 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 – British Broadcasting Corporation v Kelly FD 9-Aug-2000
The interview for television of a child ward of court who had gone to live with members of a religious sect was not necessarily a contempt of court. There are three groups of ways in which a ward’s interests can be protected. First where the . .
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 – 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 – 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 – 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 – 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 – 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 by:

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 – 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 – LM, Re (Reporting Restrictions; Coroner’s Inquest) FD 1-Aug-2007
A child had died. In earlier civil proceedings, the court had laid responsibility with the mother. Restrictions had been placed on the information which would effectively prevent the coroner conducting his inquest. The coroner sought a lifting of . .
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 – 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 . .
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 – 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 . .
Cited – Regina v Croydon Crown Court ex parte Trinity Mirror Plc; In re Trinity Mirror plc CACD 1-Feb-2008
An order had been made protecting the identity of a defendant who pleaded guilty to possessing indecent images of children. The order was made in the interests of his own children, although they had been neither witnesses in the proceedings against . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Children, Criminal Practice, Media

Updated: 23 October 2022; Ref: scu.229275

In re K (Children) (Non-accidental injuries: Perpetrator: New Evidence): CA 27 Aug 2004

The children had been taken into care, and freed for adoption. The mother appealed saying the blame for non-accidental injury was misplaced. The court had not thought her responsible for the non-accidental injuries, but she had been unwilling to separate from the assumed perpetrator.
Held: The mother had now taken the step of breaking free. The substantial public interest in identifying the true causers of child abuse required the admission of the evidence, and children should also have the truth available to them. On the facts justice required the question of perpetration to be re-visited. The final outcome remained at large.
‘It is paradigmatic of such cases that the perpetrator denies responsibility and that those close to or emotionally engaged with the perpetrator likewise deny any knowledge of how the injuries occurred. Any process, which encourages or facilitates frankness, is, accordingly, in our view, to be welcomed in principle.’

Judges:

Lord Justice Neuberge, Lord Justice Wall

Citations:

[2004] EWCA Civ 1181, [2005] 1 FLR 285

Links:

Bailii

Statutes:

Children Act 1989 31(2)

Jurisdiction:

England and Wales

Citing:

Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
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 – 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 – Frost v Frost CA 1968
Admission of new evidence on appeal in family matters. . .
Cited – Re S (Minors)(Care Order: Appeal); Dyfed County Council v S, Re S (Discharge of Care Order) CA 6-Sep-1995
Discharge of care order is the appropriate procedure not an appeal after very long time. The court considered its approach in admitting new evidence on appeal in family law cases: ‘The willingness of the family jurisdiction to relax the ordinary . .

Cited by:

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

Updated: 23 October 2022; Ref: scu.200655

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 be involved. ‘the present case is seen not as some significant novelty requiring guidance from this court but as a standard section 8 application which has attracted a great deal of publicity.’ It is not a general requirement of section 8 applications that expert evience must be brought. The judge’s assessment of the evidence given was conscientious and comprehensive, and the applications had been decided by applying the paramount consideration of the welfare of the two children concerned. ‘Not to mince words, the court below was presented with junk science. ‘ The appeal failed.

Judges:

Thorpe LJ, Sedley LJ, Sir Anthony Evans

Citations:

[2003] EWCA Civ 1148, [2003] 73 BMLR 152, [2003] 2 FLR 1095, [2003] 2 FCR 156

Links:

Bailii

Statutes:

Children Act 1989 8

Jurisdiction:

England and Wales

Citing:

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 – 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.
Cited – In Re J (A Minor) (Prohibited Steps Order: Circumcision) CA 22-Dec-1999
Where there was a dispute between parents as to the necessity or propriety of circumcising a child, it was appropriate that the court should be involved to make the decision. Such decisions were vital to the child’s upbringing and irreversible. Here . .
Cited – In Re T (A Minor) (Wardship: Medical Treatment) CA 24-Oct-1996
A baby boy who was 18 months old, suffered from a life-threatening liver defect. His parents were health-care professionals experienced in the care of sick children. The unanimous medical view was that as soon as donor liver became available the . .

Cited by:

Cited – Regina (Burke) v General Medical Council Admn 30-Jul-2004
The applicant, suffering a life threatening disease, wanted to ensure his continued treatment and revival in the circumstance of losing his own capacity. He said the respondent’s guidelines for doctors were discriminatory and failed to protect his . .
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 – 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 – 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 . .
Lists of cited by and citing cases may be incomplete.

Children, Health

Updated: 23 October 2022; Ref: scu.184896

H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings): CA 30 Mar 2021

Four appeals each of which involves an allegation of domestic abuse by one parent against the other – whether, where domestic abuse is alleged in proceedings affecting the welfare of children, the focus should in some cases be on a pattern of behaviour as opposed to specific incidents.

Judges:

The President of the Family Division, Lady Justice King and Lord Justice Holroyde

Citations:

[2021] EWCA Civ 448

Links:

Bailii, Judiciary

Jurisdiction:

England and Wales

Children

Updated: 22 October 2022; Ref: scu.660762

G (Minors): CA 15 Jul 1997

The court had decided that the care plan proposed for the children should be accepted. This was for a long term placement with foster parents, and in due course, no doubt would lead to adoption. Both parents had suffered psychiatric problems. The mother sought continued contact with the children, with a view to a long term rehabilitation with her. Repeated attempts had been made for this, and there was evidence of psychological abuse.
Held: Contact was properly terminated where a permanent placement was anticipated, and continued contact would be disruptive of that process. The order had been made properly, and could not be set aside.

Judges:

Lord Justice Butler-Sloss, Lord Justice Morland

Citations:

[1997] EWCA Civ 2101

Statutes:

Children Act 1989 34

Jurisdiction:

England and Wales

Children

Updated: 21 October 2022; Ref: scu.142498

A Metropolitan Borough Council v JJ and Another: FD 9 May 2003

Issues about the rights and duties of children’s guardians in care proceedings under Part IV of the Children Act 1989, with particular reference to the guardian’s right to examine and take copies of local authority documentation under CA 1989 section 42. It also raises the question of the duty of local authorities to impart information relating to the child in question to the child’s parents, the guardian and the court.

Judges:

Mr Justice Wall

Citations:

[2003] EWHC 976 (Fam)

Links:

Bailii

Statutes:

Children Act 1989 42

Jurisdiction:

England and Wales

Children

Updated: 20 October 2022; Ref: scu.235736

Regina v Hampshire County Council ex parte H: Admn 17 Nov 1997

Citations:

[1997] EWHC Admin 1020, [1999] 2 FLR 359

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Hampshire County Council Ex Parte H and Another CA 22-Jun-1998
Before a child’s name can be entered on a local authority’s ‘at risk’ register something more must be shown than general risk of living in stressed family and something directed to the particular child must be shown. . .
Cited – L, Regina (on the Application of) v Commissioner of Police of the Metropolis Admn 19-Mar-2006
The court considered the duties on the respondent in providing an enhanced criminal record certificate. In one case, the claimant had brought up her son who was made subject to child protection procedures for neglect. Her job involved supervising . .
Lists of cited by and citing cases may be incomplete.

Children, Local Government

Updated: 17 October 2022; Ref: scu.137965

Regina (CD and ADR) v Secretary of State for the Home Department: QBD 17 Jan 2003

The applicant challenged the decision to separate her from her child whilst she was in prison.
Held: such a separation engaged her article 8 Human Rights, and she must be allowed representation when a decision was made. The Prison Service should call in appropriate experts in deciding what were the child’s needs, the effect of separation, and the proportionality of the intended act to the need.

Judges:

Maurice Kay J

Citations:

Times 27-Jan-2003, [2003] EWHC 155 (Admin), [2003] 1 FLR 979

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

England and Wales

Cited by:

Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Lists of cited by and citing cases may be incomplete.

Prisons, Children, Human Rights

Updated: 13 October 2022; Ref: scu.178704

G v G: SC 19 Mar 2021

This appeal concerns the relationship of the 1980 Hague Convention (the ‘1980 HC’) to asylum law. The 1980 HC is an international agreement incorporated into UK law which enables the prompt return of a wrongfully abducted child to his or her country of habitual residence.
(1) Does a child named as a dependent on a parent’s asylum application have any protection from refoulement?
(2) Can a return order be made under the 1980 Hague Convention even where a child has protection from refoulement?
(3) Should the High Court be slow to stay an application under the 1980 Hague Convention prior to determination of an application for asylum?

Judges:

Lord Lloyd-Jones, Lord Hamblen, Lord Leggatt, Lord Burrows, Lord Stephens

Citations:

[2021] UKSC 9

Links:

Bailii, Bailii Summary, Bailii Issue and Facts

Statutes:

Child Abduction and Custody Act 1985, Council Directive 2005/85/EC, Council Directive 2004/83/EC, Convention and Protocol relating to the Status of Refugees

Jurisdiction:

England and Wales

Citing:

Appeal from – Re G (A Child : Child Abduction) CA 15-Sep-2020
. .
Lists of cited by and citing cases may be incomplete.

Children, Immigration, European

Updated: 12 October 2022; Ref: scu.660051

Re G (A Child : Child Abduction): CA 15 Sep 2020

Judges:

Hickinbottom, Moylan, Peter Jackson LJJ

Citations:

[2020] EWCA Civ 1185, [2020] WLR(D) 505

Links:

Bailii, WLRD

Statutes:

Child Abduction and Custody Act 1985

Jurisdiction:

England and Wales

Cited by:

Appeal from – G v G SC 19-Mar-2021
This appeal concerns the relationship of the 1980 Hague Convention (the ‘1980 HC’) to asylum law. The 1980 HC is an international agreement incorporated into UK law which enables the prompt return of a wrongfully abducted child to his or her country . .
Lists of cited by and citing cases may be incomplete.

Children, Immigration

Updated: 12 October 2022; Ref: scu.653894

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 could look for a parallel in criminal cases in the Taylor case. However this must be exceptional. The danger was real, but this is sadly a necessary part of every social worker’s professional life, as it was for others. The consequences to the parents were just as dire as would be a criminal conviction. Social workers must see this as a professional hazard, and the judge had been wrong to accede to the request.

Judges:

Thorpe, LJ Body J

Citations:

Times 01-Nov-2002, [2002] EWCA Civ 1626, [2003] 1 FLR 329, [2003] 1 FLR 329

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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

Children

Updated: 11 October 2022; Ref: scu.177837

EG v JG: Misc 1 Dec 2013

(Willesden County Court) The mother applied for a specific issues order regarding the education of four children of the family and as to whether they should be taught in schools supporting strict Jewish Hassidic sect.

Judges:

Million J

Citations:

[2013] EW Misc 21 (CC)

Links:

Bailii

Statutes:

Children Act 1989 8

Jurisdiction:

England and Wales

Children, Education

Updated: 11 October 2022; Ref: scu.518928

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 applicants) had separated for a short time.
Held: The time limit might be extended.
Sir James Munby said: ‘Section 54 goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who his parents are. It is central to his being, whether as an individual or as a member of his family. As Ms Isaacs correctly puts it, this case is fundamentally about Xs identity and his relationship with the commissioning parents. Fundamental as these matters must be to commissioning parents they are, if anything, even more fundamental to the child. A parental order has, to adopt Theis J’s powerful expression, a transformative effect, not just in its effect on the child’s legal relationships with the surrogate and commissioning parents but also, to adopt the guardian’s words in the present case, in relation to the practical and psychological realities of X’s identity. A parental order, like an adoption order, has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences.’
Given the importance of the issue for the child, the court is bound to adopt a more lenient approach than in Adesina.

Judges:

Sir James Munby P FD

Citations:

[2014] EWHC 3135 (Fam), [2015] 1 Fam 186, [2015] 2 WLR 745, [2015] 1 FLR 349, [2014] Fam Law 1681, [2014] WLR(D) 410, [2015] 1 FAM 186

Links:

Bailii, WLRD

Statutes:

Human Fertilisation and Embryology Act 2008 54(1)(c)

Jurisdiction:

England and Wales

Citing:

Cited – Howard v Bodington Carc 27-Feb-1877
Imperative or Directory Statutory Requirements
The court considered the consequences of a failure to comply with a statutory requirement.
Held: The distinction drawn between statutory requirements which were ‘imperative’ on the one hand and ‘directory’ on the other involved unfortunate use . .
Cited – In re X and Y (Foreign Surrogacy) FD 9-Dec-2008
The court considered the approval required for an order under the 2002 Act.
Held: Welfare considerations were important but not paramount: ‘Given the permanent nature of the order under s.30, it seems reasonable that the court should adopt the . .
Cited – In Re S (Parental Order) FD 2009
Hedley J considered a Californian surrogacy arrangement in which USD $23,000 was paid.
Held: Hedley J considered the issue of authorisation in respect of a payment for a commercial surrogacy arrangement and set out further the approach the . .
Cited – Regina v Soneji and Bullen HL 21-Jul-2005
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . .
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 – Dharmaraj v London Borough of Hounslow CA 24-Jan-2011
The claimant challenged the respondent’s finding that he had been intentionally homeless and therefore not entitled to emergency housing assistance. He said that the Authority had failed to comply with the required procedure.
Held: Toulson LJ . .
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 – G v G (Parental Order; Revocation) FD 11-May-2012
The commissioning father of a child born through a surrogacy agreement made an application for the revocation of a parental order on the grounds that, first, the order had been wrongly made by reason of numerous procedural defects and, secondly, it . .
Cited – Lukaszewski v The District Court In Torun, Poland SC 23-May-2012
Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .
Distinguished – Adesina and Others, Regina (on The Application of) v The Nursing and Midwifery Council CA 9-Jul-2013
The court was asked as to the effect of a statutory provision stating that an appeal to the High Court from the Nursing and Midwifery Council ‘must be brought before the end’ of a specified period of 28 days. There was no express provision . .
Cited – In re A and B (Parental Order: Domicile) FD 14-Feb-2013
. .
Cited – J v G FD 26-Mar-2013
Application for a parental order under the 2008 Act following a surrogacy arrangement in California, USA using IVF. . .
Cited – Re C (A Child), AB v DE FD 15-May-2013
Application for a parental order in relation to a child C born in 2012 under section 54 of the 2008 Act 2008. A parental order had been made, and the judge now gave his reasons. C was conceived through IVF treatment in Moscow, with the First . .
Cited – Newbold and Others v The Coal Authority CA 23-May-2013
Appeal by the Coal Authority against an order declaring that notices of subsidence damage were valid damage notices for the purposes of section 3 of the 1991 Act.
Held: Sir Stanley Burnton said: ‘In all cases, one must first construe the . .
Cited – Khakh v Independent Safeguarding Authority CA 6-Nov-2013
The 2006 Act provided that the judge in the Crown Court ‘must inform the person at the time he is convicted’ that his name would be included on the statutory barring lists. The judge had failed to do so. The claimant objjcted to the inclusion of his . .
Cited – In re WT (A Child) FD 4-Mar-2014
Theis J said: ‘A parental order application has to be made within six months of the child’s birth. There is no power vested in the court to extend that period.’ . .
Cited – JP v LP and Others FD 5-Mar-2014
Applications were made for orders under section 8 after and informal surrogacy arrangement. The child was now 33 weeks old.
Held: King J said: ‘When the matter came before the High Court it was agreed by all parties . . s54(3) says that the . .
Cited – Kroon And Others v The Netherlands ECHR 27-Oct-1994
Neither marriage nor living together were necessarily a requirement for establishing family ties, exceptionally other factors may . . serve to demonstrate that a relationship has sufficient constancy to create de facto ‘family ties’. The . .
Cited – Re J (Adoption: Non-Patrial) CA 1998
The court considered an adoption in Pakistan which was valid in Pakistan but would not be recognised here. The natural father and the adoptive father were from the same family. The adoptive parents were unable to have a children of their own, and . .

Cited by:

Cited – In re D (a Child) FD 31-Oct-2014
The two parents sought to challenge a decision that their child should be taken into care. Each parent had learning difficulties, but their income though small precluded the grant of legal aid. They wished to appeal against final care orders, but . .
Cited – Whittington Hospital NHS Trust v XX SC 1-Apr-2020
A negligent delay in the diagnosis of her cancer left the clamant dependent on paid for surrogacy arrangements. Three issues were raised; could damages to fund surrogacy arrangements using the claimant’s own eggs be recovered? Second, if so, could . .
Cited – Whittington Hospital NHS Trust v XX SC 1-Apr-2020
A negligent delay in the diagnosis of her cancer left the clamant dependent on paid for surrogacy arrangements. Three issues were raised; could damages to fund surrogacy arrangements using the claimant’s own eggs be recovered? Second, if so, could . .
Lists of cited by and citing cases may be incomplete.

Children

Leading Case

Updated: 11 October 2022; Ref: scu.537335

A and Another v C and Another: FC 11 Jul 2016

Reasons for making parental orders – children aged 12 and 13

Judges:

Theis DBE J

Citations:

[2016] EWFC 42, [2017] 2 FLR 101, [2016] Fam Law 1225

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Whittington Hospital NHS Trust v XX SC 1-Apr-2020
A negligent delay in the diagnosis of her cancer left the clamant dependent on paid for surrogacy arrangements. Three issues were raised; could damages to fund surrogacy arrangements using the claimant’s own eggs be recovered? Second, if so, could . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 11 October 2022; Ref: scu.570447

In re X and Y (Foreign Surrogacy): FD 9 Dec 2008

The court considered the approval required for an order under the 2002 Act.
Held: Welfare considerations were important but not paramount: ‘Given the permanent nature of the order under s.30, it seems reasonable that the court should adopt the ‘lifelong’ perspective of welfare in the Adoption and Children Act 2002 rather than the ‘minority’ perspective of the Children Act 1989. On the other hand, given that there is a wholly valid public policy justification lying behind s.30 (7), welfare considerations cannot be paramount but, of course, are important’.
Hedley J commented that ‘no specific reason can be ascertained’ for the time limit in section 30(2) of the 1990 Act, and said: ‘Section 30(2) provides for a non-extendable time limit of 6 months from the date of birth for the issuing of the parental order application. This has been complied with in this case, but it is noteworthy that apparently there is no power to extend though no specific reason can be ascertained for that. That may especially cause problems where immigration issues have led to delay.’
Hedley J said: ‘I feel bound to observe that I find this process of authorisation most uncomfortable. What the court is required to do is to balance two competing and potentially irreconcilably conflicting concepts. Parliament is clearly entitled to legislate against commercial surrogacy and is clearly entitled to expect that the courts should implement that policy consideration in its decisions. Yet it is also recognised that as the full rigour of that policy consideration will bear on one wholly unequipped to comprehend it let alone deal with its consequences (ie the child concerned) that rigour must be mitigated by an application of a consideration of that child’s welfare. That approach is both humane and intellectually coherent. The difficulty is that it is almost impossible to imagine a set of circumstances in which by the time the case comes to court, the welfare of any child (particularly a foreign child) would not be gravely compromised (at the very least) by a refusal to make an order. Bracewell J’s decision in Re AW (Adoption Application) [1993] 1 FLR 909 is but a vivid illustration of the problem. If public policy is truly to be upheld, it would need to be enforced at a much earlier stage than the final hearing of a section 30 application. In relation to adoption this has been substantially addressed by rules surrounding the bringing of the child into this country and by the provision of the Adoption with a Foreign Element Regulations 2005. The point of admission to this country is in some ways the final opportunity in reality to prevent the effective implementation of a commercial surrogacy agreement. It is, of course, not for the court to suggest how (or even whether) action should be taken. I merely feel constrained to point out the problem.’
Considering section 30(7) of the 1990 Act, Hedley J said: ‘The statute affords no guidance as to the basis, however, of any such approval. It is clearly a policy decision that commercial surrogacy agreements should not be regarded as lawful; equally there is clearly recognition that sometimes there may be reasons to do so. It is difficult to see what reason Parliament might have in mind other than the welfare of the child under consideration. Given the permanent nature of the order under Section 30, it seems reasonable that the court should adopt the ‘lifelong’ perspective of welfare in the Adoption and Children Act 2002 rather than the ‘minority’ perspective of the Children Act 1989. On the other hand, given that there is a wholly valid public policy justification lying behind Section 30(7), welfare considerations cannot be paramount but, of course, are important. That approach accords with that adopted in the previous cases and also accords with the approach adopted towards the authorising of breaches of the adoption legislation. A particularly vivid example of this can be found in the judgment of Bracewell J in Re AW (Adoption Application) [1993] 1FLR 62. There the court was concerned in particular with serious (and indeed dishonest) breaches of Section 29 of the Adoption Act 1976 yet in the final striking of the balance between public policy considerations and the welfare of the child concerned the judge nevertheless made an interim adoption order.
In relation to the public policy issues, the cases in effect suggest (and I agree) that the court poses itself three questions:
was the sum paid disproportionate to reasonable expenses?
were the applicants acting in good faith and without ‘moral taint’ in their dealings with the surrogate mother?
were the applicants’ party to any attempt to defraud the authorities?’

Judges:

Hedley J

Citations:

[2008] EWHC 3030 (Fam), [2009] 2 WLR 1274, [2009] 2 FCR 312, [2009] 1 FLR 733, [2009] Fam Law 115

Links:

Bailii

Statutes:

Adoption and Children Act 2002, Children Act 1989, Human Fertilisation and Embryology Act 1990 30(7)

Jurisdiction:

England and Wales

Cited by:

Cited – Re IJ (A Child) (Foreign Surrogacy Agreement Parental Order) FD 19-Apr-2011
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 . .
Approved – In re X and Y (Parental Order: Retrospective Authorisation of Payments) FD 6-Dec-2011
An application had been made for parental orders under section 57. The children X and Y had been born in India under surrogacy arrangements involving payments which were lawful in India, but which went beyond what could be paid.
Held: The . .
Cited – D and L (Minors Surrogacy), Re FD 28-Sep-2012
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 – 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 . .
Cited – Whittington Hospital NHS Trust v XX SC 1-Apr-2020
A negligent delay in the diagnosis of her cancer left the clamant dependent on paid for surrogacy arrangements. Three issues were raised; could damages to fund surrogacy arrangements using the claimant’s own eggs be recovered? Second, if so, could . .
Lists of cited by and citing cases may be incomplete.

Children

Leading Case

Updated: 11 October 2022; Ref: scu.347369

CGM v Luton Council: Admn 23 Mar 2021

The claimant sought permission to challenge the defendant’s failure to seek from the High Court (a) an authorisation to deprive his daughter NM of her liberty and (b) consequential annual reviews by a judge of her confinement. The defendant denies that NM is deprived of her liberty.

Judges:

Mr Justice Mostyn

Citations:

[2021] EWHC 709 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Local Government, Children

Updated: 08 October 2022; Ref: scu.659910