Hello. Welcome. Everybody mime stuff to my mood on very pleased to work me to today's session through day to law. This is the course on Children law and practice by way of an update on this. This session three says, you know, with these sessions have been going through this third and final section on the Children Law Update, where I'm going through various elements off both case law on statutory provisions in Children or matters. We have you staying, giving you an update as to the importance of the updates, looking specifically at case law statute provision statutory guidance and also practice notes in all areas off Children or both private and public adoption on special guards. Related matters. In the last session, you remember spent a fair bit of time looking at somebody principal areas surrounding private Children or and also issues over enforcement mint off child arrange disorders, particularly when we're looking at matters relation to prevent alienation. Onder also implacable hostility. Today I'm going to be developing Ah, some mortar private law information, particularly looking at ITI position with parentage on. Also, we look at special guardianship as well in that regard on a fair part of today, we'll be looking at some public Children updates, looking at matters relating to funding on also aspects relating to secure accommodation on also adoption related matters, as well as matters relation to assessments and also transfer to other jurisdictions a number of key updates, which I hope you'll find useful going forward as always, a put the copyright acknowledgment here acknowledging crank copyrighted. Also, Dfe as corporate or Dodik Open government license. So this first case wants to discuss with you today is a B against CD and see, and it's really looking at the issue as to whether or not one should be informing the child off their true identity. It was a case had done recently in the High Court Justice Family Division by the on a poor Mr Justice Cohen on the second of July 2019. On this involved a child whose father's identity was unknown. Onda the child did believe that Hey said Mother's husband was his father, as did the husband believed that he was father up until today with stuff. So the question for the court was as to whether or not to order that the child's mother should in fact, inform the child assed, too. Details of the child's actual biological father, the father. Sorry, the husband who had believed up until now that he was the father. But fall into, you know, a test to get proved otherwise was of the view that the child should be told. But the mother opposed the suggestion that the child should be told of his true parentage at this stage. Ah said she was a case where pie mother was married to her husband. For years later, the child was born. I hadn't. Mother did admit to the fact that she had been having an affair, the time with somebody else and party separated. And it was through DNA testing that it transpired and was shown that he found her husband was not the child's father. And he brought various proceedings against Mother. Some which are still being pursued proceedings for breach of confidence, on also claiming back the money that he has spent in a child in the belief that he was the child from the day that he became aware to when he became aware that he wasn't the father and he's seeking damages for distress in that regard so that's being pursued. Parties have divorced. The financial relief for seniors are also being progressed. But Husband also does wish to have had ordered that the child in fact lives with him. And he does which to continue to be involved in the child's life. On that, the husband is off the view that the charge should be informed us to pay me to just seems possible. As for the putative father, who mother believed maybe the father, he was unaware of the child who, indeed, off these proceedings, a mother has had not at that stage anyway approached him about this. Not a child was joined as a party and had separate representation through Route 16.4. And as I mentioned, the husband was out of you that the charge should be told off the true identity as soon as possible. He wanted to know what role, if any, the actual Peter the father was going to play if I told in the child's life so that her husband couldn't make informed decision as to my world, he also wanted to play in the child's life. Also. Now the mothers arguments were these. She said that the child is too young at this stage to understand the issues of parentage on, she said that one should wait about two years or so so that her child would understand the genetic process and I would be in a better position to understand, really make informed decisions. The mother, therefore, was arguing that it was too early, really, to let the child know at this stage and also if the child was told at this staged and it would cause difficulties because other members of her family would become aware and that could even cause more problems for the child. But actually, as it happened, the Guardian's evidence showed that the wider family were already aware of the issue of parentage. It's so far is the fact that the husband was not a chance father, not a guardian, took the view that the charge should be told a soon as possible off their true parentage on the garden was all sort of you, that there was a love literature now, which was available to the effect that keeping secrets with her family about issues such as parentage can be very destabilizing on, and if it is left too late, it could be very destabilizing for the child, and it was very important to ensure that child was told as early as possible. There was also a state the child wasn't told. That may find out from 1/3 party, which could cause further conflict on the garden was off. You got given the child's tender age does, she told now Wells. And later on, when they are in their teens, for example, in really dealing with matters over puberty and adolescence, which can think further emotional harm and turbulence. So it was better that child was told now rather than later. His Lordship referred to a number of skin significant cases related to this issue. There was a case of reedy paternity 2007 for example, emphasizes the fact that the child, of course, does have the right to be told as to the true parentage on the court accepted the Guardian's evidence that it was better to be told when a child was younger brother when they got old. But a question was what I think I actually disclosing that father's identity to a child on issues here were that reputedly, father was not even aware of the fact that he may be a father. He was unaware of the fact At this stage, we didn't know how you would react. He may not even participate in the DNA testing. For example, you may not. He may reject a child who may wish to play no role in. We may want to play a significant role. So it was unknown. And of course, the difficulty was that if the child at this stage was told that the husband was not his father and, of course, the question the child may poses who is on? If at that stage it was unknown as to who the father is, And what role did Peter defied? Would play like within cause more harm than good to your child? So they for morning to be known about the role, if any, that the putative father would be playing in a child's life Before the child was told that her husband was not the father, the court did say that the news about the chance parentage would of course, need to be approached very sensitively with the child to make sure that it was done in a way where he was staying focused on their forward. A way to court out with this is the peach defied would be written to to ascertain from you as to whether he wished to engage in a DNA test and also whether he was to play thereafter any wrong in a child's life if indeed he was the father. In the meantime, the husband would be granted chart of agents order as well as parental responsibility. You would be granted chart arrangements specified spending time with and also parent responsibility, which the mother also agreed to. So up until the point of which Depew more was known about the computer to father. At this stage, the child would not be told us to the fact that her husband was not his father. Now that brings me on to certain practice points, particularly when it comes to seeking the year assistance off intermediaries and in particular by way of reminding you really do business guidance from last year about the guidance to family court payment for special measures. This was put together by the then president of Family Division Sir James Mumby on This is the reference to D Guide and setting out the position relating to order measures including intermediaries on intermediary assessments, which may be paid in family cases. And one of the key things in this guidance is the fact that there is no statutory requirement for age of CTS to funnel into media your assessment off on intermediate family proceedings. But wait appears to court that this is the only way a party a witness come participate in the proceedings will be questioning the judge made in order for that to be an assessment to determine the type of support they need in the quarter and second, sexually funding for the intermediary on day 12 key things he's got, it is saying, is, Hey, Jim cts can if necessary Fundy cost of intermediate to assist with preparation work outside court, but only if it's relevant in relation to the work that was done in the courtroom on a trim CTS were not generally fund prevision of intermediaries outside the courtroom. Now there is, of course, alongside this T updated kind in spite of legal aid agency on the renovation kind of something instructing of experts of April 2019 Onda Dis guidance in particular presents updated slightly. The guidance that we had previously of April 2050 and there is in particular foot on Fertile five two parked off 6.28 which relates to communicating with declined. And it provides that legal aid agency We're not funding use of witness intermediaries either for hearing golfer communication with providers because this doesn't form part of legal representation. No different intermediaries required for hearing the application. Purple couldn't make a hit him CTS and in those cases, okay. Now that brings beyond the position surrounding assessments generally and also avoiding delay by ensuring that assessments have done swiftly on how to study impacts on the timetable. And with that in mind do is the case off Freeh. H Care and Adoption Assessment. Wider Family This was a 2019 decision handed up by Mr Justice Cop on the 14th of February 2019 and with this case, the question really for the court was theirs. Whether or not a local authority is acquired, whether by statute or case law or otherwise, to notify wider family members off the existence of the child or and or to assess them when they are not proposed by parents as potential changers cares on where the parents, either or both of them specifically do not wish for the wider family to be involved. So that was the key question in this case, the fax essentially related to a child who was five months of age in foster care. The assessment of the parents were not looking positive, and it was the agency decision making who wanted to know what role, if any, other family members were to play in putting themselves forward as potential cares for a child, and the maternal family knew of the child, and none of them wish to be considered. Care is the paternal family. Have it? Did not know. The father, in fact, opposed Pattern family to be told, as he said, that he would rather the child be placed for adoption rather with these family members. This is where the local thought than within these proceedings lodged an application and apart 19 of the family procedures whereby day sort the court to guide them on, determined as to whether or not notified paternal family. The global, according the Guardian, were both of the view that deep, eternal family should be spoken to. The father have it didn't wish that he did find it embarrassing to tell his family about the fact he couldn't cope with his child. And also he didn't wish to burden them with the care of his child. The local thought did have details off the paternal family deep. Your father's for parents, and they did wish to notify them. But the question was, Can they do so? And this is where his lordship that went through the position with Deacon duty to assess, looking specifically at a case of or burn off religion doctors of 2018. In this particular case, which was happening down by Mr Justice Tice, one of the key aspects in Paragraph 11 of the judgment was that Thea local thought he should have systems in place to identify family members at the earliest opportunity. And whilst it's recognized that parents should not should put forward names azaleas possible, this doesn't prevent a local authority for making their own enquiries independently on His Lordship looked at this but took the view that this in itself does not mean that there is a free state duty on absolutely to assess why the family, who are unaware of the existence of the child His lordship also looked at other aspects. For example, Children Act Section 17 other Children at which place a do to safeguard or promote the welfare of Children until look at promoting the opinion of Children by their families. This section 22 Subsection C of the Children, which requires local authorities to make arrangements for Children, live with apparent Onda. Also wherever possible, to be cared for by family. There's the Adoption Children Act section wants subsection for which looks at the feasibility off child remaining a member of the original family. But all of these factors together, His lordship said that none of these actually create on absolute duty to assess a child in your circumstances. Yes, they do indicate and set out quite clear, uh, expectations in relation to looking at the importance of wider family, and therefore it's very child center in that regard. But none of them do actually place an absolute duty to actually seek out and assess family members, even in situations where you've got parents are preventing all objecting to local authority. Doing so. And with that in mind, his lordship also looked at the position with Article eight of the European convention. Father here, of course, was stating that he was for his private life to be respected by not having his family know about the position when the child. So he wished his Article eight rights to be respected. But of course, there's the Article eight rights of the Child in the Paterno family on, um, looking at the feasibility of a child being a member of the Paterno family and pretend a family, of course, having a child in their life on then there was also, of course, the potential of the paternal family having a child place with them, as opposed to the child be placed with prospective doctors, for example. City for that would also need to be considered. So therefore, what does one do in situations such as this? Well, the his Lordship took divvy that in light of the case law de application by the local authority on the fact should be allowed on, the father should be given an opportunity to inform his pants, and it should be supported in that process by both the Guardian and the social worker. Eso has to assist. But that aside, there was nothing in the law which actually required a local authority to assess in these circumstances. So what kind of guidance would be provided in exercising the discretion to inform the family or not? His Lordship said that discussion should bear in mind that sometimes there will be cases where there is a history of domestic abuse, for example, or the form of abuse would be unsafe for the child. What apparent for the wider family to be involved? Or it could be cultural religious considerations, which may impact on the issue off disclosure. But in exercising its judgment. Whether that's a local thought you d accord the wider family shouldn't simply be ignored just because a parent doesn't want them. I identified. One has to look at really at the circumstances to whether or not they should be notified or not. So they for what is good social work practice on Duh. His Lordship said that it was, of course, a lot of guidance. Somebody Dfe, the family rights group, for example, another guidance making it very clear that there is a need for early identification of family members in disregard on a high level of justification is required before the court would sanction not telling the family at all on the fact. See one of the other aspects towards that. If D. Patel, a family here, did not know bearing in mind the matter, nor family knew there was a difficulty in that in the future. The Paterno family may fact find out through the maternal family on that could then cause problems in that deep, eternal family could then certainly, of course, problems for father in him not having an informed them from the outset. The court also went on sale. Even if the assessments of the Pretender family were unsuccessful in the child was not going to replace from them the involvement, which would, of course, assist greatly insofar as the child's life story in any event, and therefore, with all that in mind, the court on the fax was after view that deep, eternal family. I didn't need to be told and therefore to be identified in that regard, right? Let them brings me on to some of the issues that so having secure accommodation also deprivation off liberty, this is well wanted to discuss with you. Firstly, the case of a city council against LS and others. This is a another 2019 decision handed out by Mr Justice McDonald on the fourth of June 2019 on what this particular case is looking at is this. Whether the high court, when he's invoking its inherent jurisdiction, can authorize a local authority to place a child in secure accommodation with a child of 17 years of age who was not looked after by the local authority. Bunny situations would have parents. In this case. The mother objected to that course of action, and we're in the circumstances. It can be satisfied that the child was at great risk of serious and possibly fatal harm. So the question is, can the court, using its challenges to kill the high court, authorized this and his lordship before the reasons we'll look at, decided that this was not possible using Denounce jurisdiction route. The case itself, by the background was one were by the child was a significant risk of criminal exploitation. Chart had been involved in disputes with members of the community, issues serious issues over use of firearms. Child was found in the company of drug dealers. He was a risk, a victim of risk of criminal exploitation. He had witnessed stubbing. He was later found carrying various weapons to use to assault people. He had been involved in the altercation where he himself had been wounded with a knife. Uh, he was attacked in the street by people with knives and machetes. Andi he was a significant risk not only to himself, but indeed also to others that he was also served with a grunt gun crime nominal notice which allows him to receive support and assistance should he seek it in relation to the risks that he was subjected to on that the police were very clear. They felt that the child's life was at risk. But he did not agree to go and live elsewhere with his mother, and in fact, his mother was also advised to leave the area and look live elsewhere with the other Children. But she didn't decided Not too. And this is where the local authority then decided to lodge on application via the inherent jurisdiction of the high Court. So they lodged a former C 66 Onda. They were effectively seeking a deprivation of liberty order on, but there are also seeking recovery order. It's under the adoption. Children are essentially the application, which came before the judge took the form of seeking an order which was granted, which allowed the police to enter any premises identified to be able to detain the child on Dysart for weapons, as well as to remove the child from the premises to restrain the child on. Also to restrain chancellors to enable them to be kept at a place pending further order of the court. So essentially that the order that was made was somewhat wider than the usual terms of a doll order that you would get on dumb. The order was made fighting in having jurisdiction off the high court as effectively. It allowed the police to search premises, detained a child to restrain the child and transport replacement, and placed the child and deprived him off their liberty. Their so effectively was of a wide form of a deprivation of liberty order that a child had said that the order should not be made. He wanted to be back with his family and he objected to disorder remaining. The mother opposed a doll order been granted and she saw for the child to be returned into her care and this is where the local fortune and argues that it was not possible for him to apply for an order under Section 25 off the Children Activate nine because the child was not looked after Andi, quoting you Section 20 subsection three on the basis that the child's welfare would be seriously prejudiced because the mother herself was not consenting to a child. Bigger place for in section 20 accommodation shows he was objecting and hence she was using Section 20 subsection seven. So that's what a local authority were of. The view that the awning provision available for the court in the circumstances to be able to depart a child onto a neighbor child to be placed in the unit was fire the inherent jurisdiction route. The local thought, he said, that they accepted that Section 22 a Section 100 subsection to your Children Act, prohibits the court from exercising the inherent jurisdiction, but only insofar MERS to require a child to be placed in the care of ponderously provisional local authority or to be accommodated by local authority. But a local thought was saying that they would not contravening that provision by inviting the court you section 100 subsection two because they were saying that we went using the order to require a child to be accommodated, but instead to simply authorize the local authority to accommodate. So they argued that this was different to other situations and therefore Section 100 could be used indoor circumstances. But the court took a different view. The court said that in fact, there were restrictions on the use off section 100 ignore circumstances. It cannot be used so as to require a child to be placed in a care off order book. Ponder supervision of local authority on here The court took the view that the reasons for which their local thought were seeking the order so as to whether it's require or authorize a child to be in secure accommodation, we came within their something for the judge was faithful, even stating that the court was not permitted to use its inhabitants stick into also as a child placement in the manner requested by the local thought. There was no provision therefor, which permitted that to be done to the application of the local authority was dismissed on interim orders made by the judge were in fact discharged in the circumstances again, you can see that this is a very significant case which really emphasizes the limitations in relation to secure accommodation or north or deprivation of liberty. For Children who are 17 on who may not come within the definition of being looked after and where the parent of the child is objecting, touch are being accommodated. Indoor circumstances. The other case want to mention is the sulfur council case and m. This is about deprivation of liberty in Scotland. This was handed down by Mr Justice McDonald on the 17th of June this year in his case, whereby a child who is placed in Scotland was such that the court has been asked to approve the placement of a child. My way of the Scottish ministers and Scotland be nice to approve this and the Red Book, which was a 30 states that one needs to apply from more order if one wants to place a child in Scotland for purpose of depriving them off their liberty on a truck trial. Judge here in England had made an order under the inherent jurisdiction authorizing the deprivation of liberty in Scotland on uh, English Judge had recorded that the local authority had intended to apply to the Court of Sessions My weather receptacle order. You have even thought of local assault intended to apply 40 member order. They did receive legal advice. And we're told that there was no provision in fact, unlawfully subjected childhood deprivation of liberty in Scotland other than through a secure accommodation order. Onda therefore day went some difficulty and then being able to satisfy the court that, uh, the order that was made in England would actually have effect in in in Scotland. Andi regime that the child was subjected to in Scotland was such that the child was subjected to 2 to 1 stuff ratio. Child with the stuff was a way of the child's, where parts chart would remain in the room at times where it stuff would remain in the corridor outside. And this is one whereby the child was monitored by staff. Did a night charge was observed every 15 minutes by staff unlocking the room. Uh, this was a case we accessed engine that was supervised. Child was transported to school. Him back on the child was permitted 30 minutes each day in a way which could be underground sold. Klytus met the criteria off bigger deprivation. But evidence had also been obtained from a lawyer from an expert in Scotland, and the view that was given was that deep placement a child was placed in in Scotland was not approved by the Scottish government as a secure unit on that this was one whereby, uh, D evidence that was given in particular was that although D Section 25 of the Children Act in Section 11 line off the 2014 provision in Wales was start staties were mended by the Children and Social Care Act 2017 so as to enable a secure accommodation automated England wells to be recognized ineffective in Scotland. That only applied to secure accommodation orders or not deprivation orders. And the expert said it was unlikely that the Scottish court recognized in English in how jurisdiction being used to sanction placement on a non secure unit in Scotland on they forget. What the court has done now is the quarter journey application. So I stood any neighborhood in a house or the court of sessions to be contacted to then enable a decision to be made as to whether or not they will or will not recognize. The order has been made in England using inhabit jurisdiction, and therefore the question is whether or not a deprivation of liberty Automated Needle in the wells using that damage jurisdiction should be such that one is able to get a mayor order in Scotland to recognize it and therefore the record. This decision will then determine whether or not Dotty's always not possible that 10 picks me on to this other case, which looks at a very useful analysis surrounding the position with possible transfer of a child's case to another member state. And this, as you know, is a significant issue when we look at Children proceedings, particularly when they are connections with another member state. And therefore, the question is, when will the court transfer the case to another member state? So this is a case of a local authority and E at 2019 case and down on the 29th of May 2019 on get involved three Children, uh, living in England with the mother. There was 1/4 child live with maternal grandmother grandfather out into a vacuum and by where background This was a case where by the Children had initially come to England in England and Wales on but had been previous proceedings where the court at that stage had decided that the Children were not habitually resident in England, Wales and they will return to Slovak you with their mother. The court had used the provisions on the section 20 so under Article 20 or Brussels to revise previously with a view to being up to make immediate interim orders for protective reasons. Eso even know English court did not have jurisdiction. Previously, they used Article 20 sores to have a limited role and providing intra mortars with a view to than providing it in imminent protection, and subsequently that the mother then returned to England. On it was later that in fact de Children became subject to police protection. That dust, because there was a fair, were made by a member of public. You saw a child being assaulted by the mother. Mother stated that she wasn't assaulting a child, but they were play fighting. The Children were when we were placed in foster care on an emergency. Orders were brought medicine. Putin's were brought, which led to keep cities being lodged. But that's where they need to be a fact finding hearing to determine the cause of injuries. And that's when the show Jurisdiction also became a live issue. With that in mind, you'll be aware that when it comes to Article 15 off beat I are, it provides that quarter a member state having jurisdiction will have jurisdiction. If it's considered that the court off that member state is best placed on By doing that, you have to first and foremost be satisfied that the child has a connection with a particular inflection. Without other member state Onda, we want us to then determinist whether the child would be better placed in a way with a country, that country be better place to hear the case or part of it on whether that is in the child's best interests on, uh, it is, of course, possible to stay Part of all of the case on One would then request another member state to take action in a pulpit. Circumstances on the the court here did say that there were a number of situations where there's been case law which has looked at issue off, uh, transfer and one has to firstly, look to see whether or not the child does, in fact, have a connection with another member state. And you're looking at, for example, whether the other members day has become the habitual residents of the child, with its the former habitual residence of the child with It's a place of Charles nationality or whether it's not, but you're residents of the holder print responsibility, order a place where the property of the charges located, or what concerns were so here on the facts. The court satisfied. Of course, the child did have a connection with another Members Day, in this case, which Slovakia and therefore the question was as to whether it should, with English order, Slovak in authorities, which should be taking the matter on the circumstances. Now. This is where the court looked at a lot of the previous case law on this matter. In many of you will know that there's been a number of cases which have looked at issue off, whether it should English words, courts or another member state when should be looking at this. Some of the previous cases, for example, have emphasized that one cannot argue that English or Welsh courts are more competent. And other states, uh, just differences in practice, sees Andi use off non continent, non consensual adoption, for example, is not a test. And also the Article 15 decision shouldn't be modeled with what's the best outcome for a child, whether it's, for example, special gunship charter arrangements, order or adoption. Andi There was reference to previous case of Ri n, where Biden, after judge was wrong to find that D on giving court was best place without considering the short term effects of a child bean being taken to another jurisdiction. And with that all in mind on the facts here, there were arguments that have been being advances to whether the Charles case should be transferred or otherwise on. The Slovak in central authority were arguing that the case should be transferred on the basis that the relatives were all in Slovakia. Onda, also on assessment of Dick Grandfather in Slovakia, started and could be completed by professionals wonderful understanding of the process. Also, it was been argued that Slovakia was at the country of D Children's at former habitual residence, and not all the parents Onda language was familiar to them in that regard and also it has been argued that the Children had not made straight strong ties with the English foster carers mother also sort transfer. She said that life in the UK had proved much harder than she anticipated and she wished to return to Slovakia and that she claimed up. There's very little support available for mother in the UK The local thought in the Guardian have a sort for the chance case to be dealt with in England. They said that there was audio police investigation in England on it was less likely to run smoothly if the case was transferred on. The Children, they said, had settled here. They had bean in England now for about a year and a change of placement would be detrimental to them. And also they argued that you need to be judicial continuity. It's the court, therefore, looked at the arguments for and against transfer in this regard, Onda under facts The court did say that it would be much harder for the fact finding to be done overseas of the case was transferred at this stage and also most of the witnesses were in England and the Children were settled here and therefore this stage, the court decided against transfer. They would deal with the fact finding first, and then once that was determined, they could then look at the show transfer there after if it was found, it was in the Children's best interests to do so. So you can see again. It's a very significant case this because it does pull together somebody keast runs. So handing, whether or no chance Kate should have should not be transferred. Uh, elsewhere. Okay, that them brings us on to this other case of re x f g m order number two. This was a 2019 decision, and this was a case and done by Mr Justice Cobb in July. At this year, the case involved a child who was two years of age who had been subjected to her from a gentle mutilation protection order, and the child had been was living in England with her mother, and they had been previous proceedings in relation to his charge about the case of Re X, a child 2017 and also three x. The 2018 decision father was Egyptian and he lived in Egypt. Parents were married and the father did not have right of entry into the UK There were previous proceedings like to say and the previously the court had made a worldwide ban until the child was 16 years of age. Therefore, the question for the court on the facts here was whether or not that worldwide ban should in fact continue or whether it should be relaxed for a period of time so as to enable Mother to take the child for one week trip to Egypt in September 2019 to visit the father and neither mother nor father contested before the order to remain. But it was more a question of whether or not the mother would be given permission to take the child on this occasion to Egypt for a week's hard data. Spent time with the father, and it was accepted as a chart grew older. The rest a charred would increase. Mother did say that she, of course, did wish to make trips off brought to take the child. The garden was off the view that the world one man should continue on, and at first the garden was interviewed at the charge should not be allowed to go, but later the Guardian to view that maybe short trips provided sufficient safeguards from the place that should be permitted in certain situations. The local thought to work view that the risks of FGM to this child with very high Andi if the court were going to allow trip than it should be very limited and should be carefully. I set out on the court, looked at the position with FGM and in particular that the practices supported in many parts off the world on the court did say that there was no religious expectation for f. G. M. On the court said that they would not justify f g M. It was a crime. It was carried very seriously, Mr Child, both physical and emotional psychological harm on any form off significant. Any form of FGM, the court said, was significant harm for the purposes of D criteria under Section 31 of the Children Act. So I looked looking to see whether or not the charge should or should not be allowed to go or not. The court said that one needs to do an assessment of risk and here there is a need to look at what's known as a contextual considerations for what's called a macro factors and then the individual considerations of the micro factors. So this will help to judge to decide whether or not the charge should or should not be allowing the child to go indoors circumstances so here on the facts. Applying that principle, the court would then ask, firstly, the macro factors which would be matters relationship, for example, what the prevalence of FGM was in the country, to which it's a proposal proposed charges go was to society's expectations of FGM in the country. What's the prevalence of FGM in the eight region They're going to be going? Is it illegal in that country? If it is, how effective are the authorities to take action, for example, on what safeguards come put in? Then you got applied at micro factors. So was there a history of FGM in the child's wider family? What was the view of the parents? What do you what was the attitude of mother and the father generally to this on what was the power bones in? The family wants the attitudes of the wider family. What safeguards can be put into show insured up. The risk is mitigated than what could your thought is do in these circumstances, and that's where applying to two factors here, the judge was reassured by the fact that although there was a history of FGM in the paternal family, both parents have been assessed on both opposed vehemently the possibility of their daughter being subjected to FGM. The court on the facts did decide to relax the world by ban by allowing the mother to take the child for week. The risks were high, but with appropriate undertaker that were given. The court said that additional safeguards would be put in place by the undertakings, and also the maternal grandfather would be going with the mother for Pepsi's after trip on that this was a significant protective factor on the foot of mother was allowed to go, but with significant undertakings which were put together to ensure that the child safety was reassured and respected. Now, one of the other issues I want to mention today is the issues surrounding reopening off findings of fact is was a case handed down recently by Lord Justice Peter Jackson sitting in the quarter pill on a question here really that's on. This is what options are available to somebody who essentially wishes to challenge findings of fact in funding proceedings when there was perhaps new further evidence, which is available now but which was not available at the trial in relation to the Cape Ceilings. So what did I do in this situation? Do they appeal to a height, different court or condemn applied to the trial judge to reconsider this evidence? And if they can do both, which one is better? So that's really the issue notes being raised in this particular case, and that the issue, therefore particularly, was as to which, which would be the best course of action in circumstances that such as this on the view that was being taken. It was very much that one has to look at the fact that this is becoming really more of a common issue, particularly given that care proceedings are now been concluded in less time that this was a case whereby it involved a mother who had three Children on a younger child. He was only 10 months at the time, had cigarette burns on the arm Mother had giving, given different explanation. Thus to cause off the injury. The local thought he had commenced care proceedings on at the fact finding the court had made findings do. In fact, injuries have been caused either deliberately or through negligence. Care orders are made on. Mother wasn't appealing against the care orders, but what then happened is in the Cape Savings. They had been evidence given by dermatologist. But I want to start care. Proceedings have been concluded that have been parallel criminal proceedings. The police had instructions a plastic surgeon who said that the account that given the mother had given could account for the injuries, which doesn't let to the criminal charges being dropped. Mother therefore sought to appeal out of time on the basis of this further report in that she claimed that of course, dismayed and explain the cause of injuries. And therefore this wasn't a case where by she had either deliberately, a reckless negligently recklessly caused the injuries, so she wanted to appeal out of time. Onda question, therefore, was to reopen these findings. How do you do that? Do you appeal, or can you actually take the matter back before the same trial judge, for example, and the court did actually grant believed to appeal out of time on the matter was remitted to be heard before the same trial judge decides on and consider this further evidence that had been obtained by the plastic surgeon. But what the court decided here is when one is looking at re considering the fact finding due to new evidence, Uh, and of course, this is going to be a much bigger issue going forward because processes are shorter now. Kept singing have been concluded in less time, and also the criminal proceedings often do not have complete around the same time as a kip. Scenes and new evidence may then come forward in the criminal case later which don't want may, which to used in the case. And therefore, what has to be determined is whether the care case in this case should be looked at again by the same trial judge or whether it should be heard by a different, constituted appeal. Court Onda court did say on the facts that this case showed that in fact, the further evidence should in fact be referred to by the same trial judge. This doesn't mean that it's open to a person to challenge findings just because they don't like the outcome. Of course, the court needs to look to see whether there is any legal significance off this additional documentation that may well have been made available on. And therefore the court did say that Family Court can review its fact finding. That's it does have the right to review song decision, and therefore it's better if it goes to trial Judge. Because, of course, he or she would still recalled the case on day elected, not the case. Well, it will save expense and also less delay on barefoot. Better to do this. But of course, his one is alleging that the trial judge made a decision which was inappropriate and perverse, and of course, that may require on appeal to a different judge. But if it wasn't that, then this is one whereby the case would be better than going before the same The trial judge, and this is where his lordship did say that the family procedure was committing may wish to consider this point with the reach down, amending the family procedures to permit this to be done in such a way going forward that brings me on to some aspects of adoption on Dad special guardianship, and I wanted to raise a few cases with you, insofar as that is concerned, starting with this case of re f a child, this was a 2018 decision and vampire Lord Justice Peter Jackson as leading judgment. It's one world by care placement. Orders were made relating to a child who was 15 months of age on care. Excuse me and Kevin. Placement orders were made, and Mother appealed against these, which that was in fact, a successful by way of background. This was a case where, by the mother has went to stay in a refuge. She had started drinking. The father of the child had been bombed on. Mother had mean that the father had been sectioned also due to attempts at committing suicide. The mother did keep drinking, but she also managed to address her drink habit so that, in fact, she had been able to look after a child. For some 11 months, they had been assessments carried out on one of the key aspects was that the psychiatrist shed that mother that have made home for use of alcohol, 40 short tobacco dependency. But the opinion was that she had provide. She abstained from alcohol. It was unlikely that this would effective mental health. To the extent that it weren't made it difficult for her to pay. With the child doing the charts of minority. They had been evidence that mother had excessively used alcohol in previous proceedings on the father did of a personality disorder. Now, the local thought did in fact, recommend the placement of a child with the mother under a supervision order. But later on, the local thought became aware that they had been an instant, Uh, well by out of parents had been seen together with the child in a pub. On it was accepted that the mother appear to have been drinking at a meeting, which, when she denied she was at the pub but that nonetheless, the local thought took the view that adoption was going to be seen as a last resort on that even know there were concerns that had increased recently. The local authority suggested that day would be still looking at the possibility of placement of a child, a home with mother undersea, provisional, any fact Mother had been looking after the child successfully for a period of some 11 months of the local thought, it did recommend a supervision order to guard inhabited, seeking a German tutti I rage on day. The Guardian wanted more information so far's at the position with at Mother's Lies kind of. Later, CCTV camera coverage showed that the mother was in the pub with the father at a meeting on. She had lied about the use of our goal over the previous 12 months off, particularly having had met with the father. The social specifically referred to the toxic trio I e. The mental illness substance BC's and domestic abuse and all three Together we're features what, which surveys in this case and a social because of the view that the child was that significant risk off farmers resort of physical harm due to mother's dishonesty. On that, therefore, that the local authority, now as the Guardian changed their position on Day one, are seeking for Karen placement orders. It was found by the garden that the mother need to be abstinent for some 6 to 12 months before a plan of placement where there could be done onder try judge made care and placement told us on that basis. But that's what let the appeal being killed by the mother, not on appeal the court review that the whole picture had not been looked at in particular. The fact was and remained that this was a case where by the mother had successfully been looking after child for some 11 months. She was not an alcoholic and did not have an addiction. Her drinking was seen more behavioral, as opposed to Dependent on. This is different to other families who come to the family courts where there may be alcohol dependency and therefore his lordship decide up. One needs to look at the risk which mother posed what was the risk on the consequences to child if mother did not comply with the expectations of the work agreement on. Therefore, with that in mind, the court specifically referred to the case of Ri a HRD 2015 decision whereby this requires the court to ensure that her local thought his under courts are not there to socially engineer parents, and also one has to look at the link between the act on what impact that has is far, causing the child to suffer or likely to suffer significant harm. And therefore here, the courted say that lies will only be relevant if they affect the welfare of the child. So here the court decided that they would set aside two Karin placement orders. Do a number of unanswered questions here, such as How likely was it that a child would still suffered a physical harm? That was a 13 top six, Trio three or Andi? If mother did regime her drinking, what impact would have on the care of a child and also the local thought he needed to also consider the possibility off another realistic option, which is a possibility off a k order, a home with mother and they forward that provide additional safeguards. So because those factors don't need to be considered on the fact that care placement orders were in fact set aside descendants of the case of a local authority against A B and C. D. This 2019 decision on down by the high court on it's a useful case which really looks at special gunship versus adoption and that long term fostering. And it was a case where, by the local thought he had lodged a care application. They saw care and placement orders for the younger child on a long term fostering For the elder child, Andi was a case where body had been another child, a two year old who had, sadly being murdered by his father. The father was sentenced to life on the other two Children who, uh, the mother had who this man was not. The father off was subject to care proceedings that a younger child, a plan off the local, thought he was one of adoption ending out chart. One of long term foster care, not a contact with the mother was attending was actually very positive. But difficulty was that when she didn't attend that cause a lot of upset for the Children. Mother attended the lack review. They looked after Children's of you, whereby she made it very clear that if the Children could not be returned to her care, she was very much taken a view that Children should remain with the current foster carers would but with whom the Children had formed a positive relationship with the mother, sadly wanted to have have some money to visit her parents on, rather than spending that money for that purpose. She instead went to a whole tower with some friends on. She spent the weekend drinking with their friends and made very little enquiries with the foster care is about Children. And if yours have failed to attend a part of the final hearing. So possibility of placement with mother was ruled out there was an independent soldier for assessment, which recommended that mother needed up to three years off therapy to be able to make an effective change. The question, therefore, was what should be the placement on the local authority were out of you at that term for four year old and a three month old. Foster care would not be appropriate and natured, really. People seeing a plan at for adoption. So this was a case where, by wonder, local thought it a lot an application under Section 54 4 because they thought in light of mothers inconsistency over contact the mother. The local thought he needed to have the authority to be able to place a child that to be able to refuse contact given it was inconsistent, and they wish for that to continue. But in terms of the placement for the Children. The local thought took Vida adoption would provide the level of security which was necessary. Long term. Foster had the advantage, of course, and maintain your links with the birth family. And here on the facts, the court did take the view that this was one whereby it would be to search for an adoptive placement for a period of six months, failing which local thought would Then we're looking at placing both Children in a long term foster placement on. As for the section 34 4 ordered, this would remain in place until such time as Mother Mother was prepared, a neighbor to show more commitment in that regard. And the local authority, therefore were permitted to continue and having the Section 34 for order. No, you can see that there's been other cases also relating to special gunships with this case of WP Children on. But this was a case handed down also earlier this year, whereby here special garden supporters had been granted in relation to two Children in favor of paternal grandparents. Mother appealed against these orders on that, she argued that the threshold was such that the court had not weighed up fully and properly de risks that the grandparents posed. In particular, Mother referred to the fact that he alleged that the grandmother had poured soap into the child's mouth, Waas holding a child down. But in fact, the court said that that wasn't the case. Didn't find that. In fact, it found that the grandmother had whites soap on a child's mouth as a lesson not to swear that this was a case where by the court did look at whether it should be special gunship or adoption. And what I found particularly useful about this case is the court took time to really look at what special gunship Actiq doesn't in terms of an order. And he can see here that I've emphasized and set out here what the court said in terms of special gunship, whereby the trial judge said that by making such an order, it doesn't take away. Mother's parental responsibility does remain entitled. School reports, she does remain untouched. Visit to school. She does remain in touch. To be informed as to what is going on and also in tight would subject the advice of the local authority torso. See the Children's he can see this of a very important aspect of this case. I liked it. The court did look at which order should be made to look specifically at threshold on the court was on the view that the appeal by mother would be disallowed on the special branch. Reporters would remain. The court also said that in sub so far, the file order is concerned it was not drafted properly in that when one looks at for short, you need to ensure that showed is clear. On the basis published, a threshold is met and therefore the K older should have had the base of the special on next to it. In the circumstances here on the facts, the Children needed as much stability as possible. Onda. It was felt that deep special guard support in the circumstances was divide to order that size to enable that to remain so therefore, that remained. Now this other case of Ri e and another and mother and father is a useful case which is an appeal against refusal to make a placement. Alderdice was handed down by Lord Justice Baker on the 12th of September 2019 and this is one word by the local thought in the garden had appealed against uh uh on order that the trial judge had made refusing, making over placement toward in relation to a 10 month old child on the trial Judge had decided that they were resort grounds to believe that within a period of some 12 to 15 months, the parents would undertake some work which would enable them to regime care of the child. And they put a judge had dismissed the application for a placement order. There had been a psychological assessment on a taken of the mother on a psychological assessment showed that it was unlikely that payments would engage successfully with therapy. At the trial, Judge did have the benefit of the psychological assessment, and Judge was satisfied that old or threshold were met. Uh, that they need to be a period of time, something 12 to 15 months to enable the parents to be able to bring about the changes which required to be able to resume the longer term, full time care off the child. But that's were on appeal. Uh, deep Appeal Court was successful in saying that, although yes, of course, in appropriate cases, there could be a Germans force quite significant period of time here on the facts. There was insufficient evidence to show that our weight of some in 18 11 18 months, which is how long potentially was going to take, was a decision which should be done so as to enable Children to be able to resume the full time care of a child. It was a decision which, on the facts, did not support having can be made on that therefore, that delay was going to be significant delay to child. There wasn't sufficiently solid evidence before the judge to conclude that the parents were committed enough to maintain those changes so as to justify the delay and therefore not basis. The appeal was permitted. Finally, they wanted to bring to your attention. This other case of our B 2019 of Second of July in this case is there is another one off these various cases which have been handed down, setting out the fact that judges should not be placing an appropriate pressure on parties to reach a new agreement. Essentially, this is one where the mother appealed at the care and placement orders that were made on day there were various grounds off appeal. First thing. Mother argued that the judge had not provided adequate reasons for the making of the care and placement orders. Mother said that she neither consented nor poster making of the care orders on the fact that her court regarded. I was consenting simp simply by stating that that in itself was a consent. And also the judge, it was argued, placed on reason of pressure on the mother to change her position and therefore prevented from having a proper contested hearing. Now this is what a court referred to a number of decisions on this matter. There was a case of Ri G, for example, whereby one has to ensure that given the nature of these orders, a parent has every opportunity to be able to put for their argument fully and sensitively. There was. That s doubly case, of course, whereby there is. I need to run the cases robustly and therefore court should not stay away from making gorgeous which unnecessary. But then there's also the case of N l. Where by Mr Justice porcelain, particularly in that case, said that justice must never be sacrificed upon the altar off speed on. Therefore, when one looks at one of those cases here on the facts, the court did say that family judges are under considerable pressure dealing with these cases, and they have to be vigorous on essentially case management needs to be done appropriately. But here on the facts, the line had been clearly trust, uh, when the judge made certain comments such as the judge was stating that the judge had to see what the outcome was, which is why it was sad. But it seemed that was the reality of this situation when those types of words but being used there was an argument that there was an element off denying, having had been crossed. And if, on that basis, the court did allow the appeal on the third ground of appeal on the basis that mother was placed under in a probe placed under pressure to effectively not contest and therefore the Kevin placement orders would be set aside and and we heard by a another judge. Okay, so that brings this session to an end. So you can see we've spent a fair bit of time today going through some more aspects of private and particularly public Children or also looking at some aspects of adoption. Or so I hope these three sessions have been very useful for you. Bring any up to speed with some of the fundamental changes on case law and statute provision in Children or particularly due in 2019. Can I thank you As always for listening Onda, speak to next time. Thank you very much. Bye for now.
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