Hello and welcome everybody. Very pleased to welcome you to today's session through Data Law. My name's Safta Mahmood Diston is session three of the 18 session course where we're looking and covering the Children Law accreditation course. So I'm looking at this as of March 2024. So this is session three. And as you will know by now, the aims of uh this course are to give you a comprehensive account of the law procedure and practice in all areas of Children law and also some of the interrelated areas which relate to Children law proceedings. So the course is split up into 18 sessions, as I mentioned each approximately an hour in length, some sessions are longer, some are shorter and the course is being run by myself and also later on by Nina Hera Children's Guardian. As always, I've put in copyright acknowledgement here for you and the law is as of March 2024. Now, in the previous session, you remember I spent a fair bit of time then going through with you. Uh some of the aspects surrounding what we had in so far as the position with, for example, section 20 of the Children Act in England and section 76 of the Social Services and Well being of Wales Act uh of 2014 in Wales. We spent some time looking at the leaving care provisions and also I spent a fair bit of time with you in the previous session looking at the position with uh prep proceedings in terms of section seven, section 37 section 47 of the Children. Actually, how that then ties in with a view to then uh the uh matter then being dealt with by way of the local authority then looking at potentially commencing proceedings. We also spent some time on some of the private law aspects as well, particularly separate representation. What I'm going to be doing today then is I'd like to continue and develop this area by looking at some of the areas surrounding first and foremost compliance with court orders. So I'm going to be looking at that to start off with. We're then going to be looking at the position uh with uh local authorities intervening in the lives of Children and families. We'll be looking at the different types of abuse. I'll be taking you through emergency protection orders, powers of police protection. And then thereafter, we'll be spending some time looking at at the uh position surrounding uh what happens if the local authority then are looking at commencing non uh emergency orders. So we'll spend some time looking in that deposition with other types of orders tied in with that. We'll be looking at injunctions today, the use of the inherent jurisdiction in particular, uh the use of forced marriage protection order orders and also female genital mutilation protection orders. All right. So those are some of the key areas that I'll be covering in this session with you today. So let's start with the position with compliance with court orders and really how are you with this? So with that in mind, it's important to remind ourselves about uh two key cases on this first and foremost, a case of London Borough of Bexley against WD of 2014 and also the case of VW strict compliance with court orders also of the same year, if you are cross referencing to where this is in the elections themselves, this is basically pages 63 uh and uh 64 of the notes. If you want to have a look at that, we'll put this in more detail for you as I'm sure you'll agree. Uh We've got the uh expectation then under the family procedure rules, rule 4.5 in particular to ensure that documents are filed uh on time or now uploaded, of course on the portal, given that the public law proceedings are dealt with through the online portal, uh the family law portal. And therefore, these documents have been uploaded as opposed to being filed and served in the traditional sense that we used to do. So, this case of London B, Bexley and WD was one whereby it emphasized the fact that if one is not one knows that they're going to be late in complying with court directions, then you need to really be dealing with that in advance. So if that means needed to apply for an extension of time, then that's what you need to be doing. And if the date at which you'll be complying with that is really un uncertain, then really you do need to try and pick uh a, a more sensible date because clearly if say for you to you for the local authority, for example, you need to know when your social worker will get the evidence to you. So that that can be uploaded on the portal, which in turn, and will obviously have an impact on when the parents and also the children's guardian can then subsequently provide their information. This Bexley decision also confirms uh that uh in fact, pursuant to rule 4.5 subparagraph three of the F pr uh if there is a package directional rule otherwise or direction which requires a party to do something by a set date, ie to upload a document by a certain date, then it, you can't technically extend that by way of agreement between the parties, you actually need permission of the court. And uh with that in mind, uh you got rule of 20.10 of the F pr. So if a witness statement, for example, is not served within time. Then that witness may not be called to give oral evidence without the court's permission. So again, you can see the importance of that. So again, the need to apply, the need to apply for permission to rely upon documents out of time, they need to apply in advance is very much emphasized. And this was emphasized also in the case of re w uh of uh 2014, whereby the president of the family division once again, remind us, remind us about route 4.5 in particular need for strict compliance uh with this. Now that brings me then on to the position with child protection conferences and plans. And uh in so far as this is concerned, if we then went back to the example that I mentioned earlier, whereby say the uh local authority have had a referral made to them by say the school or say a neighbor or the police or otherwise. And based on that referral, the local authority are satisfied that this child concerned is suffering or is likely to be suffering significant harm. Then that's where in those circumstances, it then places them under that duty, then to investigate. So then you've got section 47 of the Children Act and part of those investigations may be that the local authority are going to be setting up a child protection conference. So each local authority needs to then consider this in the area. And in terms of such of this conference, uh they need to ensure that the necessary persons who uh need to be. There are of course invited which in the first instance will be the child's uh parents. Uh parents can of course instruct lawyers and some of yourselves who represent parents in these circumstances. Prep proceedings. You may well be able to then uh be able to assist your client in that regard and secure if possible. Level one assistance by way of public funding, which is means of merits tested. Also at this conference, of course, will be uh in attendance. Uh professionals who are involved with the families, of course, a social worker, the school, for example, the police community workers, uh other agencies which are or have been working or attempting to work with the family. And this is whereby if if there is a policy of refusing to allow lawyers to attend a blanket policy of not allowing lawyers to attend would be unlawful. But having said that if say the police are going to be attending conference and they are prepared to share some information as to some of the inquiries they've made, but they are not prepared yet to share that with, say the parents because it might hamper with their investigations. And that's where although they may attend the conference and although they may share that information, it would be only on a strict basis that it's not yet shared with the parents and therefore, there will be a restricted access to that. And therefore, that's where that part of the conference to parents and or their lawyers would not be permitted to attend. Now, at this conference, it will be very important to then enable information to be shared as to the involvement of the professionals with the family and uh Children. Uh and also to then see what the position is obviously of the parents to give the parents an opportunity to voice their views. If the professionals feel that there are sufficient concerns, to warrant that the child concerned is suffering, were likely to suffer significant harm under one or more to four categories. Then in England, the child would be made subject to a child protection plan under one or more of those four categories which are physical abuse, sexual abuse, neglect, and or emotional harm. And in Wales, the child would be subject to being registered on the child protection register under one or more of those four categories. Now, of course, the purpose of conference is not only to determine whether or not the child should be made subject to a plan or be registered, but also to assist the family in so far as assisting them in being able to provide good enough care uh for the child. And with that in mind, this is really the aim of conference to then have a set of recommendations that are made to, to enable the family to then uh work with the local authority at the other other professionals to try and achieve that requirement of providing good enough care. And this is where there'll be a review within three months thereafter. See the progress that's made and thereafter, there'll be reviews within six months thereafter for as long as are necessary in practice, many of you would know that if say by the time of maybe the first or even the second review, uh if things are not really getting better, if things are perhaps getting worse, or there isn't that level of progress that's made. And that's where the local authority as part of their prep proceedings work may well be looking at taking legal advice at a legal planning meeting or a gateway panel meeting and that's where there may potentially be a commencement of public law uh care proceedings. Now, this is where it's important to be aware that there's a number of very useful publications uh which uh you would of course want to have access to when you are dealing with this matter. So first and foremost, in England, there's the working together document that this was revised just a few months ago in December 2023 in England. Uh So this is the uh the uh document which uh looks at uh interagency working. So, working together to safeguard Children, a guide to interagency working. And this is a significant document which has been updated over the years uh principally by the DFE and it contains a lot of very useful information about the involvement of uh children's services, both prep proceedings doing proceedings. It talks about the nature of investigations. It talks about the assessment process. It also provides some very useful information and updated information on S pr safeguarding practice reviews, child death reviews. It also provides information surrounding uh the uh different categories of abuse and also a lot of cross referencing to a lot of other uh publications. So it's a, it's a tremendously useful document and one that I would strongly urge you to have a look at. Obviously, when you're working in this field. Now in Eng in Wales, there's the equivalent which is the safeguarding Children working together on the Children Act of 2004 and then the changes in 2018. But also in Wales, you have the Social Services and well being of Wales Act of 2014 that I mentioned, this has pulled together a lot of the guidance and codes of practice and it's, it's really got a series of codes of practice for all the various areas. So there's various volumes sort of working together to safeguard people guidance. For example, in addition to these documents, there's all sort of good practice in childcare cases. This was a document put together by the Law Society. Uh Currently, it's the third edition of August 2015, a very useful document uh which uh pulls together a lot of the information there. And then you've also got the uh the practice note of attendance of uh solicitors at local authority Children at meetings. This was uh updated on the seventh of May 2021. A very useful document from the law Society. It pulls together information as to the fact that when you are attending these Children at meetings, which could be child protection conferences, which could be the pre proceedings meetings when local authorities are contemplating commencing care proceedings, it's very important to make sure that the person who attends is familiar with the case has sufficient expertise in the area to be able to advise their client accordingly. It also gives you some very useful guidance depending on who you're acting for whether you're for a local authority, uh the uh uh the parents. Uh and also if the uh meeting takes place whilst there are ongoing proceedings that if you're turning on behalf of the child uh through the guardian, so very very useful guidance, have a look at that and sometimes we'll have situations whereby you'll be appointed as a child solicitor. And it might be the case that the court appoints you because there, there is not a guardian available at that stage. Uh This was certainly a an issue uh for many years in many parts around England, in particular and aspects of Wales and therefore the court as you'll see later can of course, appoint a solicitor when in those circumstances, a guardian was not available to be appointed. And if that's the case, then this guidance sets out what that solicitor can do in acting in the absence of a guardian where one is not yet appointed and one cannot receive instructions from, say, a duty guardian or from Cafcass manager or otherwise. So have a look at that guidance as of second of December uh 2019. So you can see a number of useful publications there. Now, with the working together document that I mentioned, uh like I say, it was updated in England recently, the full title of it being a guide to Interagency, working to safeguard and promote the welfare of Children. Uh what it has done, it's uh updated in many respects and one of the key things it's put in there is it's referred to not just the various forms of abuse, but also it's specifically referred to uh the position with controlling or coercive behavior. So, what I would suggest is as I've put in your main lecture notes on pages 66 through 268 of your lecture notes is I would suggest have a look at the uh very wide definitions of abuse. Uh You can see on page 157 of uh through to 161 and uh also 100 and uh 55 in particular, there are the various definitions of abuse there. So for example, uh you've got the definition of uh emotional abuse, which refers to the persistent emotional maltreatment of a child. Uh which uh so as to cause severe and persistent adverse effects on the child's emotional development, then you've got neglect, which also refers to the persistent failure to meet a child's basic physical and or psychological needs likely to result in a serious impairment of the child's health or development. So you've got that definition there. These are in the glossary of that document of working together, then there's physical abuse and uh this relates to hitting, shaking, throwing, burning, uh poisoning, coarse, holding, drowning, suffocating or otherwise causing physical harm to a child. So you've got the definition there and then it expands on that and then you've got the sexual abuse and the wide definition of, of sexual abuse there. Now, like I say, the working together document also specifically refers to the position with controlling or coercive behavior. And as you know, this is an area uh which has developed significantly over the years. So, first and foremost, in 2015, there was the offense of controlling or cursive behavior uh brought about by section 76 of the Serious Crimes Act as a criminal offense. So you've got that provision and uh more recently, uh section 68 of the Domestic Abuse Act of 2021 which came in on the fifth of April 2023 uh has in fact extended that offense now in that it's removed the words living together requirement so effectively, the offense can now be committed in circumstances where say you've got partners, ex performer, partners, family members, uh regardless of whether the victim and perpetrator are actually living together or not. So even if the couple separate, for example, the offense can still be committed uh in those circumstances. So have a look at that. And as we discussed in the previous session, you'll remember that particularly in private law cases, cases like HN and others, the case of 30th of March 2021 did say an advisor that if one is relying upon instance of controlling and coercive behavior uh in that private law context, and that's where the parties should be directed to do a statement setting out the nature of that relationship. So that way the court can then give consideration as to whether or not to consider those allegations in terms of that pattern of abuse. And also to then look to see whether or not that should form a part and parcel of the any fact finding hearing that the court may then be looking at a list in the matter for. Now, the other aspect that I've put uh in your notes for you, uh which is important is understanding the use of Centa charts uh and uh assessing growth and Centa charts are incredibly useful. Uh These can then show the position of aspects of a child's development, maybe their height, their weight, for example, in a statistical format by comparing other Children uh in that range. Uh So for example, if you've got a child on the uh say on the uh 35th percentile in terms of their weight, for example. So it's a baby boy, uh who's uh say two weeks old and he's uh weight is such that he's on a 35th percentile. Then what you're looking at and looking at that would mean that 29 boys who are two weeks old in that situation, out of every 100 will be uh less heavier than him. And then uh 7465 boys who are two weeks old out of every 100 would be heavier than him. But what you're looking at is in comparisons as you progress or you're looking at what happens as he gets older. What's happening? Is he moving that cent up or down? And if so why? And that's where it enables you to get an idea as to what that range is and trying to ascertain and understand why that is, which can then sometimes enable professionals to look to see whether or not there are any concerns which are relating to that child's development. So, again, very important to make use of centaur charts in that regard. Now, that then brings me on to emergency situations. And as you can imagine, sometimes when it comes to child protection, there may be a need for taking emergency steps. And with that in mind, first and foremost, we need to understand the use of powers of police protection. These are coded by section 46 of the Children Act of 89. And the first thing to emphasize is even though in practice, people do refer to this as ppoie police protection order. These are not actually orders, these are not orders in the sense that the police are not required to apply to the court for these. These are powers that the police have pursued to section 46 which they can exercise in appropriate cases. It's got to be normally an office of superintendent level or hire who exercises or makes a decision to exercise uh powers of police protection. This should be used really in in emergency situations uh whereby if the police are satisfied that is reasonable cause to suspect that the child would otherwise likely to suffer significant harm if the child was not made subject to police protection. If police protection is exercised, it gives the police that authorization to remove if necessary and to make arrangements for that child's accommodation and this powers of police protection will last for a maximum period of 72 hours. It doesn't give the police pr but it does allow them to remove if needs be. And then really by liaising with the parents and in many cases with the local authorities, sometimes the out of hours team because powers of police protection may be exercised maybe on a weekend on an evening where it's not as easy to get to court. Then that's where when they are liaising with the local authority as well. It may be then that discussions are had as to the best placement in the short term for a child, whether that's with family or whether that's, for example, an emergency foster placement. For example, you've also got the position uh with emergency protection orders. These are coded by sections 44 and 45 of the Children Act. And uh these are not that common in some local authority areas. You may get more of these in others. You may not there, there is inconsistency with these and that's something that was really looked at and picked up by the public law working party headed up by Mr Justice Kan when they did a report in March 2021 1 of the things was the inconsistency of the use of powers of police protection, emergency protection orders and also urgent interim care orders. So some of you may find that in your areas rather than an emergency protection order being sought, there may be a request for an urgent hearing to seek an urgent interim care order having said that when we look later at the relaunch of the PLO which was relaunched in January uh 2023 by the President of the family division. One of the things the president did say that in many cases when local authorities are invited to court to list a matter for an urgent hearing. Sometimes it actually is not an emergen, an urgent hearing and in fact, it could have been dealt with the matters, could have been dealt with by way of a first hearing being the case management hearing. But what I would say is if the local authority are looking at separation, then of course, waiting for the C MH which would be between days to 12 to 18 may potentially prejudice the child's welfare. They may need a hearing sooner and that's where they may well be asking for an urgent or an initial interim care hearing before the C MH. So with the EPO and emergency protection order, these can be applied for either without notice, ex parte as we used to refer to it or they could be applied for on notice. So there is uh that option, depending obviously on the circumstances, there's essentially the two grounds. The first one, which is the more common one that's relied upon and this is waived the local authority or indeed any applicant who applies under first grant. In practice, it is the local authority who apply would need to satisfy the court that they have reasonable cause to believe that the child is likely to suffer significant harm. Uh If the child is not removed to accommodation provided by the applicant to if the child doesn't remain where they currently are. So this could be a situation where say the child goes to school, the child makes a serious allegation. They allege that they've been sexually abused by their family member. Then in that situation, the local authority following uh a strategy meeting with the police and following legal advice may decide to pursue an emergency protection order that same day. Perhaps they may even pursue the order without notice. Given the fact that if parents were notified, it may potentially uh affect the criminal investigation. So that's where they would be looking to seek to satisfy the court, that they have reasonable cause to believe that this child is likely to suffer significant harm if the child is not removed to alternative accommodation, ie rather than going home that day to be placed elsewhere, such as maybe in emergency foster care. So that's where they may be arguing for an epo in those circumstances. There is a second ground that's also of course, uh used in these circumstances uh under sections 4445. And that is sometimes in practice referred to as the frustrated access grant. And that's where if the local authority are carrying out their inquiries under section 47 of the Children Act and those inquiries are being frustrated and they need to see the child as a matter of urgency. So let's say they've had a referral made to them by say neighbor. They're worried about the Children next door. They could hear a lot of shouting and swearing and Children crying continuously. So they're worried about the Children. They make the referral section 47 comes into play. The local authority do a home visit. They want to see the child, but the parents are refusing access. That's where they may take legal advice and consider pursuing an emergency protection order on a basis. Like I say that uh they are being unreasonably refused access to the child, which is required as a matter of urgency. Now, the order if it's made will be made for a period of up to eight days, it is possible to apply but only once for an extension. And that's for a further seven days in practice, that's not going to be very common because as you can imagine, even if the local authority do pursue an emergency protection order, if they do need to continue to share parental responsibility, which of course, the emergency protection order will grant them, which they would then will share with the parents and other people with pr it may be that they uh consecutively will be seeking an interim care order and they have continued to hear pr uh for a longer period of time to ensure the child's needs are appropriately met. There's no, there's no way to appeal against an EPO. So if one is not made or if one is not, is granted, there's no right of appeal against or in favor of an Epo in that regard. And then this is where when you are dealing with these applications, whether you're for the applicant or the respondents, it's very important to be aware of these two leading cases. That's the case of ex Council and B this 2004 case handed down by Mr Justice Mumby as he was then and also the other case. A couple of years later, the case of the ex ex uh emergency protection orders handed down by Mr Justice Macfarlane as he was then two very, very important cases. And and certainly if you're for the applicant, you must make sure that you bring these cases to the attention of the court when you're dealing with these applications, uh they put, put together the two cases effectively uh summarize the fact that to be able to acquire the emergency protection order, one needs to show exceptional justification and imminent danger. These orders by their very nature are draconian. They are harsh measures requiring extraordinary and compelling reasons. You would have to show imminent danger to be able to acquire these orders. Even if the emergency protection order is granted, it should only be made for as long as it's necessary. So I've had EP OS that I've applied for where these are not necessarily made for the full eight days. Sometimes these have been made for less. I've had EP OS made for about three days. For example, it depends on what period is required to be able to protect a child in that situation, the evidence and support needs to be full detailed, precise and compelling if the matter takes place without notice. So say just a social worker and the local authority lawyer, for example, then there needs to be a careful note kept of the substance of the oral evidence because of course, the respondent parties would then need to be informed of that. Uh that and to be clear about the base upon which this order was granted. Now, when these hearings, when these two decisions were handed down some years ago, we didn't used to have old hearings recorded in the way we do. Now, we used to have the tape that would be switched on in that regard. So it's quite different than of course, unlike now what we have. But these cases emphasize that all these hearings needs to be recorded in that regard. Cases of emotional harm, neglect for a rare warrant of medicine protection order. Case of physical abuse, sexual abuse fi I def, fabrication, induced illness, the induced illness by carers, those types of cases may lend themselves to E PR S. But again, the evidence needs to be clear and and precise in that regard. And there's been a recent decision on an E PR. This was a case last year. This was a case of a local authority against Mrs X, Mr X and the Children. And in this case, even though an emergency protection order was granted on, on uh when the matter was then looked at and we looked at, uh there was very significant failings in the way in which that emergency protection order was granted. In particular, uh The court was concerned that the court was not drawn uh to these two cases, Ie ex Council and BNVX uh at that hearing, which should have been drawn to the court's attention. And therefore, uh there was a failing day and also the facts didn't support the making of the order in the circumstances. So again, have a look at that case when you can now that brings me on to uh some of the other aspects. So you've also got the position surrounding uh removal at birth uh without notice. And this is where it may well be the case that sometimes local authorities are looking at separating the child from parent at birth. It is possible as this Barry NBC and D case illustrates in 2009 for the local authority exceptionally to be making effectively a uh a preemptively order ie one whereby as in this situation, if the mother has already demonstrated that she has harmed or may harm a child at birth, then sometimes apply for a pre emptive order. Effectively a declaration from the inherent jurisdiction of the High Court, uh which would have the effect that uh the court can grant if, if necessary anticipated regulatory relief so that the court can make an order to say once this child is born, there was a serious risk to the child. And therefore, uh the local authority in that situation would be justified in seeking separation at that stage. So that was the kind of thinking behind this almost seeking a pre emptive order in that regard. And therefore in those circumstances, not informing the parent uh before the baby is born of the fact that the local authority's intention is to seek separation at the point of birth. Because by doing so, it may potentially place that unborn child at risk. Now, when it comes to contact and removal, as you can imagine, there's been a lot of development surrounding this area over the years and I'll be looking at contact in more detail later when we look at section 34 of the Children Act. But here when we're looking at the position with separation of Children, particularly say via an emergency protection order or say an interim care order, then this is why it's important to be familiar with cases such as VM this 2003 decision here, Mr Justice Mumby, as he was then uh did say that if say the mother is breastfeeding, for example, contact needs to be led by the needs of the family, not stunted by uh resources and contact should be most days of the week. But then that was this, these points were clarified further. But in the later case, a few years later of Kirkley NBC NS. We're here, Mr Justice Baldi did emphasize uh that uh the contact arrangements, the fact they need to be driven by the needs of the family not stunted by resources was not intended to mean that resources are a wholly irrelevant consideration. So of course, one does have to look at resources in these circumstances. It can't be ignored in that regard. And later, I'll take you through cases such as DS uh which was a decision in August 2020 by the court of appeal. Following on from the COVID pandemic, where obviously resources was referred to in that case and clearly taken into account also. And most days of the week, the Hercules case doesn't did say doesn't equate to every day, most days of the week obviously is not the same as saying that contact should be every day. Clearly, a number of factors would have to be weighed up in so far as what the level of contact should be. Now, there's also this really useful peer reviewed research which I would suggest you have a look at. This is on page 73 of your main lecture notes and this is research put together by Jay Kenrick and uh also by C Humphries and the M Kali. This was research done in England and also in Australia. And the combination of these two pieces of research are that uh what they emphasize is that when you've got young Children in particular, as in this case, then the travel could frequently be distressing for infants. So for example, say we've got contact arranged at a contact center for a child, collecting the child, placing them inside a car, driving them to the contact center, having that contact, driving them back, that was causing the Children to be unsettled, even if it was supervised, even if it was supported, and this could result in them being unsettled well into the the kind of evening and this would continue throughout the proceeding. So obviously, that disruption needs to be borne in mind, particularly when you're looking at the level frequency of contact. But also this research talks about the need for the Children from a young age to be able to develop the skills to form attachments so that they would then be able to develop those skills so that they can then develop attachments with other people. Uh throughout their life, those skills can be acquired through their primary caregiver, which doesn't necessarily have to be their parent. It's the main person who's looking after them, which of course, if the child is in foster care could well therefore be a foster carer uh in those circumstances. So again, it's very important to have a look at this research in terms of the uh the frequency uh and uh contact and also the impact uh of upon Children in these circumstances. So have a look at that. Now, with the uh position with ep Os Domestic Protection Orders, we need to obviously bear in mind that these do then give local authorities parental responsibility. They share these uh with um other people with pr principally the parents, which does mean that the local authority can then exercise their discretion in determining where the child is to be placed. So, in that regard, obviously, the EPO is there uh for, for that specific purpose. And also you may find that if the local authority need additional directions, then they may well see those also. So this is set up for you within pages 74 and uh 75 of the um of the notes. So this is the position with these additional directions. So for example, you've got section 48 1 where say the local authority decide to go and pursue an EPO on notice and the child is with say the grandparents for that evening, but they want a local authority to pursue that epo the day after the grandparents have been colluding with the parents, let's say, and they are refusing to inform the local authority as to where the child is. That's where an order under section 48 1 may be sought uh requiring the person to disclose information as to the child's whereabouts. 48 3 could be used authorizing the applicant. So it could be the social worker, it could be the police to be uh authorized to enter and search named premises for the child. And then if there is a need for police assistance, section 48 9 could be used which allows a warrant to be issued to enable the police to use reasonable force if necessary to be able to recover the child in those circumstances. If for example, access is being denied to the child, there's also these exclusion provisions which are not applied for very often. These are set out under section 44 2 of the Children acting they're not very common uh but can be useful. So let's say you've got a situation where uh the main reason why the local authority are involved with the family is because of say domestic abuse perpetrated by the one parent towards the other. And if that abusive parent was excluded from the property, then if the local authority are satisfied that the other parent can continue to look after the child to, to the to the exclusion of the other parent, then they may consider pursuing an EPO and on the basis that the child will remain placed with the one parent, but for the other parent to be excluded uh from the uh the family home. And, and therefore, that's where effectively this can take the form of an ex of an E pr being granted with that exclusion provision, which in a way serves a little bit like the occupation orders that will sometimes be looking at pursuing through sections 33 to 38 of the family law, Act of 1996. And powers of arrest could be attached similar to what we would get with occupation orders in that regard. If that is the case, uh then it's important for a separate statement and to be put together by the social worker team setting out why they're seeking the uh the exclusion requirement and undertakings can also be given by the uh respondent party in these circumstances just like we would have if it was going to be uh an application for an occupation order. Now page 75 of the election notes also refers to other additional directions attached to the EPO. So let's say it's a case where a child has made an allegation of say sexual abuse, the local authority are pursuing say an EPO and they wish to have a forensic pediatric examination undertaken of the child. This is where they would be advised to specifically ask for direction under section 44 6 B of the Children Act for the court to direct for there to be a medical examination of the child alongside the EPO. And this will only be granted of course, if it's going to be necessary in the circumstances, the local authority may also wish to regulate contact uh during the uh duration of the EPO and that could be provided for under section 4413 by where defined order. And as you can imagine, ep Os may well be sought out of hours. These may be sought, given the nature of them to emergency orders that may need to be sought sometimes out of hours. It might be the police exercise police protection, but it may be that on the facts, an epo is being sought and this is where there was guidance put together by the then president of the family division, Sir James Mumby back on the 29th of June 2015. So some five or so years before COVID struck and this guidance was on about uh two hours ep OS so effectively what his lordship said that if an application for an EPO is received by the court after 4 p.m. on that day, then the court will look to see if there's a judge or Magistrates available who may be able to hear the case. If there is that it could be dealt with that way. If not, then this is where if there's no judiciary available, then the UCB officer needs to be notified. I either urgent court business officer and basically the hearing would be done outside of office hours. It will be done remotely. Uh and this is where uh the hearing would then be dealt with by way of uh an hour, two hours, a legal advisor, a judge been notified and the hearing could effectively be dealt with remotely often by telephone. But of course, as you can imagine, it was very different in 2015 to what it is now as a result of the fact that we've all had to embrace technology. We've had to massively expand the way in which we embrace technology because of the COVID pandemic. So, as you know, as from the 23rd of March 2020 we've all had to move significantly and at a rapid pace towards doing a lot more remote hearings. And as many of you will know, a lot of these hearings still take place remote in many parts of England and the Wales, whether it's through teams, whether it's through Zoom, whether it's through CBC BP, for example. So there's various mechanisms that are used there. There's also this other case, the decision in North Somerset County Council AD and others of 2014. It's similar to the case of Barry NBC. Indeed, and I mentioned earlier about uh the court being asked to make a preemptor before the baby is born in this case, uh giving an anticipatory declaratory relief to the local authority for them not to inform a mother of their plan to remove the child at birth because if they were to inform mother of that, uh potentially would place the child at risk. So again, you can see the the thinking behind those types of applications. Now, where do we stand with the position with lodging applications uh in relation to newborn Children? And uh this is where it's very important to be familiar with this case a few years ago in Nottingham. So this wasn't the case of Nottingham and others handed down by Mr Justice Kan and his lordship took the opportunity really to set out some very important pointers in so far as dealing with applications for uh Children, newborn Children. So for example, let's say the local authority are looking to commence proceedings on a newborn child. Um even if the hospital are prepared to keep the baby in the hospital for a period of time. This is not a reason his Lord said for a delay in applying for an interim care order. If, if that's what's going to be sought, if that's what's necessary as a local authority have come to the view that that's what they'll be seeking, they need to get the application lodged sooner rather than later in that regard. And his lordship at paragraph 33 of this judgment in particular, set out some very useful and important best practice guidance. A lot of this I I would suggest is now uh re emphasized in the uh best practice guidance put together by the public law Working Group report of March 2021. So uh one of the key things that uh his lordship did emphasize is that needs to be done the pre assessment that should be completed at least a month before the child is born. The paperwork should be made available uh to the legal team two weeks uh before the baby is born. If the plan is uh that the local authority are seeking an interim care order with a view to separation. Then there is the expectation uh to lodge the application ideally on the day the baby is born if not within 24 hours. And to ensure that of course, these applications are dealt with swiftly and to ensure that all parties have sufficient time within which to instruct lawyers are meant to be fully prepared uh for that hearing. So have a look at this guidance really useful now that then brings me on to injunctions. As I did mention, this course, looks at not just Children proceedings but also into related proceedings. And with that in mind, the role that injunctions play uh when we're dealing with Children cases, so many of you will be familiar with the fact that uh there are various forms of release relief that are available in that regard uh in, in terms of personal protection orders. And uh you've got uh the Family Law Act in 1996 in particular, which is relevant uh in this regard. Uh So you've got the two orders available under the Family Law Act in 1996. 1st and foremost, there's no molestation orders called by section 42 of the act. Uh These are used then to prohibit violence, threatening behavior, harassing pestering behavior, other forms of molestation. And then there's the other form of order uh which is the uh the occupation order, which is used then to regulate uh the uh the family home, in terms of, for example, requiring somebody to move out of the house, uh allowing somebody to move back into the property uh imposing, for example, geographical perimeter around the family home, so that person cannot come within certain streets or roads around the property, for example, so you can have that as well in this case. And in terms of who can apply for these orders, you need to be associated with the respondents that this is contained within principally section 62 and 63 of the Family Law Act of 1996. And then you've got a position surrounding the criteria. So you've got a balance of harm test in determining whether the occupation order will be granted as well as the other uh associated uh provisions there in terms of the criteria and with the occupation orders, powers of arrest could be attached to those pursuant to section 47 if appropriate. Now, when it comes to breach of these orders, make sure you're familiar with section 42 a of the Family Law Act of 1996 that covers breach of anomalous station order. So as from July 2007, breach of Anomalous station order became a criminal offense. And therefore the police can arrest without a need for a warrant in circumstances where they are of the view that the anomalistic order is or has been breached in all circumstances. And if they do arrest. They are, they may then take uh advice from the CPS and they may decide to prosecute and therefore take the matter through the criminal courts and therefore the Magistrates court and if necessary on indictment to the Crown Court and a maximum penalty in the crown court for breach of anomalous station order is, is a fine and possible prison sentence of up to five years in prison. So this is where since July 2007, you've found that family lawyers are doing a lot less uh committal applications for breach of no station orders because those will principally be now led by the police to the criminal route. But it might be that uh you're still dealing with committal proceedings for breach of say occupation orders in the family court. I've also mentioned the use of undertakings of course, are really, really useful uh in these cases. So proceedings can be dealt with by virtue of using uh the undertaking route pursued to section 46. And also there's been a lot of case law and procedural guidance principally by the president surrounding the position with return dates when you got without notice order. And with that in mind, the most recent guidance on that at the moment uh is the updated practice guidance on the molestation orders. And uh this is uh the practice guidance of 14th of July 2023 by uh the uh president of the family Division, Sir Andrew mcfarlane. And that guidance, I would suggest you have a look at it sets out a lot of very useful uh points surrounding the use and uh application of these orders. And one of the key things the president has highlighted in there is that if a without notice order is made in the form of principally anomalistic order, then although the return date should be within 14 days uh to give the respondent an opportunity to come and have uh their position uh put before the court. The reality is given the volume of work, the return date may not be for up to 28 days. So again, very important to bear that in mind and therefore have a look at that guidance. Uh There's also the Domestic Abuse Act of 2021 as I mentioned. And uh the uh president has emphasized that of course, the definition of domestic abuse therefore, should be as per, as per that act in that regard. So have a, have a look at that guidance. It's very useful. We've also got the uh position uh surrounding the uh position as to the inherent jurisdiction of the high court and the use of that. So this is whereby uh you'll find that uh when it does come to uh the high court and in having jurisdiction, the court can pursue to section 100 sub paragraph, three of the Children Act make orders uh via that route in terms of uh protection orders. So there's that provision, I'll come back to that shortly. When we look at the CS E Orders, there's also the Protection From Harassment Act of 1997. Now, this is particularly useful uh where you're dealing with uh personal protection orders that are being sought in relation to people who are not associated with the applicant. So say the applicant has got a problem with, say their neighbors or maybe a work colleague or maybe they are somebody who's being stalked somebody that through by somebody who they may have met through social media, for example. So it could be those kind of situations. And in so far as that's concerned, this is where one can pursue a civil injunction under the Protection from Harassment Act or it may be more likely that the CPS may take criminal proceedings under the protection from Harassment Act and there's various forms of criminal proceedings. Uh There's the offense of harassment, there's the offense of stalking, there's the offense of fear of violence. For example, there's a number of offenses that they may wish to prosecute for and also you can get restraining orders through that act. Also, also, it's important to note that there are the various inherent jurisdiction injunctions. And uh this is where you've got the case of BC C against R and others. A few years ago handed down by Mr Justice Kan and this was an important case which looked at the court being able to consider and make provision for a child sexual exploitation order. So this is where say you've got a young person, for example, who's the victim of CS E uh against uh from persons who they are not associated with. And this is what a court in this case made an inherent jurisdiction order and therefore via the high court on a basis that there was no other provision within the Children Act. Otherwise, to make this provision to enable the local authority to acquire an order which was to be used to restrain uh certain persons from uh associating with, with the young person in this case, uh either directly or indirectly. So therefore, an order was made on that basis. Now, since this decision, of course, uh there have been developments uh there's been uh the uh the stalking protection orders which have become available. So the sexual risk orders which have become available, which led to an amendment to the sexual offenses Act 2003 and also the Antisocial Care Crime and Policing Act of 2014. And therefore, in a later case of London borough of Redbridge and SN A in that particular case, because the sexual risk orders were available to court. Therefore, questioning as to whether or not they should and can be making these CS E orders. But in fact, the orders can still be made although they need to be made in relation of protecting a particular child as as opposed to a child in general and they need to be directed towards individuals in that regard, but they can still be made because even though you've got sexual risk orders, those are only available to be applied for by the police. So local authorities cannot apply for those. And hence local authorities can still apply for CS E orders. There was later the case of BC C and SK which allowed uh the uh local authority and the police to devise a protocol to set out the position surrounding dealing with these matters uh whereby there would be that communication and working together between local authorities, other agencies and all sort of police in so far as these types of orders are concerned. Now staying with this, there's also of course, other forms of protection as well that we need to think about. So with that in mind, there's been developments uh through the Domestic Violence Crime and Victims Act and then the Amendment Act of 2012. Uh So in particular, for example, uh this uh related to the offenses of causing or allowing a child or vulnerable adult to suffer serious harm. Uh And recently the offenses for uh the, the penalties for these offenses have actually gone up. So as a result of the police crime sentencing and Courts Act of 2022 the offenses uh have gone up. So you've got section 122, which is now uh the offense of causing allowing a child, a vulnerable person to suffer significant harm. The offense for that has gone up from 10 years, the maximum penalty rather has gone up from 10 years to 14 years. And also uh section 123, which relates to the penalty for causing allowing a child or vulnerable adult to die or suffer serious harm to die in those circumstances. The offense for that has gone up from 14 years to potentially life, ok. And some of you will be aware that uh there was a lot of push behind these changes as a result of Tony Hodel who uh was a boy who was seriously assaulted when he was a young baby. And uh he was able to really do a lot of work to be able to uh sue his carers, be able to push Parliament for bringing about these increased penalties. So you can see the thinking behind that there's also changes to the Protection from Harassment Act so that there were new offenses brought in as a result of the Protection of Freedoms Act of 2012, the offense of stalking, for example, and also stalking involving fear of violence or serious alarm and distress. And uh tidy with that is also uh the um stalking protection orders which came in, these came in in uh February 2020 which are orders that the police can pursue uh as a measure to really uh stamp out and reduce stalking in the area so effectively, it's effectively civil type orders which the police can pursue. We've also had Claire's law as it was referred to uh back in 2014, which came in uh the DVD S scheme, the Domestic Violence Disclosure team. This was brought in by the then Home Secretary, Theresa May. And the idea behind Theresa May pushing this was that it was following on from the tragic death of Claire Wood. She met a man called George Appleton through Facebook. She went out with him. She feared that there was maybe a history about his past which he wasn't disclosing to her. She went to the police asked them to give her some information about his past, but they felt they were unable to do so. She stayed with him. Unfortunately, later he killed her and it was only after her death that it transpired that in fact, he had convictions under the protection from Harassment Act related to previous partners. So therefore, this scheme was a device which would enable the police in appropriate cases to exercise a discretion to release certain information to persons to enable them then to make of course informed decisions in that regard as to whether to stay with somebody or otherwise. And it's only been recently, in fact, on the fifth of April 2023 that finally Clare's Law as we knew it has finally now come onto the statute books as a result of the Domestic Abuse Act of 2021. So this has now come onto the statute books. The aim and the hope therefore is that there will be more police authorities who are willing and able to be able to share information in these circumstances going forward. Now, what I want to do for the last part of today's session is I want to talk to you a little bit about the position surrounding prohibitory relief uh relating to for protection orders and also female genital mutilation uh protection orders. So, in relation to forced marriage, as you can imagine, this is obviously a very significant area and as the president highlighted and set out specifically in practice direction, 12 Jane October 2017, it's also a form of domestic abuse. So this these orders came in as a result of the forced Marriage Civil Protection Act 2007. And uh these are written now and have been for many years written within the Family Law Act of 1996. These orders can be made by court for the purposes of protecting a person from either being forced into a marriage or uh from any attempt to be forced into a marriage. But they also used in circumstances to protect a person who has already been forced into a marriage. So even if the person has been forced into a marriage, although you can't use a forced marriage protection order to end a marriage because the way to do that to end a marriage is effectively to apply for a declaration of nullity order, declaration of marriage, uh nullity order, which is whereby you're seeking an order under section 11 of the matrimonial causes that 1973 to declare that the marriage uh is um uh going to be uh well, it's voidable effectively under section 12 of the MC A I should say on the basis that the person was uh forced into marriage on a basis that there was lack of consent. So the court can't make the order of the own initiative. The person does have to bring an application for nullity of marriage order under section 12 of the MC A. But nonetheless, a forced marriage protection order is still very helpful in those circumstances because even though it won't end the marriage which has been forced into, you can get ancillary orders, ie orders to prohibit any form of molestation from the, from the perpetrators of prohibiting violence harassing pestering any form of interference with the person who was forced. Also, if the the person has been taken overseas for them to be collected, for them to be returned to the UK, if there's any travel documents which have been taken of that person, for them to be retrieved, for them to be handed to the court in those circumstances. So these are very wide orders which can be made and the court may well therefore make those orders in the circumstances to be able to protect uh that person in those circumstances. So you can see the thinking behind these, these could be applied for without notice. These could also be applied for on notice. Court can attach powers or arrest these, the court can accept undertakings. So in that way, these are very similar to no station orders that we've been uh discussing. Now in 2014, in June 2014, uh forced marriage uh also became criminalized. So there were two offenses that were brought in. Uh, firstly, uh, you got the offense of breach of a forced marriage protection order. So if a forced marriage protection order has been made, and the person then is found to have breached, the, is found to have breached the order in the circumstances. Then this is whereby, uh, if the CPS feel, uh, it, uh, necessary that it can, in fact, uh, in those circumstances, uh, pursue criminal proceedings on that basis. And the maximum penalty for this on indictment, uh, is going to be five years, uh, in prison. So this can be pursued if needs be. But then you've also got the other offense of forced marriage itself. So if somebody forces somebody to marry, uh, against their will, then that's an offense. And the maximum penalty for that high indictment is seven years in prison. And there have been successful prosecutions, as you can imagine, uh, in these circumstances, it's also important to note in this context that, uh, when it does come to marriage. And indeed civil partnership, as I mentioned, uh in the uh in the first session, you'll be aware that um the minimum age for marriage and civil partnership now has gone up to uh 18 as a result of the marriage and Civil Partnership Minimum Age Act of 2022. Now, also, it's important to note that uh there is this case of West Sussex County Council Chief Constable of Sussex Police and FMNP and T this 2018 decision. And what this case emphasizes is the fact that what has to also bear in mind that the respondent parties do need to of course, have a right to be able to challenge any order that's made. So here there was a forced marriage protection order made without notice. The police applied for the order they sought leave. Disorder was granted and the order was then served upon the parents and the auntie who at this stage had left. The UK, had gone to Pakistan with the two Children uh to, to uh arrange for them to get married. They were served with the order uh uh uh obviously overseas in those circumstances. They, they were made aware of it and the order required them to ensure that the Children were returned to the UK within 48 hours. And of course, they, they were minded well did want to comply with the order, but it took them longer than 48 hours to return to the UK took, took them about a week and that was largely because of the difficulty of being able to get arrangements in terms of getting a flight and arranging to return on that basis. And this is where at the airport. Uh there were the police and all so social services who, who were there waiting now, they could have very easily been arrested, there could have been civil and criminal penalties brought against them. And one of the things this court uh this decision uh emphasizes is that in those circumstances where these orders are made without notice, one has to bear in mind that to ensure that responders have the opportunity to instruct lawyers to be able to take advice, to be able to react to the application and and therefore to respond, you need to be able to give them time within which to do that. So it does really emphasize uh the need for that. But obviously, each case sits on its own facts in that regard. There's also this really useful multi-agency statutory guidance for dealing with forced marriage and the multi-agency practice guidelines hand in case of forced marriage, this was updated in March 2022. Have a look at that. It's really useful. Now when we uh later on into sessions, when you hear from Nina Hearer in the later session, Nina will go through with you some of that man referred to some of the statistics when it comes to forced marriage. And again, it's worthwhile being aware of those to see what the position is with uh the uh situations where forced marriage may uh be happening in terms of, in terms of the age group. And also, and also in terms of uh which countries uh forced marriage is more prevalent in than others and also around England and Wales in particular. So, uh like I said, Nina will refer you to statistics later on insofar as that's concerned. And I think it's important, I would suggest to be aware of this. As the president said, this is a culturally specific form of abuse in many cases. And it's very important to be able to act very swiftly when there are allegations of forced marriage. Now tied in with that. We've also got a position uh with female genital mutilation protection orders and this is where you've got the position with the fact that FGM is a form of child abuse and violence against women and girls. It's illegal in the UK and in England, Wales and Northern Ireland, FGM is illegal under the female genital mutilation act of 2003. Now, some years ago, uh we had provision which allowed uh for local authorities as a relevant third party to apply for an FGM in these circumstances without requiring leave, assault. This puts the local authority in the same category as being able to apply for forced marriage protection order without requiring leave in these circumstances, other persons would require leave such as say, if a family member is applying on behalf of the person or if the police are applying, they require leave to apply for the FGM. Now, if an FGM protection order uh is granted to a local authority, then breach of that order is a criminal offense. So you can see this is very much the same as what it is in so far as forced marriage protection orders and also breach of a nomination order and therefore breach of an FGM protection order is a criminal offense for which then the police may prosecute. And this is where just like breach of anomalistic order, the maximum penalty for this is uh five years uh in prison. The application for female genital mutilation protection orders are made at certain designated centers of the family court. So not all branches of the family court will be dealing with these. It's got to be the designated uh court center for these. And there's some really useful multi-agency statutory guidance on this. I'll put the link there for you. Uh This has been updated over the years, have a look at that and it really gives you a lot of information about the role of statutory bodies and so far as safeguarding and promoting the welfare of Children in that regard. Now, it's important to note that any form of FGM is illegal. There's the World Health Organization has put together various uh guidance on this, there's four levels of FGM and any uh form of FGM is, is therefore unlawful in that regard. In terms of sta uh case law, there's been a number of cases over the years which have looked at the position with uh FGM protection orders. There was a case of re Xarf GMP O in 2018, for example. And uh this is a uh an order which was granted uh which prohibited uh the parents and each of them from removing, seeking to remove or instructing or encouraging any other person to remove the child from the jurisdiction of England and Wales until she attained the age of 16. So this was an absolute travel ban so that this child basically could not leave uh the, the England of Wales for that period of time. And you can see that this was obviously a, a significant uh impediment upon the ability of the child to be able to leave the jurisdiction obviously for, for her protection in the circumstances. But at the same time, it meant that this child was going to be severely restricted for until uh she turned uh 16. And therefore, this was a case whereby uh the court uh did say that in any application to vary the order. Uh If as in this case, there was an application to vary on the basis that the absolute travel ban was unduly restrictive, then the court did say that there would therefore need to be consideration as to whether or not that should be laxed to enable the child to be leaving the jurisdiction, say for a holiday or otherwise uh at uh at some, in some situations. So that appeal was allowed. There was then or so uh the other decision sort of was a case of reacts female genital mutilation protection order number two in 2019, uh which uh looked at uh this uh decision. This was heard by Mr Justice Cobb and uh his lordship was faced with an application by the mother who wanted to take the child to Egypt to spend a little bit of time with her father. But there was the concern about possible uh FGM and what his lordship specifically referred to was that the risks associated with uh what's called a micro and the macro factors. So, in terms of what was the view of the family, the wider family, the parents in so far as FGM? And what was the view of the country in terms of what level of protection would be afforded and provided by the country if there was a risk of FGM and the judge took down into account and suggested those are the types of matters which need to be taken into account by any judge who's dealing with these applications. So then weigh up as to whether or not the child should be allowed to go for a period of time overseas in those circumstances. And here the judge did say that he would permit the child to be taken by the mother and her uh grandfather for a period of a few weeks. But that the judge would expect the matter to be returned to him when the child returned to be able to review the position uh going forward. So again, these are very, very important orders. And as I mentioned, uh there could be criminal and civil applications for these in that regard. OK. So that brings this session to an end. So you can see again a number of factors that we've looked at today uh in so far as the position with protection, we've looked at injunctions, we've looked at emergency steps, please. Protection. Ep OS in particular to see how this is pulled together. So what we're going to be doing when we meet on the next session is I'll be looking at sort of non emergency orders with you. We'll be looking specifically at the positions surrounding care and uh supervision orders. So I hope this has been a useful session for you today as always with these sessions. What I'm suggesting is if you have a good read through the notes, so reread the notes that uh accompany these slides, have a listen to the slides again, familiarize yourself with this because this will then help you as we then progress on to the uh the next sessions. So once again, thank you very much indeed for, for listening. And then we'll progress on to the uh the next part uh thereafter. And uh so far in terms of the election notes have got as far as uh page 85. Thanks very much indeed, speak to you soon. Bye for now.
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