HB v PB: FD 9 Jul 2013

Claim for costs against third party local authority, Croydon LBC after four day private law fact finding hearing.

Cobb J
[2013] EWHC 1956 (Fam), [2013] PTSR 1579, [2016] 1 FLR 92, [2015] Fam Law 371, [2013] 5 Costs LR 738, [2013] 3 FCR 318, [2013] Fam Law 1258
Bailii
Children Act 1989, Family Procedure Rules 2010
England and Wales

Costs, Children

Updated: 06 December 2021; Ref: scu.512445

In re A (A Minor) (Care Proceedings): FD 2 Jan 1993

It was again argued that ‘likely’ meant more probable than not.
Held: The argument was not open to the appellants in the light of Newham London Borough Council.

Thorpe J
[1993] 1 FLR 824
Children Act 1989 31(2)(a)
England and Wales
Citing:
AppliedNewham London Borough Council v Attorney-General CA 1993
The court rejected an argument that ‘likely to suffer significant harm’ in the subsection was to be equated with ‘on the balance of probabilities’. . .

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

Lists of cited by and citing cases may be incomplete.

Children

Updated: 06 December 2021; Ref: scu.416040

Regina v Secretary of State for Health, Ex Parte Lally: QBD 26 Oct 2000

Tight restrictions had been placed on the circumstances under which children might visit prisoners in high security hospitals who were seen to be a risk to them having been convicted of murder or similar or who were schedule 1 offenders. The restrictions were valid, since they always allowed visits where a court had ordered contact, and there was no clear line to be drawn between different classes of convicted murderers. Contact was to be assessed in accordance with the child’s best interests, and breaks in contact with remoter family members such as nephews and nieces, need not be considered interference with family life.

Times 26-Oct-2000
European Convention on Human Rights
England and Wales

Children, Human Rights, Family

Updated: 29 November 2021; Ref: scu.85486

Joyce v Joyce: FD 16 May 2013

Orders had been made for the return of three boys by the father to ther mother in Ireland. F had failed to comply with three earlier orders. M now said that he was in contempt.
Held: ‘ it is quite clear that it is a case that has raised strong emotions and that the father is very opposed to the children returning to the mother in Ireland; further that his cooperation with the court process has been partial, leaving it really up to the boys to say ‘no’, and standing behind that. What has to be understood, when children are sent back to jurisdictions from which they have been wrongly removed, is that proceedings can still take place in that other court whereby, if it is in their interests, the children can be given permission to depart from that jurisdiction and go to a different jurisdiction and carer. That is all this case is about. It is not making a final decision as to where they should live. It is just deciding which court should take the decision. I have observed the father carefully in court. I have formed the view that it is really inconceivable that he does not know where the children are. I am sure he does know where they are, or at least that he knows how they can be contacted and located. I did at the end of his evidence specifically direct that he tell me where they are and I find him to be in contempt in not giving the court the assistance which the court has required of him.’

Bodey J
[2013] EWHC 1353 (Fam)
Bailii
England and Wales

Children

Updated: 20 November 2021; Ref: scu.515535

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 Applicant’s sperm and eggs from an anonymous Russian donor. He was carried by a married Russian surrogate mother. She and her husband were the Respondents to this application.
Held: Theis J said: ‘His welfare needs would clearly not be met by the Respondents remaining his legal parents in this jurisdiction, when they are not so recognised in their own jurisdiction and have no intention of having any future parental role in C’s life. C’s future is in the long term care of the Applicants, they are his de facto legal parents and his welfare demands their relationship is given lifelong security which can only be achieved by making a parental order.’

Theis DBE J
[2013] EWHC 2413 (Fam)
Bailii
Human Fertilisation and Embryology Act 2008 54
England and Wales
Cited by:
CitedIn 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

Updated: 19 November 2021; Ref: scu.514449

M v F and H: FD 5 Jul 2013

The court considered the legal parentage of a child conceived after his mother (Ms M) met his biological father (Mr F) on an internet website where Mr F was advertising his services as an unpaid sperm donor. The central dispute between the mother and the father is whether the conception was the result of artificial insemination (as he says) or sexual intercourse (as she says). If conception was the result of sexual intercourse (known as natural intercourse or NI) Mr F will be the legal parent of the child, but if it was the result of artificial insemination (AI) the question of parentage depends on the effect of the Human Fertilisation and Embryology Act 2008.

Peter Jackson J
[2013] EWHC 1901 (Fam)
Bailii
Human Fertilisation and Embryology Act 2008
England and Wales

Children

Updated: 17 November 2021; Ref: scu.513770

Re L (a child) (Medical Treatment: Benefit): FD 1 Nov 2004

(Date)

Dame Elizabeth Butler Sloss
[2004] EWHC 2713 (Fam), [2005] 1 FLR 491
England and Wales
Citing:
ApprovedPortsmouth NHS Trust v Wyatt and others FD 7-Oct-2004
Charlotte Wyatt was born prematurely, and depended for day to day her life on medical support. Her doctors asked to be permitted not to resuscitate her again if she needed it. Her parents asked that she be given whatever chance was available for her . .

Cited by:
CitedWyatt v Portsmouth NHS Trust and Another FD 21-Apr-2005
Charlotte Wyatt had been born very premature and so severely disabled that her doctors sought and obtained an order that she should not be revived if she died. She had survived several months longer than expected and her parents had noticed . .
CitedWyatt and Another v Portsmouth Hospital NHS and Another CA 12-Oct-2005
The appellants’ daughter had been born with very severe disabilities. Her doctors obtained an order allowing them a discretion not to ventilate her to keep her alive if necessary. She had improved, but the family now sought leave to appeal an order . .

Lists of cited by and citing cases may be incomplete.

Children, Health

Updated: 15 November 2021; Ref: scu.226136

W v X (Jurisdiction In Matters of Parental Responsibility): ECJ 15 Feb 2017

Habitual Residence depends on child’s interests

ECJ Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction in matters of parental responsibility – Regulation (EC) No 2201/2003 – Articles 8 to 15 – Jurisdiction concerning maintenance obligations – Regulation (EC) No 4/2009 – Article 3(d) – Conflicting judgments given in the courts of different Member States – Child habitually resident in the Member State of residence of his mother – The courts of the father’s Member State of residence without jurisdiction to vary a decision that has become final which they adopted earlier concerning the residence of the child, maintenance obligations and contact arrangements

R. Silva de Lapuerta, P
[2017] WLR(D) 113, [2017] EUECJ C-499/15
Bailii, WLRD
Regulation (EC) No 2201/2003 8
European

Children, International

Updated: 11 November 2021; Ref: scu.579667

In re T (Children): SC 25 Jul 2012

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

Lord Phillips (President), Lady Hale, Lord Mance, Lord Dyson, Lord Carnwath
[2012] UKSC 36, UKSC 2010/0244, [2012] Fam Law 1325, [2012] 3 FCR 137, [2012] 5 Costs LR 914, [2012] PTSR 1379, [2012] WLR(D) 223, [2012] 1 WLR 2281
Bailii, Bailii Summary, SC Summary, SC
Family Procedure Rules 2010 (SI 2010/2955) 1.2
England and Wales
Citing:
CitedSutton London Borough Council v Davis (Number 2) FD 8-Jul-1994
The local authority had refused to register a childminder, who successfully appealed to the magistrates, who awarded costs in her favour. The local authority appealed against the costs order. In doing so the authority urged the court to apply, by . .
Appeal fromIn re T (A Child) CA 18-Nov-2010
Paternal grandparents appealed against a refusal to make an order for costs in their favour against the local authority. The refusal was made in the course of care proceedings brought by the local authority in relation to two grandchildren. The . .
CitedB (M) v B (R) (Note) CA 1968
The court suggested that it would have been wrong to make an order for costs in a custody dispute because it would exacerbate the feelings between the parents to the ultimate detriment of the child. . .
CitedGojkovic v Gojkovic (No 2) CA 1-Apr-1991
In ancillary relief proceedings, the husband had not made frank disclosure of his assets. The final Calderbank offer of andpound;600,000 was made only the day before the substantive hearing. The offer was rejected. The judge awarded the wife a lump . .
CitedIn re J (Children) (Costs of Fact-Finding Hearing) CA 26-Oct-2009
Mother and father disputed contact. The district judge held a fact finding hearing to resolve allegations of violence made by the mother and denied by the father. Most of the mother’s allegations were held to be established and she sought the costs . .
CitedIn Re M (A Minor) (Local Authority’s Costs) FD 9-Jan-1995
The local authority applied for permission to refuse contact between two children and their parents. The magistrates refused the application and ordered the local authority to pay the father’s costs. The authority appealed.
Held: The appeal . .
CitedR v R (Costs: Child Case); In re R (a Minor) CA 5-Dec-1996
The court analysed the reasons why costs orders were generally not made in cases involving children. . .
CitedIn re X, Y, Z (Minors) FD 18-May-2011
Costs on disputed care proceedings. Local Authority acting unreasonably in disclosure failings. Baker J rejected an application for costs against a local authority by an intervener who had been wholly exonerated in a fact finding hearing that was . .
CitedIn re R (Care: disclosure: nature of proceedings) FD 2002
In care proceedings, unproved allegations of harm were abandoned, before being rejected by the court. The threshold criteria were satisfied on a different ground, namely, neglect and emotional harm.
Held: As matters stood the local authority . .
CitedIn re X, (Emergency Protection Orders) FD 16-Mar-2006
Within two hours of a case conference which mentioned possible removal of children, but agreed other steps, the local authority applied for an emergency protection order, and forcibly removed the child from the family.
Held: The decision . .
CitedIn 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 . .
CitedManchester City Council v G and Others CA 2-Aug-2011
The Council had been found to have wrongfully deprived the applicant of his liberty. They appealed now against an award of costs made against them.
Held: The appeal failed. The judge the power to depart from the usual order made under rule 157 . .
CitedCoventry City Council v X, Y and Z (Care Proceedings: Costs: Identification of Local Authority) FD 27-Sep-2010
Order made for identification of local authority criticised in care proceedings and order for costs. . .
CitedG v E and Others FD 21-Dec-2010
(Court of Protection) Baker J awarded costs against a local authority which had been guilty of misconduct which, he held, justified departure from the general rule. He observed: ‘Parties should be free to bring personal welfare issues to the Court . .
CitedM v London Borough of Croydon CA 8-May-2012
The court considered the proper approach to the award of costs in judicial review proceedings.
Held: The position should be no different for litigation in the Administrative Court from what it is in general civil litigation. . .

Cited by:
CitedRe S (A Child) SC 25-Mar-2015
The Court was asked as to the proper approach to ordering the unsuccessful party to pay the costs of a successful appeal in cases about the care and upbringing of children. It arises in the specific context of a parent’s successful appeal to the . .

Lists of cited by and citing cases may be incomplete.

Children, Costs

Updated: 11 November 2021; Ref: scu.463147

Zouch, Ex Dimiss Abbot And Hallet v Parsons: 23 Nov 1765

Contract by Children for Necessities

Lord Mansfield said that: ‘miserable must the condition of minors be; excluded from the society and commerce of the world; deprived of necessaries, education, employment, and many advantages; if they could do no binding acts. Great inconvenience must arise to others, if they were bound by no act. The law, therefore, at the same time that it protects their imbecility and indiscretion from injury through their own imprudence, enables them to do binding acts, for their own benefit; and, without prejudice to themselves, for the benefit of others.’

Lord Mansfield
[1765] EngR 89, (1765) 3 Burr 1794, (1765) 97 ER 1103
Commonlii
England and Wales
Cited by:
CitedFisher v Brooker and Others HL 30-Jul-2009
The claimant sought a share in the royalties from the song ‘A whiter shade of pale’ but had delayed his claim for 38 years. He had contributed the organ solo which had contributed significantly to the song’s success. He now sought a share of future . .

Lists of cited by and citing cases may be incomplete.

Contract, Children

Leading Case

Updated: 11 November 2021; Ref: scu.373850

Lavida And Others v Greece: ECHR 30 May 2013

The case concerned the education of Roma children who were restricted to attending a primary school in which the only pupils were other Roma children.
Held: Violation of Article 14 (prohibition of discrimination) in conjunction with Article 2 of Protocol No. 1 (right to education)
The Court found that the continuing nature of this situation and the State’s refusal to take anti-segregation measures implied discrimination and a breach of the right to education.

7973/10 – Chamber Judgment (French Text), [2013] ECHR 488
Bailii
European Convention on Human Rights
Human Rights

Human Rights, Children, Discrimination, Education

Leading Case

Updated: 11 November 2021; Ref: scu.510736

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:
CitedScott 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 . .
CitedMoser 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 . .
CitedA 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 . .
CitedB 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 . .
CitedP 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 . .
CitedAllan 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 . .
CitedVon 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 . .
CitedRegina 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 . .
CitedC 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 . .
CitedIn 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 . .
CitedCampbell 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 . .
CitedHandyside 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

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:
CitedIn 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 alsoBritish 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 . .
CitedClayton 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.
CitedKent 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 alsoN (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. . .
CitedIn 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 . .
CitedIn 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 . .
CitedIn 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 . .
CitedIn 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 . .
CitedIn 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) . .
CitedRe 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 . .
CitedNiemietz 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 . .
CitedNorfolk 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 . .
CitedScott 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 . .
CitedBrown 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 . .
CitedRochdale 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 . .
CitedRegina 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 . .
CitedMedway 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. . .
CitedNorfolk 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 . .
CitedIn 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 . .
CitedMoser 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 . .
CitedIn 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 . .
CitedRe 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 . .
CitedIn 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. . .
CitedBritish 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 . .
CitedRe 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 . .
CitedRe 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 alsoDoctor 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:
CitedI 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 . .
CitedRegina (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 . .
CitedFriends 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 . .
CitedA, 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 . .
CitedAA, 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 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 AlsoRe 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 . .
CitedRe 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 . .
CitedIn 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 . .
CitedIn 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

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

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

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:
CitedAustin 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 . .
CitedTS, 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 . .
CitedLaporte, 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. . .
CitedAustin 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 . .
CitedRe 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 . .
CitedAustin 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 . .
CitedMoos 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. . .
CitedLumba (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 . .
CitedPieretti 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’. . .
CitedZH (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:
CitedNzolameso 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 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:
CitedWilliams 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 . .
CitedRegina 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. . .
CitedFessi 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. . .
CitedBorrows 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. . .
CitedIbuna 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. . .
CitedAnstey 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 . .
CitedCurtis 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 . .
CitedGillick 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 . .
CitedPublic 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 . .
CitedBurke, 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 . .
CitedHartshorne 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 . .
AppliedIn 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 . .
CitedTakamore 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 . .
CitedHughes 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:
CitedWinterwerp 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. . .
CitedJO 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

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:
CitedAB 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 . .
CitedWallersteiner 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 . .
CitedX 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

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:
CitedRegina 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. . .
CitedCarson 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 . .
CitedRegina 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 . .
CitedMalekshad 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 . .
CitedBishop 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 . .
CitedDouglas 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 . .
CitedAli 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 . .
CitedBegum, 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 . .
CitedMorris, 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 . .
CitedA 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 . .
CitedHooper 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 . .
CitedCarson, 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 . .
CitedKjeldsen, 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 . .
CitedCampbell 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 . .
CitedTimishev 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 . .
CitedAli 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 . .
CitedSecretary 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 . .
CitedAL (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 . .
CitedCountryside 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 . .
CitedMcDougal, 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 . .
CitedA 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 . .
CitedNicholas 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 . .
CitedTigere, 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 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:
CitedA 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. . .
CitedIn 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

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

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:
DistinguishedD’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 . .
CitedCases 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 . .
CitedRe 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 . .
CitedMarckx 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. . .
CitedZH (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 . .
CitedIn 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 . .
CitedIn 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 . .
CitedRegina 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 . .
CitedGhaidan 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 . .
CitedM 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 . .
CitedCases 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:
CitedIn 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 . .
CitedIn 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

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:
CitedRegina 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 . .
CitedC 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. . .
CitedZH (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 . .
CitedSuppiah 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.’ . .
CitedPiglowska 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 . .
CitedLM 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 . .
CitedCorner 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 . .
CitedV 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 . .
CitedC, 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 . .
CitedChief 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 . .
CitedRegina 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 . .
CitedH 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 . .
CitedRe 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 . .
CitedRegina 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 . .
CitedUlke 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 . .
CitedRegina (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 . .
CitedPretty 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 . .
CitedBensaid 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:
CitedSXH 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:
CitedBellenden (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 . .
CitedClarke-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 . .
CitedG 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 . .
CitedRe A (Family Proceedings: Expert Witnesses) FD 6-Feb-2001
. .

Cited by:
CitedChief 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

Axon, Regina (on the Application of) v Secretary of State for Health and Another: Admn 23 Jan 2006

A mother sought to challenge guidelines issued by the respondent which would allow doctors to protect the confidentiality of women under 16 who came to them for assistance even though the sexual activities they might engage in would be unlawful.
Held: A person under 16 who was otherwise competent was entitled to seek medical assistance, but a parent also had responsibility for her welfare. The court remained bound by the decision in Gillick, and indeed the subsequent adoption of the UN Convention would move the answer further in the direction of respecting a child’s wishes: ‘it would be wrong and not acceptable to retreat from Gillick and to impose greater duties on medical professionals to disclose information to parents of their younger patients.’ The claimant said that the direction infringed her rights to family life. The courts had recognised a move away from parental rights as such over children. There was no interference.
A doctor could provide medical advice and treatment provided that the child was capable properly of understanding all relevant matters, that the doctor tried to dissuade the child, that the child was likely to commence sexual activity whether or not assistance was given, and that the doctor felt it to be in her best interests for the advice and treatment to be given.

Silber J
[2006] EWHC 37 (Admin), Times 23-Jan-2006, [2006] 2 WLR 1130
Bailii
United Nations Convention on the Rights of a Child, European Convention on Human Rights 8
England and Wales
Citing:
BindingGillick 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 . .
CitedAttorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
CitedBritish American Tobacco UK Ltd and Others, Regina (on the Application of) v Secretary of State for Health Admn 5-Nov-2004
The claimants challenged the validity of regulations restricting cigarette advertisements, saying that greater exceptions should have been allowed, and that the regulations infringed their commercial right of free speech.
Held: The Regulations . .
CitedVo v France ECHR 8-Jul-2004
Hudoc Preliminary objection rejected (ratione materiae, non-exhaustion of domestic remedies) ; No violation of Art. 2
A doctor by negligence had caused the termination of a pregnancy at the 20 to 24 weeks . .
CitedRegina v Department of Health, Ex Parte Source Informatics Ltd CA 21-Dec-1999
Where information was given by a patient to the pharmacist, and he took the data, stripping out any possibility of the individual being identified, the duty of confidence which attached to the prescription was not breached by the passing on of the . .
CitedCampbell 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 . .
CitedVenables 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 . .
CitedYousef v The Netherlands ECHR 5-Nov-2002
In ‘judicial decisions where the rights under article 8 of parents and of a child are at stake, the child’s rights must be the paramount consideration.’ . .
CitedZ 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 . .
CitedMabon 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 . .
CitedHewer v Bryant CA 1970
The parental right to custody is: ‘a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.’
One . .
CitedX v Netherlands ECHR 1974
(Comission) A child asserted her right to live where she pleased.
Held: The state has an obligation to provide for its children to live with their parents in normal circumstances: ‘As a general proposition, and in the absence of any special . .
CitedRegina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
CitedMS v Sweden ECHR 27-Aug-1997
Hudoc Sweden – communication, without the patient’s consent, of personal and confidential medical data by one public authority to another and lack of possibility for patient, prior to the measure, to challenge it . .
CitedNielsen v Denmark ECHR 28-Nov-1988
The applicant, a minor, complained about his committal to a child psychiatric ward of a state hospital at his mother’s request. The question was whether this was a deprivation of his liberty in violation of article 5. The applicant said that it was, . .
CitedKjeldsen, 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 . .
CitedHandyside 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 . .
CitedThe Sunday Times (No 1) v The United Kingdom ECHR 26-Apr-1979
Offence must be ;in accordance with law’
The court considered the meaning of the need for an offence to be ‘in accordance with law.’ The applicants did not argue that the expression prescribed by law required legislation in every case, but contended that legislation was required only where . .
CitedK v United Kingdom ECHR 1986
(Commission) The existence of family ties depends upon ‘the real existence in practice of close family ties.’ . .
CitedSporrong and Lonnroth v Sweden ECHR 18-Dec-1984
Balance of Interests in peaceful enjoyment claim
An interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights. This balance is . .
CitedHendricks v Netherlands ECHR 1983
(Commission) In the context of article 8 the rights and freedoms of the child include his interests. ‘The Commission has consistently held that, in assessing the question of whether or not the refusal of the right of access to the non-custodial . .
CitedRegina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
CitedRegina 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 . .
CitedDe Freitas v The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others PC 30-Jun-1998
(Antigua and Barbuda) The applicant was employed as a civil servant. He joined a demonstration alleging corruption in a minister. It was alleged he had infringed his duties as a civil servant, and he replied that the constitution allowed him to . .
CitedHandyside 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 . .

Cited by:
CitedTB, Regina (on the Application of) v The Combined Court at Stafford Admn 4-Jul-2006
The claimant was the child complainant in an allegation of sexual assault. The defendant requested her medical records, and she now complained that she had been unfairly pressured into releasing them.
Held: The confidentiality of a patient’s . .

Lists of cited by and citing cases may be incomplete.

Health Professions, Children, Human Rights

Leading Case

Updated: 02 November 2021; Ref: scu.237844

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

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

Ruiz Zambrano (European Citizenship): ECJ 8 Mar 2011

ECJ Citizenship of the Union – Article 20 TFEU – Grant of right of residence under European Union law to a minor child on the territory of the Member State of which that child is a national, irrespective of the previous exercise by him of his right of free movement in the territory of the Member States – Grant, in the same circumstances, of a derived right of residence, to an ascendant relative, a third country national, upon whom the minor child is dependent – Consequences of the right of residence of the minor child on the employment law requirements to be fulfilled by the third-country national ascendant relative of that minor
A Colombian national who had been living in Belgium with his wife, and working (and paying social security contributions), but without a right to reside. Their three children, born between 2003 and 2005, acquired Belgian nationality at birth, and with it European citizenship and the right of free movement, under article 20 of the Treaty on the Functioning of the European Union (‘TFEU’). When in 2005 he lost his job, he was refused unemployment benefit, because under the relevant national law that depended on his having a right to reside. The European court held that the refusal of such a right was unlawful because it would result in the children being deprived of effective enjoyment of their rights as European citizens.

Skouris P
[2011] EUECJ C-34/09, C-34/09, [2011] All ER (EC) 491, [2011] 2 FCR 491, [2011] ECR I-1177, [2011] Imm AR 521, [2012] QB 265, [2011] INLR 481, ECLI:EU:C:2011:124, [2011] 2 CMLR 46, [2012] 2 WLR 886
Bailii
Charter of Fundamental Rights of the European Union, TFEU 20
European
Citing:
OpinionRuiz Zambrano (European Citizenship) ECJ 30-Sep-2010
ECJ Opinion – Articles 18, 20 and 21 TFEU – Fundamental rights as general principles of European Union law – Article 7 of the Charter of Fundamental Rights of the European Union – European citizenship – . .

Cited by:
CitedCampbell (Exclusion; Zambrano) Jamaica UTIAC 21-Mar-2013
UTIAC 1. Exclusion decisions are not be confused with exclusion orders.
2. It is settled law that the Secretary of State has the power to make an exclusion decision: see R (on the application of Naik) v . .
CitedNzolameso 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 . .
CitedAgyarko and Ikuga, Regina (on The Applications of) v Secretary of State for The Home Department SC 22-Feb-2017
Applications were made by foreign nationals, residing unlawfully in the UK, for leave to remain as the partners of British citizens with whom they had formed relationships during their unlawful residence, relying primarily on the duty imposed on the . .
CitedDereci and Others (European Citizenship) ECJ 15-Nov-2011
ECJ Grand Chamber – Citizenship of the Union – Right of residence of nationals of third countries who are family members of Union citizens – Refusal based on the citizen’s failure to exercise the right to freedom . .
CitedHC, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-Nov-2017
This appeal concerns the rights of so-called ‘Zambrano carers’ and their children to financial support from the state. The appellant, an Algerian national married and had children here, but was refused housing after the break up the marriage. HC . .
CitedSanneh, Regina (on The Application of) v Secretary of State for Work and Pensions Admn 30-Apr-2012
Challenge to payment of Zambrano Income Support . .
CitedDH (Jamaica) v Secretary of State for The Home Department CA 21-Dec-2012
Elias LJ said: ‘The right of residence is a right to reside in the territory of the EU. It is not a right to any particular quality of life or to any particular standard of living. Accordingly, there is no impediment to exercising the right to . .
CitedSanneh, Regina (on The Application of) v The Secretary of State for Work and Pensions and Another Admn 10-Apr-2013
. .
CitedSanneh and Others v Secretary of State for Work and Pensions CA 10-Feb-2015
The appeals concerned the question of whether ‘Zambrano carers’, who are non-EU citizens responsible for the care of an EU citizen child, are entitled to social assistance (that is, non-contributory welfare benefits) on the same basis as EU citizens . .
CitedSecretary Of State For The Home Department v CS (Judgment : Citizenship Of The Union) ECJ 13-Sep-2016
The Court of Justice held: ‘that there are very specific situations in which, despite the fact that the secondary law on the right of residence of third-country nationals does not apply and the Union citizen concerned has not made use of his freedom . .
CitedRendon Marin (Judgment : Citizenship Of The Union) ECJ 13-Sep-2016
ECJ (Grand Chamber) Reference for a preliminary ruling – Citizenship of the Union – Articles 20 and 21 TFEU – Directive 2004/38/EC – Right of a third-country national with a criminal record to reside in a Member . .

Lists of cited by and citing cases may be incomplete.

European, Immigration, Children

Leading Case

Updated: 02 November 2021; Ref: scu.452172

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:
CitedKent 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 . .
CitedJD 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 . .
CitedDoctor 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 . .
CitedDurham 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

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 of payments going beyond reasonable expenses.
Held: The order was made because it was clearly in the best interests of the child to do so. As to the making of an order under the Regulations as to the acquisition of British nationality under the Regulations, the practice has been first to give notice to the Home Office of the application. It need not always be the practice in these applications, because by necessity the Border Agency would normally have had some involvement already.

Hedley J
[2011] EWHC 921 (Fam), [2011] Fam Law 695, [2011] 2 FLR 646
Bailii
Human Fertilisation and Embryology Act 2008 54, Human Fertilisation and Embryology (Parental Orders) Regulations 2010
Citing:
CitedIn 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 . .
CitedRe W (A Minor) (Adoption: Non-Patrial) CA 1986
W was born in China to Chinese parents. His aunt came to Britain and acquired citizenship. He came to live with her while studying, and she applied to adopt him. The judge refused saying that the primary intention was to obtain citizenship.
CitedIn 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 by:
CitedA 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. . .

Lists of cited by and citing cases may be incomplete.

Children, Health

Updated: 02 November 2021; Ref: scu.439589

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 publishedLondon 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:
CitedSarker, 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:
CitedIn 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 . .
ApprovedBellenden (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 . .
ApprovedClarke-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 fromG 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:
CitedIn 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 . .
ApprovedTanfern 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 . .
CitedPiglowska 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 . .
CitedRe 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 . .
CitedMclouglin 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. . .
CitedAgulian 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: . .
CitedIn 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 . .
CitedDown 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 . .
CitedHill 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 . .
CitedAM 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 . .
CitedBrady 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 . .
CitedWhite 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 . .
CitedC 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. . .
CitedJackson 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

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:
CitedRe 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 . .
CitedRegina 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:
CitedPoel 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 . .
CitedA 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, . .
CitedChamberlain 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 . .
CitedLonslow 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 . .
CitedMoodey 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 . .
CitedNash 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.’ . .
CitedBelton 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 . .
CitedTyler 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 . .
CitedMH 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 . .
CitedDouglas, 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 . .
CitedGlaser 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 . .
CitedIn 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 . .
CitedIn 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 . .
CitedIn 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) . .
CitedIn 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. . .
CitedIn 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 . .
CitedIn 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: . .
CitedJohansen 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 . .
CitedDawson 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 . .
CitedL 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; . .
CitedIrene 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 . .
CitedIn Re N (Leave to withdraw care proceedings) 2000
. .
CitedIn Re A (Adoption: Mother’s Objections) 2000
. .
CitedJ 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 . .
CitedMH 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:
CitedIn 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 . .
CitedB (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-affirmedIn 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 . .
CitedIn 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 . .
CitedIn 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 . .
Citedin Re A (Leave to Remove: Cultural and Religious Consideration) FD 2006
. .
CitedIn re W (Children) CA 28-Jan-2009
. .
CitedETS 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 . .
CitedAM v IM ScSf 28-Jun-2008
. .
CitedAM v IM ScSf 28-Jun-2008
. .
CitedIn re X and Y FDNI 17-Aug-2005
. .
CitedIn re X NIHCM 23-Dec-2005
. .
CitedE 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 . .
CitedRe M (Children) CA 19-Oct-2007
. .
CitedRegina (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 . .
CitedIn 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. . .
CitedW v A CA 4-Nov-2004
. .
CitedEmma R v Edward R FD 10-Nov-2004
Mother’s application for residence order allowing the children to live with her in Paris. . .
AppliedIn 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

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 fromIn 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 . .
CitedRe 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 . .
CitedIn 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 . .
CitedLancashire 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 . .
CitedIn 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 . .
CitedIn 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 . .
CitedIn 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:
CitedRe 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 . .
CitedRe 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

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 fromC (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:
CitedRegina (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 . .
CitedLewin 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 . .
CitedRegina 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 . .
CitedDirector 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 . .
CitedRegina 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 . .
CitedCorner 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 . .
CitedJTB, 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

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:
CitedH 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 . .
CitedThe 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. . .
CitedIn 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 AlsoStodgell 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

C v M: ECJ 9 Oct 2014

ECJ (Judgment) Urgent preliminary ruling procedure – Area of freedom, security and justice – Judicial cooperation in civil matters – Regulation (EC) No 2201/2003 – Hague Convention of 25 October 1980 on the civil aspects of international child abduction – Concept of ‘habitual residence’ of a child following the divorce of its parents – Lawful removal of the child to another Member State – Wrongful retention
The French F had applied to the Irish Court for the return of children who had been taken to Ireland by M. There was an initial decision of the French court permitting relocation to Ireland, which had been appealed promptly. M had moved notwithstanding the pending appeal, a stay having been refused to F, and subsequently the French decision had been reversed by the appeal court. The Irish court was minded to find that the child had become at some stage habitually resident in Ireland, but referred several questions to the CJEU.
Held: (1) The initial removal to Ireland had not been wrongful, because of the then extant first instance decision permitting the move, (2) that the subsequent retention there after the French appellate decision might justify an order for return but (3) this would depend on whether by then the child was habitually resident in Ireland.
If habitual residence had by then been established in Ireland, there could be no order for return: ‘Article 11(1) of the Regulation [Brussels II Revised] . . provides that paragraphs 2-8 of that article are to apply where the holder of rights of custody applies to the competent authorities of a member state to deliver a judgment on the basis of the 1980 Hague Convention in order to obtain the return of a child that has been wrongfully removed or retained ‘in a member state other than the member state where the child was habitually resident immediately before the wrongful removal or retention’. It follows that this is not the case if the child was not habitually resident in the member state of origin immediately before the removal or retention.’

Maciej Szpunar AG
C-376/14, [2014] EUECJ C-376/14, [2014] EUECJ C-376/14 – V, [2015] 1 FAM 116, [2015] 1 FCR 496, [2015] CEC 686, ECLI:EU:C:2014:2268, [2015] 1 FLR 1, [2014] WLR(D) 415, [2014] Fam Law 1674, [2015] All ER (EC) 426, [2015] 2 WLR 59, [2015] ILPr 25
Bailii, Bailii, WLRD
Council Regulation (EC) No 2201/2003
European
Cited by:
CitedAR 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 . .
CitedRe 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 . .

Lists of cited by and citing cases may be incomplete.

Children

Updated: 01 November 2021; Ref: scu.537472

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 must next consider the welfare stage. Inability to identify the perpetrator is not always accompanied by a finding of failure to protect. One appeal was allowed and the other dismissed. In assessing risk the judge at the disposal hearing should have regard, to any failure by the mother to protect the child, that one is the more probable perpetrator, and that the mother might have been the perpetrator. In each case subsequent events were also relevant.
Baroness Hale said: ‘The court must first be satisfied that the harm or likelihood of harm exists. Once that is established, as it was in both the Lancashire and In re O cases, the court has to decide what outcome will be best for the child. It is very much easier to decide upon a solution if the relative responsibility of the child’s carers for the harm which she or another child has suffered can also be established. But the court cannot shut its eyes to the undoubted harm which has been suffered simply because it does not know who was responsible.’

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Millett, Lord Scott of Foscote, Lord Walker of Gestingthorpe
[2003] UKHL 18, Times 04-Apr-2003, Gazette 12-Jun-2003, [2003] 2 WLR 1075, [2003] 1 FCR 673, [2003] 1 FLR 1169, [2003] Fam Law 464, [2003] 2 All ER 305, [2004] 1 AC 523
House of Lords, Bailii
Children Act 1989 31
England and Wales
Citing:
Appeal fromRe B (Non-accidental injury: compelling medical evidence) CA 2002
A child had died. Care proceedings were begun for the elder child. It was not clear just who had been responsible for the death.
Held: There were two questions. First, who perpetrated the injuries recorded by the experts? The answer to that . .
Appeal fromRe O and N (Care: preliminary hearing) CA 2002
Care proceedings were commenced for one child after the death of a sibling, but without evidence as to which carer was responsible.
Held: It had not been established upon a balance of probabilities that any one or more of the injuries were . .
CitedIn 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 . .
DoubtedLancashire 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 . .
CitedRe B (minors) (Care proceedings: practice) FD 1999
Section 31 and its associated emergency and interim provisions comprise the only court mechanism available to a local authority to protect a child from risk. The interpretation of the ‘attributable’ condition adopted by the House of Lords is . .
CitedRe G (Care proceedings: split trials) CA 2001
In a situation where an application is made for a care order, and the threshold criteria are met, but the court cannot decide which carer is responsible, the preferable interpretation is that in such cases the court is able to proceed at the welfare . .
CitedIn 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. . .
CitedIn re R (Care: disclosure: nature of proceedings) FD 2002
In care proceedings, unproved allegations of harm were abandoned, before being rejected by the court. The threshold criteria were satisfied on a different ground, namely, neglect and emotional harm.
Held: As matters stood the local authority . .

Cited by:
Appealed toRe B (Non-accidental injury: compelling medical evidence) CA 2002
A child had died. Care proceedings were begun for the elder child. It was not clear just who had been responsible for the death.
Held: There were two questions. First, who perpetrated the injuries recorded by the experts? The answer to that . .
CitedIn re A (a Child) (Care proceedings: Non-accidental injury) CA 1-Jul-2003
The 11 year old child had been subject to non-accidental injury. The perpetrator could not be identified form among those who had care of him. The Family Court had held the first part of a split trial. The judge had been unable to exclude the . .
CitedIn 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 . .
CitedNorth 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 . .
CitedIn 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 . .
CitedLancashire 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 . .
CitedIn 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 . .
CitedIn 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, . .
CitedIn 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 . .

Lists of cited by and citing cases may be incomplete.

Children

Leading Case

Updated: 31 October 2021; Ref: scu.180417

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?’

Hedley J
[2008] EWHC 3030 (Fam), [2009] 2 WLR 1274, [2009] 2 FCR 312, [2009] 1 FLR 733, [2009] Fam Law 115
Bailii
Adoption and Children Act 2002, Children Act 1989, Human Fertilisation and Embryology Act 1990 30(7)
England and Wales
Cited by:
CitedRe 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 . .
ApprovedIn 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 . .
CitedD 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 . .
CitedIn 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

Leading Case

Updated: 31 October 2021; Ref: scu.347369

X Council v B (Emergency Protection Orders): FD 16 Aug 2004

Munby J reviewed the grant of Emergency Protection Orders, and summarised the applicable law: ‘The matters I have just been considering are so important that it may be convenient if I here summarise the most important points:
(i) An EPO, summarily removing a child from his parents, is a ‘draconian’ and ‘extremely harsh’ measure, requiring ‘exceptional justification’ and ‘extraordinarily compelling reasons’. Such an order should not be made unless the FPC is satisfied that it is both necessary and proportionate and that no other less radical form of order will achieve the essential end of promoting the welfare of the child. Separation is only to be contemplated if immediate separation is essential to secure the child’s safety: ‘imminent danger’ must be ‘actually established’.
(ii) Both the local authority which seeks and the FPC which makes an EPO assume a heavy burden of responsibility. It is important that both the local authority and the FPC approach every application for an EPO with an anxious awareness of the extreme gravity of the relief being sought and a scrupulous regard for the European Convention rights of both the child and the parents.
(iii) Any order must provide for the least interventionist solution consistent with the preservation of the child’s immediate safety.
(iv) If the real purpose of the local authority’s application is to enable it to have the child assessed then consideration should be given to whether that objective cannot equally effectively, and more proportionately, be achieved by an application for, or by the making of, a CAO under s 43 of the Children Act 1989.
(v) No EPO should be made for any longer than is absolutely necessary to protect the child. Where the EPO is made on an ex parte (without notice) application very careful consideration should be given to the need to ensure that the initial order is made for the shortest possible period commensurate with the preservation of the child’s immediate safety.
(vi) The evidence in support of the application for an EPO must be full, detailed, precise and compelling. Unparticularised generalities will not suffice. The sources of hearsay evidence must be identified. Expressions of opinion must be supported by detailed evidence and properly articulated reasoning.
(vii) Save in wholly exceptional cases, parents must be given adequate prior notice of the date, time and place of any application by a local authority for an EPO. They must also be given proper notice of the evidence the local authority is relying upon.
(viii) Where the application for an EPO is made ex parte the local authority must make out a compelling case for applying without first giving the parents notice. An ex parte application will normally be appropriate only if the case is genuinely one of emergency or other great urgency – and even then it should normally be possible to give some kind of albeit informal notice to the parents – or if there are compelling reasons to believe that the child’s welfare will be compromised if the parents are alerted in advance to what is going on.
(ix) The evidential burden on the local authority is even heavier if the application is made ex parte. Those who seek relief ex parte are under a duty to make the fullest and most candid and frank disclosure of all the relevant circumstances known to them. This duty is not confined to the material facts: it extends to all relevant matters, whether of fact or of law.
(x) Section 45(7)(b) of the Children Act 1989 permits the FPC to hear oral evidence. But it is important that those who are not present should nonetheless be able to know what oral evidence and other materials have been put before the FPC. It is, therefore, particularly important that the FPC complies meticulously with the mandatory requirements of rr 20, 21(5) and 21(6) of the Family Proceedings Courts (Children Act 1989) Rules 1991. The FPC must ‘keep a note of the substance of the oral evidence’ and must also record in writing not merely its reasons but also any findings of fact.

(xi) The mere fact that the FPC is under the obligations imposed by rr 21(5), 21(6) and 21(8), is no reason why the local authority should not immediately, on request, inform the parents of exactly what has gone on in their absence. Parents against whom an EPO is made ex parte are entitled to be given, if they ask, proper information as to what happened at the hearing and to be told, if they ask: (i) exactly what documents, bundles or other evidential materials were lodged with the FPC either before or during the course of the hearing; and (ii) what legal authorities were cited to the FPC. The local authority’s legal representatives should respond forthwith to any reasonable request from the parents or their legal representatives either for copies of the materials read by the FPC or for information about what took place at the hearing. It will, therefore, be prudent for those acting for the local authority in such a case to keep a proper note of the proceedings, lest they otherwise find themselves embarrassed by a proper request for information which they are unable to provide.
(xii) Section 44(5)(b) of the Children Act 1989 provides that the local authority may exercise its parental responsibility only in such manner ‘as is reasonably required to safeguard or promote the welfare of the child’. Section 44(5)(a) provides that the local authority shall exercise its power of removal under s 44(4)(b)(i) ‘only . . in order to safeguard the welfare of the child’. The local authority must apply its mind very carefully to whether removal is essential in order to secure the child’s immediate safety. The mere fact that the local authority has obtained an EPO is not of itself enough. The FPC decides whether to make an EPO. But the local authority decides whether to remove. The local authority, even after it has obtained an EPO, is under an obligation to consider less drastic alternatives to emergency removal. Section 44(5) requires a process within the local authority whereby there is a further consideration of the action to be taken after the EPO has been obtained. Though no procedure is specified, it will obviously be prudent for local authorities to have in place procedures to ensure both that the required decision-making actually takes place and that it is appropriately documented.
(xiii) Consistently with the local authority’s positive obligation under Art 8 to take appropriate action to reunite parent and child, s 44(10)(a) and s 44(11)(a) impose on the local authority a mandatory obligation to return a child who it has removed under s 44(4)(b)(i) to the parent from whom the child was removed if ‘it appears to [the local authority] that it is safe for the child to be returned’. This imposes on the local authority a continuing duty to keep the case under review day by day so as to ensure that parent and child are separated for no longer than is necessary to secure the child’s safety. In this, as in other respects, the local authority is under a duty to exercise exceptional diligence.
(xiv) Section 44(13) of the Children Act 1989 requires the local authority, subject only to any direction given by the FPC under s 44(6), to allow a child who is subject to an EPO ‘reasonable contact’ with his parents. Arrangements for contact must be driven by the needs of the family, not stunted by lack of resources.’

Munby J
[2005] 1 FLR 341, [2004] EWHC 2015 (Fam)
Bailii
Children Act 1989 43
England and Wales
Cited by:
AppliedIn re X, (Emergency Protection Orders) FD 16-Mar-2006
Within two hours of a case conference which mentioned possible removal of children, but agreed other steps, the local authority applied for an emergency protection order, and forcibly removed the child from the family.
Held: The decision . .
CitedIslington v Z and others; In the Matter of X and Y twins FD 18-Jul-2007
The court set out to explain how care proceedings had been brought to an end suddenly. The children had been taken into care after one was brought to hospital with injuries received by way of unexplained trauma. It was suggested that the child had . .
CitedLangley and others v Liverpool City Council and others CA 11-Oct-2005
Families had challenged the removal of their children into the care of foster parents by the respondents. The family father, who was blind, had taken to driving. The respondents appealed findings that they had acted unlawfully and in breach of the . .
ApprovedA v East Sussex County Council and Chief Constable of Sussex Police CA 2-Jul-2010
A appealed against the dismissal of her claim for damages under the 1998 Act after the defendants had taken action anticipating possible abuse of her baby child. The baby had been returned after the suspicions were allayed. She complained that the . .

Lists of cited by and citing cases may be incomplete.

Children

Leading Case

Updated: 31 October 2021; Ref: scu.241299

Maumousseau and Washington v France: ECHR 6 Dec 2007

The child’s mother (M) complained that the effective operation of the Hague Convention, in ordering the return of the applicant’s daughter to her habitual residence in the United States, M having taken her to France for the holidays and refused to return her afterwards, was in breach of their article 8 rights.
Held: The claim failed. The positive obligation to reunite parents with their children had to be interpreted in the light of the requirements of the Hague Convention and the UNCRC. In deciding whether the interference was necessary in a democratic society, the decisive issue was ‘whether a fair balance between the competing interests at stake – those of the child, of the two parents, and of public order – was struck’. Several aspects were involved in the primary consideration of the best interests of the child: for example, ‘to guarantee that the child develops in a sound environment and that a parent cannot take measures that would harm its health and development; secondly, to maintain its ties with its family, except in cases where the family has proved particularly unfit’. The concept of the child’s ‘best interests’ was also a primary consideration in the context of the Hague Convention procedures. The Court accepted entirely the philosophy underlying the Hague Convention. It did not agree that the domestic courts’ interpretation of article 13b was necessarily incompatible with the notion of the child’s best interests. There was ‘no automatic or mechanical application of a child’s return’ once the Hague Convention was invoked, because of the exceptions ‘based on objective considerations concerning the actual person of the child and its environment’.
39388/05, [2007] ECHR 1204, (2010) 51 EHRR 35
Bailii
European Convention on Human Rights
Human Rights
Cited by:
CitedRe 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.
Updated: 26 October 2021; Ref: scu.440729

R, Regina (on The Application of) v London Borough of Croydon: Admn 14 Jun 2011

The Claimant, R, challenged the determination of his age by the Defendant, the London Borough of Croydon. R was an asylum seeker originally from Afghanistan. He claimed presently to be a child aged 17. R was unaware of his exact date of birth but said he was born in the Afghan year 1372. The Afghan year runs from March to March. The year 1372 is equivalent to 1993/94 so R’s case was that he was born on a date between 21 March 1993 and 20 March 1994.
Kenneth Parker J
[2011] EWHC 1473 (Admin)
Bailii
England and Wales

Updated: 26 October 2021; Ref: scu.440865

Bournemouth Borough Council v PS and Another: CoP 11 Jun 2015

The court was asked to decide (i) whether the package of care provided to BS was in his best interests; (ii) whether that package amounted to a deprivation of liberty within the terms of Article 5 of the European Convention on Human Rights 1950; and (iii) what contact Ben should have to his mother, the first respondent.
Mostyn J
[2015] EWCOP 39
Bailii
European Convention on Human Rights 5
England and Wales

Updated: 12 October 2021; Ref: scu.548026

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 he would regretfully go along with the children’s staying permanently with the mother in this country. However he was making arrangements to begin action here. The obligation on a court to order the return of abducted children to their country of origin, was to be relaxed after the court had made a finding of consent on the part of the parent from whom it was claimed the children had been removed.
Balcombe LJ (dissenting)
Gazette 29-Jul-1992, [1992] Fam 106
Child Abduction and Custody Act 1985
England and Wales
Cited by:
CitedH 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 . .
CitedRe 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 . .
CitedIn Re H and others (Minors) HL 10-Apr-1997
Three young children had been brought to England from Israel by their mother but without the consent of the father, who now sought their return. The mother claimed that the father had subsequently acquiesced in the removal. Both parents were . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 September 2021; Ref: scu.85689

Re D (A Child): CA 31 Oct 2017

The court considered an order effectively depriving child D of his liberty.
Sir James Munby P FD, David Richards, Irwin LJJ
[2017] EWCA Civ 1695, (2018) 160 BMLR 61, [2018] 2 FLR 13, [2018] COPLR 1, [2018] PTSR 1791
Bailii
Mental Capacity Act 2005, European Convention on Human Rights 8
England and Wales
Citing:
Appeal fromBirmingham City Council v D CoP 21-Jan-2016
D was a young adult with several disorders presenting challenging behaviour. The Hospital sought arrangements allowing control over him for his care and eucation. . .
CitedIn Re K (A Child) (Secure Accommodation Order: Right to Liberty) CA 29-Nov-2000
An order providing that a child should stay in secure accommodation, was an order which restricted the child’s liberty. A justification for such a restriction had to be brought within the exceptions listed in article 5.
Held: Detention for . .

Cited by:
Appeal FromIn re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 August 2021; Ref: scu.598462

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 within the jurisdiction of the Crown Court so as to grant or refuse leave for minors to be called as witnesses at a criminal trial.
Waterhouse J said: ‘In many cases, the wardship court is likely to be involved at an early stage because leave will have been sought for the police to interview a ward. In such circumstances it is inevitable that the court will have to perform a balancing exercise, weighing the potential damage to the child against the public interest, as a responsible parent would do. In reaching a decision, the best interests of a child may not be the first and paramount consideration . . ‘ and ‘Mrs Puxon accepts on behalf of the Crown Prosecution Service that, in general, it is the practice of the police to obtain the consent of a parent who has the custody of a child before interviewing the child as a potential witness. Similarly, the police work in close co-operation with social services departments in whose care children have been placed and obtain the consent of the department (as in this case) before interviewing a child in care. It is accepted also that, in the case of a ward of court, leave should be obtained from the wardship court before an interview by the police takes place.’ and ‘Once a prosecution has been instituted however, the statutory procedure must (it is said) take its normal course. The Crown Prosecution Service will, of course, consider any representation that may be made by a parent or a local authority about the potential adverse impact upon a child of having to give evidence. This may be one of the matters to be considered in deciding whether or not to proceed with particular charges, but the discretion is vested in the prosecuting authority rather than the parent or the local authority. In the present case, it is said further, an extraordinary and anomalous situation would arise, if the wardship court were to intervene, because the minors might be ‘protected’ from the operation of the statutory rules governing the compellability of witnesses, whereas the other children involved in the case would have no similar protection.’
He concluded: ‘I have no doubt that I should decline to exercise the wardship jurisdiction by either giving leave for the minors to be called as witnesses or by giving a direction in the matter in another form. In my judgment, it is neither necessary nor appropriate in child abuse cases for the Crown Prosecution Service to seek the leave of the wardship court to call a ward as a witness either before or after committal proceedings.
It is necessary, first of all, to set my conclusion in its proper context. In many cases, the wardship court is likely to be involved at an early stage because leave will have to be sought for the police to interview a ward. In such circumstances it is inevitable that the court will have to perform a balancing exercise, weighing the potential damage to the child against the public interest, as a responsible parent would do. In reaching a decision, the best interests of a child may not be the first and paramount consideration, for reasons that I have sufficiently explained. It is clear also that the court will have in mind that, if leave to interview the child is granted, a prosecution based on the child’s evidence, at least in part, may ensue.’
Waterhouse J
[1988] Fam 1
England and Wales
Cited by:
CitedRe 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.
Updated: 14 August 2021; Ref: scu.588165