Comprehensive Children Law Update Stage
Hello. Welcome, everybody. I'm very pleased to welcome you to today session. Money softer, Mahmoud on my solicitor and also a lecturer on today that I'm going to be speaking to you about Children Law on practice Distant Session one Now disease, The first of three sessions where in the learning outcomes here you'll see that I'm going to be going to a practical discretion off both case law and statute to developments in all aspects off Children or under in particular, be taking you through some of the key updates running both private on public law cases, which will incorporate within it aspects related to adoption related matters and also special guardianship. Andi particular would be looking at somebody stashed developments in this area both private public loss or today than it is thief. First of three sessions on each session, I'll be going through various aspects of Children or with you in total of three sessions. Will, uh I don't 23 hours, and the aim is really to give you as much updates on relevant information as possible to bring up to speed with this field. Onda, as always we'll have done, is off made reference to the copyright acknowledgement. So theme case lost. Ashley Prevision is protected by crank up right and also from a dfe as corporate or from the terms of the open government license. So today they want to go to produce. He's going through some aspects with you, particularly on public Children or proceedings would be looking at to start off with some aspects of warship on. Then I'll be looking at interim care orders and also the position would costs on injunctions. There'll be referenced two cases related to female genital mutilation in particular FGM cases, and also special guard supported and charred arrangements orders on down towards the latter part off Today session. I'll be looking at some aspects of secure accommodation also when it comes to matters related to adoption in particular. So if I couldn't start with this case of Reacts warship family proceedings, this is about Children giving evidence in relation to Children who may be wards of court. And this was face was handed down by Mr Justice Knowles in earlier this year. The case itself involved two Children aged eight and 12 both who were wards of court and had been for some time their father had died in India following a violent attack on the mother was on trying in the year for the murder of the child's father. She was reminded and cost on bail on the application before the court was for one of these two Children to travel to India. Sores to answer witness summons to be able to give evidence against trial at the trial in relation to the mother and the child had provided a statement setting out that the child had seen the mother witness Adam designed a child had witnessed a mother together with somebody else killed the father whilst he was sleep in the same room was the father. Now the child's welfare, the courted say, was such that you have to look a child's welfare. But there was a tension here between the child's welfare on, of course, the civic duty to assist in new courts. US to really assist in terms of establishing what happened on, uh, the court, therefore had to look to see what actually could be done in terms off warship On the court did say that when Children are made wards of court, of course that no important or major step in the life of the ward can be taken without obtaining approval. Firstly of the warship touch under this needs to be threats of course, subject to I don't need to ensure that the war court can exercise its powers were in situations where it may well be appropriate to do so. On a tension between these two principles, I e. Balancing the child's welfare verses their civic duty was looked at in this other case of in the matter of a board of court. Just 2017 case were by. In that case, the child who was warded was required to give evidence in a criminal trial on the child had been witness part of police. Andi, the then president Family divisions of James Bumby, said that in situations such as this, there was not and never has been, any principle to rule that consent of the court was acquired before the police of US Security Service could interview a ward of court. Of course, this case also looked at the possibility of special measures, but incorporated as you know, these came into effect in November 2017 by Part three a a pack destruction three a and Therefore, these could be used in cases such as this way. If the child is not a party, but he's a witness, and in this case, then special measures could be could be affected. So what did the court decide? Well here, under facts, the court did allow the child to actually go to India for the purposes of dancing to a summons. There's no presumption against award giving evidence in criminal or civil cases. Just simply, it was them having to give evidence in another country. Onda court didn't need to give her card to special measures on the fact that me to have a regard also to the other significant case. Many of you will know about the Supreme Court decision of redoubling of 2010 about Children giving evidence on the court here did say that other than the child's account off, what the child said to the police had happened. There was no other eyewitness account off the killing on. Of course, there is crucial for the resolution of the matter that the child gave evidence in these circumstances and they form the basis. The child's evidence was crucial, and if a child will in fact be called to get evidence on the facts again, you can see a very significant case which looks at the position so having Children giving evidence. Now some of you who do public child keeps things will know that often will have the first appearing whereby they may well be on application than being sought by the local authority for an interim care order to be granted under Section 38 off the Children Act in that application may well be opposed by respondent month parents and indeed sometimes also the child for the Guardian on this case of Ri G Children Fair hearing of 2019 emphasises how important it is to ensure that the court does not place any improper pressure on apparent to agree or not not opposed to making often order the case here. Consent to Children. The local thought had large care proceedings and it was mother here who had appealed from the interim care order that had been made in respect of her Children. She claimed that she had been subjected to improper judicial pressure at a hearing which led to the orders be made without opposition on her part. This was a case where by the police have been called, which led to T police protection will exercise. Parents had agreed that you wouldn't be voluntarily accommodated. Mother withdrew her consent on the local authority. Commenced cape ceilings, the interim threshold relate to the police. Having have been taken into police protection. The reporter passed domestic abuse between the parents. Father's lack of cooperation with assessments on alleged filers between a mother and her partner school referred to social services due to poor school attendance and also a number of issues which were being raised. And Mother claimed that she had been subjected to improper judicial pressure and that she didn't feel. Therefore she agreed freely to be making off d and from care order. On day, it was argued at a comment study Judge made gave a strong indication that the judge had effectively prejudged the outcome and therefore mothers. Article six. An Article eight rights off the European Convention had been breached claimed that the judge had had really prejudged the outcome by warning that should not agree to the order being granted then that she would be stuck with dear findings and by also to judge referring, threatening to refer to match to police and all those CPS, which would put mother than under extreme pressure. This was also seen as really overbearing mothers wheels. On that basis, mothers was arguing that there was improper pressure placed on her local salty have took the view that the court isn't high taught at two case, much appropriately. Andi mother had the benefit of full legal representation here. And neither of the parents legal team sought to challenge the judge in the event that the judge felt the judge was in the event that they thought that the judge was really intimidating, exerting pressure on the mother. In the circumstances, the local thought to claim that would alter judge was being bullish. This wasn't classed as being bowling in that regard under professional ship be used to exercising or what. A court specimen views Asst to really case management in a way which matches should be progressed. And this wasn't one of those cases where improper pressure was being placed. The Guardian felt on the mother did consent, but they go on trial on appeared of court felt that the Guardian did not really look at the way in which d order had been made on the court did in fact decide here the quarter people did decide that improper pressure had been placed upon the mother. In the circumstances Andi judges must not place and reason pressure on a posture changed their position. Onda. Of course, the court did accept that Yes, family courts are very busy. But despite this on proper pressure would be inappropriate. Andi, regardless of the fact that the mother had the benefit off legal representation shipment, she did not get a fair trial and therefore they had been a failure in the procedure here. Therefore, the interim care orders where in fact had set aside. So again you can see a very important case which hammers home the importance of ensuring that Article 16 articulate, hopefully respected India circumstances off the case. That then brings me onto Theis. Other case of Ri Kay, which was handed down late last year on It's an important case which hammers home the point about about ensuring that if a child is to be removed from parental care, where the child is subject to afford care order at home, that one is to ensure that there is compliance with the case of three d e. There's 2014 case whereby local authorities need to ensure that parents have given, unless depth batteries urgent at least 14 days notice of the local thought. His intention to remove the child on that the parent may wish to consider if they which to apply for discharge off the care ward in the May. Also wish to consider apply for the injection to prohibit the removal indoor circumstances. And here it was felt that the court had not considered the protective measures that were available to enable a chart remain in the care of the mother. And therefore, the court did fail to consider that the removal of a child was the only option on old. Other options were available to record, which had not actually been fully explored and considered in the circumstances. Now this other case of read to a Child in From K Order Jurisdiction was a 2019 case under turned in the family division of the High Court, by Mrs Justice knows and what this looks that is really questioning the point about whether an interim care order can in fact continue beyond a child's 17th birthday. The court here had made interim care orders on Children. One child, he was due to 10 17 soon thereafter. On the question, therefore, was as to whether my interim care orders can in fact continue beyond a child 70th birthday, there was reference made in particular to keep two key provisions in the Children Act. This firstly section 31 subsection three of the Children Act, which provides that no care or supervision order may be made with respect to a child who has reached the age of 17 or 16. The case of a child who is married on Section 91 2 says that any K border other than interim care order shall continue to enforce into a child reaches the age of 18 unless it's port one end sooner. There's also, for example, Section 31 subsection 11 for example, which provides that care water has the same meaning as an interim care order. In new circumstances, So does unwitting corporation in from K order. Onda Court therefore, looked at these particular provision on that the court looked at previous authorities insofar as the Syrian particular the previous case of Ri a warship. This 2018 case goodbye there was no better commenting that which said that in terms of whether or not interim care order can extend beyond 17 it was suggested there was no provision 40 sees on the child reaching the age of 17. Having said that in the later case of Ri M 2016 jurisdiction water case here, the deleted judgment was hunted down by Mr Justice McFarland. Lord Justice McFarlane, under the court did emphasize very clearly at paragraph for that judgment that there was no jurisdiction and other Children to make in fact care order in relation to a child who had reached the age of 70 or 16 in place of Charred, who was married on this provision, applied equally to an interim care order, just as it did to a final care order pursuit of Section 31 subsection 11 of the Children Act. And therefore, if you had a situation where child was approaching 1700 kept series have not been concluded. And of course, those proceedings would have to do that for terminate soon as a child, therefore turned 17. So that was the position there. The local authority here on this particular case took the view that the interim cable can continue beyond 17. They said there was no express provision the Children are preventing a court for making interim care order before child turned 17. But the other parties argued that interim care what it could not extend beyond the chance 70th birthday. It was arguing that by doing so at a point where four K but could not be made would mean that charge would effectively be subject for non consensual order without the scrutiny, which would be acquired by making a four K border on data felt that this inappropriate what there was then consideration as to whether or not there were any amendments made. This as a result of Section 38 subsection for the Children Act, which were amendments that report about to this act as a result of the Children Families Act in relation to the duration of interim care orders. Previously, some of you will remember that will interim care orders on interim supervision orders. The first order could be made for up to eight weeks and there, after a maximum period of four weeks, such time on because as a result of the Children, families actually was amended to enable interim care orders an entrance. Supervision orders to be made for whatever appeared was necessary as long as it did not extend beyond the duration of the proceedings. He was being argued at that these amendments would also permit one to extending from care would've beyond 17. But at the court, in fact, different view. They said they would be wrong to interpret the amended Section 38 subsection for as having had extended of course jurisdiction without being referred to in the Children Families Act on without, I haven't got be made clear by Parliament. Therefore, the court here did say that no interim cave or draw interim supervision order can in fact do beyond the data which are 17 birth your child who has reached at 16 years of agent who is married now. Sometimes we may well get cost order applications. In short, proceedings on this case of LR on day local authority and others of 2019 is a very important case which really looks at the issue of costs. Orders on what it emphasizes is thes will only be made in exceptional circumstances in care cases. This case was hunted until April this year leading Judgments 100 by Lord Justice Baker. Essentially, this was this case involved foster carers who sought costs, orders against local authority nor sore calf cast. And it's one whereby, uh, position it costs. What is is such that the court specifically referred to prove he was to authorities of E. T. 2012 on the Soviets of 2015 which both emphasized that the court would not normally make costs orders unless the second chances are exceptional. Undead. The court emphasised, particularly really s unreality also that there were no winners and losers and Charki proceedings d only when I should effectively be the child and that when it comes to costs, orders being sort, they should only be made in unusual circumstances, such as does identified by Justice Wilson, who was then, in the case of Sudden in the Burgh council gains Davis this 1994 case whereby one would have to show that the conduct our party has been reprehensible, what a party stance has been beyond the band off. What is reasonable on here on the facts? They had been a number of failures in this case in the local authority. It fell to assess and short of assessment of the foster care was concluded before the particular hearing. The local thought he had stopped the assessment after judge has given indications to conclusion to proceedings and also the guard. He was heavily criticized for having made a recommendation before seemed to find evidence of the local faulty. And the court did say that the conduct off the Guardian and the local authority did fall short of what would be expected in Cape Ceilings. But it didn't come within the definition of being reprehensible on. Therefore, Thea costs order would not be made in the circumstances, although calf casts under local authority would review the case. India circumstances So you can see how it's not easy and certainly very difficult to be able to seek costs, orders in care proceedings for the reasons that are satire that don't brings me on to this case involving FGM dishes. A case off Reem Free Magenta Mutilation Protection 11 award one application on really what this case is looking at is looking up balancing the exercise in deciding whether or not to make FGM order in appropriate cases. So this was a 2019 case handed down by Mrs Justice Knowles. The case itself involved in eight year old on the question was us to whether or not to make a female genital mutilation order without notice. Onda uh, this was one whereby the court had made the order on. Then it was renewed, and the question was, should it continue beyond Charles Minority? And certainly until the charter reached 18 or older? The charm did. Other younger and older brother under the case was one whereby the mother said that she herself had been the victim of female genital mutilation on Also, they had been three generations of her family who had been the victims off FGM. On the local salty received reassurances are repairs that they would not subject a child to FGM, but a local authority to accept those reassurances on the facts and that there were real concerns. They thought that the child may be subjected to the procedure. The family had actually signed up to a working agreement on data from your original dream. She effect that since they were traveling to Kenya to visit relatives do between former local authority as to whether intended to stay. They didn't provide the details and in fact, their plan was that do, in fact, traveling to Egypt a lot of thought he were where that from. Information from the World Health Organization said that FGM in Egypt was prevalent at the rate off 91% and in Kenya it was prevalent at a rate of 27%. On data. Local thought would concerned that her parents had not provided details to the local authorities, correct and proper travel plans, said local thought he did apply for for F G M order. Out of hours on bus was granted on the order was we need on the return date On later, the local faulty argued that it should continue into a child turned eighteens. The question was really whether or not it should continue. So the order was made. It was been you'd like salmon return date and as it happened, have there was a lot of cooperation from apparent, So that local thought decided, in fact, not to seek to continuation of the order on the question them was as to whether or not the court should have. Actually, we need the order that this is the way there was reference to particular home office information. In particular, the court was referred to the dinos vapor 2018 about country policy information. Old about Somalia women fearing gender based violence. Uh and, um, one of the aspects in this was the fact that the guidance refers to fact that FGM is almost universally practiced, that Somalia is a very strong cultural belief that persists and it's practice on bond. It also set out the fact that uncircumcised, unmarried Somalian woman, actually age of 30 nine, would be a real risk of suffering. FGM on risk would be greater in cases with both parents were in favour off f g m. So here, despite the fact the local authority wanting to not pursued your question to the court was had the risks of FGM being reduced on the facts? Onda. Firstly, the child had to be subjected to the procedure sexually dependence had incorporated. Thirdly, the assessment but independent social worker was very positive and emphasized the fact off the impact upon the mother half. Having helping subjects draft um, from the very engage her feelings were fame, much off shame and terror, and humiliation on that remained on guard. It was made very clear that both mother and father opposed to the FTM. So having carried out the balancing exercise on balance, the courts of the view that the child could be protected from FGM Watson care parents on such an order was their fund of facts not necessary nor proportionate in the circumstances. Okay, so you can see it's a very important case, which therefore requires a court bounce up with the order is necessary or not. Now, this other case of a county council on Emma Nannies of a Useful Case, which really looks at looking at special guardianship, foresees chart arrangements, orders and really looking at whether one order should be made at rather than the other at a case itself involved, a two year old local authorities started Cape seems to you to issue issues off a mother subjection child to fictitious illness on exaggerated illness on the child was placed with maternal grandparents. Now this is a case where body were allegations are fabricated and exaggerated illness. Local authorities all finals against mother on uh which would lead to a local Thornton subsequently looking to apply for grandparents to become special guardians. Mother, have a A poster find his relation to the allegations about fictitious illness. She sought return of the child into her care. Now the God is supported a local authority on. But this was a case where, by the medical evidence showed in the 1st 20 months off the chance life to child had been presented to GP and other health care professionals for a number of reasons, most mainly due to Caesar's of no less than 30 occasions, China had been to aiming at various hospitals on about 13 occasions on the course, satisfied that they had Beene clear evidence off if I I, off fictitious illness here on Mother has shown also signs off sanitization disorders. She was seen by a psychiatrist on her behaviors described a sanitization disorder on that the child was not exhibiting any factitious or induced illness, despite Mother insisted that that was the case. Under over two years, there had been numerous nurse and health visitors appointments on that. They work alongside each other on uh, the nursery stuff is to the modern chart of the home. At least 20 occasions between over two years on, they never saw the child actually suffer a Caesar or tremor as what mother had alleged. So the court is satisfied that there were findings that needs to be made. Also very strong findings that were made against mother in relation to the fabricated induced illness. On that, the Guardian felt when the judge was deciding as to which order to make at that the grandparents needed your per hand insofar as exercising parental responsibility and the court decided against rehabilitation instead were therefore going to be allowing the child to be placed with grandparents. But the question was under what All that shouldn't be under special guards, supporters should be under child arrangements specifying Living With Mother was arguing that should be a child arrangements order specifying living with Where was that paragraph 74 off the judgment? You can see. His Lordship made it very clear that given the very strong findings that I would be made against mother, which child would be exposed if rehabilitation care and Mother it would undermine the child's welfare program. Pairs simply shared PR with the mother under a child arrangements older, specifying living with the judge, agreed with the Guardians perspective that grandparents didn't need to have the upper hand to be up to make decisions about the future life without, and you need to consult with or be implements or by will be involved in the making of decisions with the mother. And the only way to do that was therefore to make the most of proper order in the circumstances, too. Cater for the child's wealth. And that was by way off making d special guardianship Porter. So that was what was done. Onda models assault more contact with the court felt that more contact made me the chart mothers needs, but not the child needs on that. A clear message had to be sent about the limited role doctor Mother was going to be played in the chance welfare and they've on that basis, contact would continue at once per month, as opposed to what mother was seeking in terms of seeking more contact. So again, you can see a very important case which looks at the difference between special guardianship on adoption. Insofar as some of these cases are concerned, that Tim brings me onto somebody, Case Lord, I want locations, files the position with secure accommodation onder also deprivation of liberty and therefore want to start with this case of reedy deprivation of restriction of liberty. This was a 2018 case, and really, this taste looks up as to whether or not a local thought it should have been applying for a dollar order, a deprivation of liberty order, Andy Circumstances. It was a case where by child was 14 years of age was subject. Cape Ceilings here in England was subject to an interim care order. The child had complex therapeutic needs on Depends Couldn't meet the chance needs at home. So the child was placed in a residential placement in Scotland on the child had been there for some nine months and was settled there. The place was meeting the child's needs is she was the regime of the Are you attend Scotland? If it was one which was regarded as restricted, a chance liberties us to engage Article five of the European Convention, then the view that has been taken as to whether or not the local thought he should actually be seeking court authority to place a child, thereby over deprivation off liberty Order on local thought, it took to view that it was not a restriction which engaged Article five D independent leaving office that talked of you that the machine did depart the Child of Liberty. Under Article five, parents were neutral on the issue. Andi advocates agreed that it was very finely balanced. Implications were, of course, very significant because if it was, a restriction of liberty and authority would be required, and they put a lot of thought. He would have been expected to make an application at the Court of Session in Scotland. Seeking authorisation they've appropriate on the regime at the unit was such that they were, of course, restrictions such as, for example, the child was given a wake up call each morning and then left her own to dress on wash. She had her own room. There was a lock on the door but war to neighborhood locker room. When she went to school, she helped around mealtimes. She could move around the unit. There was stuff around the staff dinner supervised but what doe to provide surveillance. She was free to watch television in the community areas. She enjoyed attending a boxing clubs, enjoyed shopping and she could go out of the grounds alone. But her visits were monitored by members of staff and she traveled on our to school by bus with the other young Children, and she enjoyed visits from her family. She was given the opportunity to have 1 to 1 time with staff members, and she didn't have her own mobile phone. But she could access the house for me at any time and her searches on the phone, where fact checked in tens of Internet access and there was her search. Such histories were looked at, uh, randomly. So the question was whether or not what she was subjected to came within the definition off what it was like another residential, their beauty placements. The court did say that was a view tips off the local thought that the level of supervision was typical for residential therapeutic placements of his kind Andi. If, on that basis his lordship did say that, although it is finally balanced the court interview that it was not necessary for the court examined whether this came with them, it was not necessary for a court to be satisfied. Doctors a need for an order authorising the restriction Liberty because it did not amount to complete supervision and control on this study was in that case of a child who, in a similar situation would have been subjected to a similar regime in a domestic setting, and therefore the court didn't feel that a deprivation of liberty order was required in the circumstances. Again, you can see the thinking behind his case and why. Therefore, one had to look at this carefully to see whether or not a dollar order was or was not required on the particular facts of the year. The case that then begs me onto another case, which has looked at also secure accommodation and particularly absconding on. This is a case of Ri m a child secure accommodation. This was a 2018 decision. Under this is a case where Look Peter Jackson had done badly in judgment. The Court of Appeal took the opportunity to set out some of the key things insofar as secure accommodation orders are concerned on. One of the key things his Lordship did say, is that a secure accommodation order does, of course, allow the local authority to Cuba charted secure accommodation, but it does not compel them to do so. On an application for secure inning would be made at safely for those looking to place a charted and in a secure unit in England under Section 25 subsection one off the At A Children Act on in Wales, it would be section 119 of the social services and while being Wales active, 2014. And the criteria are identical, which is where one US assure that either to child has a history of absconding on. It's likely to have gone from any other description of accommodation. And if they do abscond there like that, suffer significant harm. Or if the child is kept in any other description of accommodation there like themselves at what a person. So it could be either off these, uh, distinctions, which are then used to demonstrate the need for the order. And with that in mind, the court did then go through specifically what is meant by absconding on. His Lordship did say that one needs to apply the ordinary meaning, so therefore it's got to be something more than trivial disobedience absence. It's gonna be more than that. The court did specifically refer to the previous case of re doubly of 2016 whereby one would need to look at her applying famous the ordinary meaning of absconding indoor circumstances and tears of the maximum periods through which a chalk be made subject to a secure accommodation order. The court did emphasize as a result of the Children secure accommodation regulations of 91. The initial order could be made up to three months and thereafter. There could be further applications that are sort and he's coming made for six months at a time by with maximum pavements on the court or something size that you order should only be made for should not be made for longer than is necessary and unavoidable in the circumstances so should only be made for that period, which is absolutely necessary in the circumstances. Does the welfare test apply to secure accommodation, which this was recognized and looked up particularly in the case of Ri M. This 1995 case, which provides that the welfare test does not apply to secure accommodation order application, but a function of the court reviews to control the excited local thought posed and to really exercise this independent jurisdiction as to what is in the child's best interests and under was issues surrounding proportionality, and this is where the court did say that Wendy criteria are met on the section 25 then nine particular Section 25 Subsection four states left to right here. Satisfied? The court shall make the order. But this particular provision has been subject to judicial debate. I saw that in the case of Ri Kay, for example, 2001 it was felt safety criteria match them. If an order is made, this is compatible to article five. But in the other case of SS secure Accommodation 2014 here, Mr Justice Hayden declined to make a secure accommodation order. Unfortunately, Grand Zemun door to tried here in this section 25 were met and in the case of re t, Sandra McFarland said that the ambit within which it's possible for the quarter exercise discretion is very limited. Eso you know, it is very clear, Uh uh requirements in the section 25. In terms of the proportionality issue, Uh, this is a issue, really, that would need to be considered judicially further at a later date. Onda. Of course, the question therefore was was such that DEA court felt that the important thing was whether or not order should or should not be made in the circumstances. This case itself involved a child who was close to 16. Care in secure accommodation would be made for six months, and a child appealed against you. Order arguing that Delenn Tony order was too great and study should be made for some two or three months at the most. But under facts, the court decided that the trial judge had in fact, for the considered the information and that the decision was correct. Judge was in touch to make the order based on the chance history of absconding on there for the six month order was necessary and appropriate in the circumstances. That's the thinking behind disorders again of a useful one to look at. Sometimes we're beginning with cases whereby they may well be a decision being taken us to whether or not charges to be adopted or been subject to long term fostering under care order. On this case of Ri BP Children, adoption of fostering is a very significant case on that which very much emphasizes high import duties for there to be a proper analysis, particularly when it comes to possible separation off siblings. Assistant Case of Ri BP adoption of fostering this case of September 2018. It was a case which involved five Children there with two older half siblings and three younger siblings. On care Orders are made on all five Children at the core had refused to make placement toward us for the younger three Children, Instead, to court decided that on five Children should remain in foster care through their childhoods at the attitude shown replaced elsewhere and the three younger replaced elsewhere under long term fostering arrangements on UM, the court did say that the younger three Children with such not to foster cares was stating that they would help really look after Children indefinitely on the evidence showed that Children had learning disabilities and short term consequences of fairly neglect, but who had made progress in foster care. And the judge was satisfied that these three younger Children were content in their foster home, and they should continue to foster placements and continue with the benefit of contact with their birth family. But that's what led to the appeal and, in fact, on appeal. It was argued that the trial judge had fell to carry out her throwing off analysis off long term fostering versus adoption. On that, the trial judge said that even if the current foster kids were to change their mind, the charge it still felt that long term fasting was appropriate because of the lack off evidence regarding the prospects of suitable adoptive placements for all the Children on, there was the possibility that the Children may well be separated, but her local thought it did appeal on the local thought. He said that the judge did not assess the effects of the Children of each other, placement options and lost sight of deep needs of the Children individually. And also, the judge did not weigh up the positive advances and dis advance of long term fostering versus adoption and the judge or sovereignty off a stage the value of Children having a continue relationship with their family and instead and in particular with their parents. Onder, in relation to the value of contact appearance was overstated on courted, ignored findings against significant deficient parenting that had taken place. Also, it was argued that the judge had failed to give proper weight to the local authorities, inability to guarantee an adoptive placement for all three Children together was here may well be possible that Dr Placements may be identified, but not together in terms of sibling relationships. It was argued that the trial judge hadn't also looked at the benefits for these Children of adoption, whether together or separately, in terms of commitment security on that this was not therefore properly wait up on the facts. The quarter peal did in fact go with the local thought. They allowed the appeal on the basis that will know that Judge quite rightly looked at all the principles off adoption versus fostering did not really apply those principles to the actual situation of the case and therefore the facts here. This was a case where by the court should have actually considered in more detail the benefits of adoption for the younger Children, whether that was placed them together or separately. So again, you can see their significance of that case, staying with the issue of separation and siblings. There's then the other case off a council against being others decide the case of 2018 on that. This also looks at the issue of separation on also siblings in particular, and it's a case where by it involved two Children, three and four year old. The older child had sustained injuries on the medical evidence was that dangerous murdering, caused, deliberately inflicted Children were subject to police protection later, Kev seems when student on the Children placed in foster care, not a matter had been listed for compass a hearing to determine whether some of the some or all of the injuries were caused other than through an accident and, if possible, to identify those who perpetrate was on also then to do with the shirt wealth interns where the Children should reside. No, the Children did have different fathers. One father had his own, had another child with another partner on the other. Father also had a child with another partner, Onda Life said the teacher wouldn't had separate. Fathers on threshold were determined. The mother was represented by the officials. Lister was also intervene involved, given that one had to determine the cause of the injuries on both the mother and the interview. Knitted not to give evidence on um do a painting assessments done off both fathers and their respective parents and these were positive on depending Assassin carried out. Also, sibling assessment relationship assessment and there were positive parenting assessments undertaken both respective fathers. Now the painting assess and the social wrongly relied upon each fathers right to care for the child, and therefore they recommended separation of the tees off the siblings in these circumstances. And this is where Theus s under Social could rely too heavily under Father's arguments that they had a right to care for their biological child. And that's where the Children were, in fact separated. And it was argued that if they were separated, the relationship could be maintained by increasing contact between the Children. The Guardian took the view that there was a clear, clearly a bond between the Children. But there was no mention that Children of the extent of the impact on the Children, if they were in fact separated on a golf course, fell that the guardian heavens was inconsistent, unlocked, lacked dear logical thought process in terms off the potential reasons why that separation was being endorsed. Now, this was a case where by the court was very critical off the local authority position and also the guardian in particular, why it was found that, um, local thought in the garden should be favoring the Children. We separated on the basis that there was positive assessments off the respective fathers and almost really going down the route of suggesting that her Children had ever actually with their birth family. And one of the issues, therefore in this case, was to determine whether the one charge would in fact, leave with the psychological father or these biological father on, as I said, apparently assess it. A soldier on a guard. He will all of the view that the answer was yes but His lordship to a different view on that under this is where his lordship specifically looked at the position with the right to live with a biological parent and, of course, in particular, reference to the 2016 case of Www, whereby both of social regarding any assessor old fella. Never in the assessment in that they had referred in there accounts to the right of the charter live with abolish prepared order, invited the father to care for the biological child. But, as was made very clear in the case of Www, nor such right or presumption actually exists in English. Lord test is what would be d. Add the appropriate order in the circumstances. To me, the chance best interests on insufficient regard have been to the impact of the Children being separated into circumstances. And too little account was taken of the fact that the sibling relationship was the most enduring relationship that the two Children had in fact and endured in their short lives. So far, they had never stayed apart in separate places before. They're both had experience abusive relationships that both had a close bond with each other. There was settled in the force placements, but there was too little regard to the need to maintain a sibling relationship. And like I said, the court was very critical. Off the assessments that been done on the recommendations on the sibling relationship was the most in doing one that they had enjoyed, You know, young life so far that a close bond on they were both from the same placement, and one of the things the court did say here was that her, with more contact between the Children, diminish the risk of harming separated Children on uh, this was only mere speculation, his lordship said. So in fact, the court did say that what they will decide on the fact sees that the Children would in fact leave when the one father Andi family on dear Children default would not be separated into circumstances. Theme to respective fathers and families were committed to care for the Children. Onda course satisfied? A. It was in the welfare interest to make a child arrangements order in favour of the one father so that boatyard would reside with that father and his family on. Of course, the courted recognized this was going to be a significant blow to the other father, his partner in the wider family but sick but separated itude. Who wouldn't two Children? Best significant impact on both of them Onda. And on that basis, you can see wider court decided to therefore ensured up Children. Two Children work on to be placed together in the circumstances. At this case, Orson. It also needs to be read alongside another case. This was a case of BT and GT Children Twins Adoption Onda Again It really emphasizes the importance off the sibling attachment in those circumstances. And it's a case whereby there were two Children again. The twins two aged eight on. But this is a case where by they had been care placement. Orders made on plans have been approved for These Children replace together for adoption with a time limited search for nine months and if the search was unsuccessful, and to seek a long to a faster placement for the Children but for them to be placed together. So there was really no discussion at all or suggestion that the local authority would be looking to separate these Children into either adoptive or long term foster placements. However, when the Kevin placement orders are made, the Children had in fact been separated under a placed in separate placements for adoption. We're different. Prospective adopters on Thea applications before the court were in fact the applications body adopters to adopt these Children who wanted a Children, obviously to continue to reside with them in their respective care unders. The court was satisfied that there had been a sibling attachment assessment that's been undertaken, but this was done after the decision had been taken to actually separate at the Children. It was done some three months after decision would be made to places twins separately for adoption. The Children had been matched and indeed separated and they had had little contact between each other for some seven months. The Children had not been living with the prospective adopters for some 18 months. So you can imagine it would have been quite significant period of time in that regard on the court felt that they needed really further evidence to look at the possibility of Children being reunited into a single placement, whether it was for adoption along her fostering and what the possible if you're on the impact on Children. If that was done, this was a case where by the court was satisfied that they had been a lot of failings on the part of local authority. Uh, and, uh, it was a case where, by for details, have not been provided to prospective adopters of Children. Circumstances that CPR the child's parents report was not accurate. And that had been a failure to carry out some of the reviews which had to be donning their circumstances. Issue of separation had looked up previously, Ondo in the care proceedings Onda View had been taken on that, and when the court then subsequently did direct there. To be further expert evidence has to possibly to reuniting the Children. The court. The recommendation was that the Children had made very good progress in the second stances onder. If they were to move now, they would suffer significant loss and trauma over to remove. Maduro settled for the first time in their lives. On they would trust faith. Few people, if they were going to be separated now, they were likely to remain vulnerable for some time, and therefore they needed stability even after at the age off 18 on. That's where the judge them had to decide which order to be made to be making making the circumstances so that should be a next year. Water. It should be adoption for these two Children. In the circumstances, the courts did say that the next year order would cease to have effect when the Children attained majority one to turn 18. The cases would have no relationship or connection with them there, after the only people who awarded would of course be their parents. Those were the people who have harmed and abused Children that caused him psychological harm, and the guard he was taken a view that want issues here was that the garden was viewed in light of the recommendations of the further expert was in these Children interest for them to remain your care off the perspective. Doctors on Daddy she was, whether it should be adoption of special garden ship on guarding felt that he only secured when the circumstances would be one of adoption, which would been secured their lives not just do minority, but indeed once aren't they turned to majority? Not a court did say that the issue was that they were twins. And if adoption orders were made in favor of two separate sets of prospective adopters, given that the court was not going to be separating them now, given the trauma they would suffer than the court effectively making adoption orders were going to be severing illegal relationship of Children as brother and sister Andi. Uh, if on that basis this was going to be very significant, court was very concerned about the fact that leaves the failings under part of local authorities, these Children had been denied a chance of being placed together. The court did say they weren't going to be separating them. They would remain in their separate respective adoptive placements on the only realistic option in the circumstances was going to be one off special guardianship or adoption. Onda Court looked at the pros and cons of each of these. They did need stability, and security, even after they turned 18 on day, would remain vulnerable. And therefore, the court found that in the circumstances that the appropriate orders that would be made would be adoption orders. And these were a proportionate response to the needs off these Children's conceits. A very difficult case, this one, given that they should not have been separated, should not have been placed separately. But because they have been for so long now, reuniting it was going to cause them more harm in that regard under question than it was. What order should be made to regulate the placement, whether it's special branch for adoption and given the need for stability uncertainty even after 18 it's felt that adoption was the appropriate order in the circumstances. Not that brings me on to this other case of Recede is 2018 case, and this looks at the position with Children who may be relinquished for adoption, and this is where you'll be aware that sometimes that may Robbie cases were by the mother under father, if he is aware, may consent to a charming, relinquished for adoption. But sometimes you love situations were by the parent may wish to place a child forward for adoption, but the may not wish to for the father. Indeed, as in this case, the paternal family or even the maternal family in some situations things, Case of the Sea of 2018 was one such case whereby the mother off a six month old child, sort to place a child for adoption, and she did not wish for the father or he cited a family not to be identified or informed. Mother was 14. When that she gave birth, she was unaware that she was pregnant until her waters broke. The father was a year older than the mother. The both went to the same school. The mother and the maternal family thought very carefully about whether mother could care for the child, and ultimately, the mother decided that the charge, or to be placed for adoption on the court was satisfied that this is wasn't a case where the water was being put under on any undue stress or pressure on her part by her family and this was a case where by mother was of course, it says she was only 14 Onda capacity was assessed and she was able to engage in proceedings. He was seen by clinical psychologist on. It was a case where by she she was off a very high ability that mother didn't wish for the father and his family to be identified. Told about the baby, Hey had been unaware off this fact. Andi. She said that he would have Asa and we want to her on day three. Evidence also showed that he had been born into mother in the past and he had been subjected to anti social behaviour. Also, Mother feared that the school would find out a swell its neighbors about her position and also she was on anti depressants at the time. Like to pretend a family were not told and of course, that that would mean a child would not be placed with them on what the local thought to do is they carried out their own enquiries. As far as what is could be known about the father on the family on the record showed that the father had, in fact, for not with his own mother. He had we want to have. On occasion, he had lived with his father. The father had abused substance sees and yet poor health on the father was reported to have been carrying a knife. He had been aggressive, he had caused criminal damage previously and he had been suspended from my school. And there have been 15 police child concerned report in relation to him, a placement with on the father to pretend a family was considering here on the facts. Given the information which was my made available, that professionals including The Guardian thought that chances off a positive placement with father or paternal family was very low and the court famous agreed with that based on information that was made available on the court did say Well, if we do not notify the paternal family, then even in those circumstances should be pretended Family be notified for perps of getting information as to life. Story on the court did say that Sufficient was known about the father in the family to neighbor life story and later life let it be done on the court did also asked whether bearing in mind that mother was so young and the father does not put Children parents, as in this case in a different category. But it's felt that done is not the case. It doesn't put him in a different category on the court, in particular referred to a lot of the previous case law, which have been decided enough mentioned those cases for years previous cases such as J. L. A Nao the Re a Case T. J. So you can see the world. Previous cases relating to relinquish baby cases, UH, which had been decided previously on the court on the facts, decided that the combination of factors about what was known about the father and paternal finding family made it appropriate for the father not to be notified off the birth here. This was a fact that where died after father was told, it was a strong probability that it would spread around a community and therefore cause more harm on potentially social isolation. For the mother, Mother was psychologically vulnerable. She was struggling. There was a risk of self harm on Mother's fears off what the father made you in Harmer, where genuine it's on that basis. The father in the paternal family? We're not told. So you can again see how significant this case, even how it brings into play. Issue off Article six and eight in particular the European Convention. Now that them brings me onto somebody, she's running, contested and options on. Also applications for lead toe opposed to making off an adoption order. This brings into play this case of Ri Ages 2019 quarter appeal decision, which was handed down but nor Justice Morland on 1/7 off March 2019. The Children here were aged four and six on the father applied for lead to oppose the making off the adoption order on the tragedy. I've decided that for the purpose of Section 47 subsection five of the adoption showed in 2002 there had been no change in circumstances since the placement orders made under the other ground of appeal that the father ran. Was that a charger just wrong in thinking that if they had been a change in circumstances than the welfare of a child was not paramount consideration when you're looking at the second test? But of course, as you'll be aware, Section 47 5 does state the welfare of a child is, of course, paramount consideration. So really disappear raised a number of issues. Firstly, was a judge wrong to decide that they had been no changes circumstances sufficient? Granting leave on whether, despite station that the welfare was not paramount, act for the second name under Section 47 5 I was a judge wrong in that. And did he have really? Would that really have any impact on the application on def had to be looked at. This was an application where adoption applications had been lodged. Mother had applied for leave, proposed to make them to your applications initially, but the court had refused mothers application in the first instance on. This is a case where by there had been psychological assessment on a mother and they had been a recommendation for mother to under go therapy off between 12 to 18 months. And the mother have a sort mussing wrong in a parenting, and therefore it's unlikely that she was going to be undertaken the recommendations and therefore it would be changing her Stan, apparently so, insofar as mother was concerned, the court was not satisfied that there has been a change in circumstances as far as mother was concerned. My mother also claimed that there was another changes, second chances in that she said that the maternal grand mother had come forward and sought to be assessed. But the question day was at a tragic not God is to be a change because that maternal grandmother had also previously being assessed as a potential care do the Cape ceilings. On that she had said that she would not wish to put herself forward in the Cape ceilings they don't to be looking at. So there was no solid grands really. Asked why there was a change in second stances insofar as Mother Mother's Position is concerned at, the court did say that when it comes to changing circumstances in light of cases, the leading authorities off a M B and rather than council on the LG case of 2016 the type of cases will leave to oppose. Husband given is where the father, as in the A M B case, had been unaware Dr Option application had been lodged altogether. He was unaware that he was the father or I went yet that person has not been given information or where Azzan the latter case of grandparents on a way of the proceedings until the Children place, partially because they had been given false information by the local authority. So in those cases, leave to oppose had been granted. But here the paternal grandparents came forward who were being put forward, Uh, on it was been argued that they had been changing circumstances what was being suggested. But in fact, the court did say that the grandfather said that he had been aware of care proceedings on the reasons for the Children being removed on day. It was only one that caring placement orders were made, that he understood the severity of the situation. Therefore, he put himself forward. Under there from that pace is the court and have field up the first part. The test was meant as to fact that the judge had wrong refer to the second part of tests. Are you referring to the fact that the welfare of a child is not permanently is a natural fact? In the Section 47 subsection five? It is. The court did say that Judge, uh, did nonetheless do a thorough judgment. He's looking at the matter widely and looking at the fact that these per has proceedings have been on in place for some time, Children needed finality and certainty in there for the course. Satisfied that affected the welfare of Children have been taken. Canton was in. The judge's minor was regarded as being paramount. So they, from the fact on the facts the court would make the adoption orders without their for allowing at the assessment of Deep Grandfather. In the circumstances, this wasn't a case where the grandfather had not been aware off. The second Stone sees on a grandfather had been aware of circumstances and he could have put himself forward as a care for Children previously on down there. From that basis, it wasn't done. This is different to the previous cases with a grandfather had not been aware of all at all, or where they had been misled, which clini was not the case on the facts off this case. One other case that I wanted to mention for today's purposes is this case off post adoption contact and went to order this. This was a case of re be a child, 2019. It was quarter pure decision leaving judgments handed down by Sir Andrew Violin, the president of Family Division. On this really looks at the issue of post adoption contact. It is the first case, really, which is made his way to a court of appeal. Falling Do bringing in off the Adoption Children Act of 2002 back in 2000 and five at the case itself, involved a two year old Depends had learning disabilities on there had been assessed. They had a residential assessment for 12 weeks, which was not positive on the local authorities sought care placement orders. Now Dave orders were made under local thought. He had not offer direct contact post adoption on indirect. So that's where the parents sort leaved to apply for a post adoption section. 51 a order on the basis that was sick. They were seeking contact to be directly for open adoption as opposed to indirect. So that lodged an application that parents neither consenting North, sought leave to oppose the making of the adoption order. But instead there was seeking in order for post adoption contact and therefore applied for leave under Section 51 a subsection four off the act now. This is where the court had looked at issue on adoption before the coming into effect of the Adoption Children Act. In particular, there was the case of Ri are, which was decided a short while before the 2000 to Act had comment on, also used the Oxfordshire County Council case of 2010 which said that imposing orders for open adoption prospective adopters was unusual. And this is a case where by the parents were arguing that the child's young age indication that direct contact with neither disturb nor disruptive placement, I would simply become part of the child's ordinary routine. And this wasn't a case where the parents were going to be disrupting the placement in any way. And as for the prospective adopters, however, they took to view that they would agree to indirect contact on face to face meetings with a pairs once yearly. But they would not be prepared to facilitating direct open adoption at this stage now. This is where the mother's legal team referred specifically to the growing research into adoption and contact, and it was particularly the reference made to the child judge being referred to the social right research would emphasized importance of contact after adoption. That's to be search called the role of the soldier twin adoption, ethics and human rights on inquiry. This was body, but association of Social 2018. So those reference made specifically to that on, uh, the psychologist to assess mother states that mother have difficulties in processing information, there was a high risk off something inappropriate being said doing contact if it was opened or circumstance. And therefore it may be that there was a potential risk there and give you the guard. He was that it was best to build up contact slowly, rather in the way in which it was being proposed here. Now perspective. Doctors had engaged with professionals. They said that now is not the time to allow direct contact on uh, the parents argument essentially was one whereby they were arguing that the intention of the new section 51 a off the adoption short. That was to bring in a new approach today for allow allowing direct contact in these circumstances. And if there was no such intention, what was the point really, of being an intersection 51 a orders there arguing that point and there was argued that the court had not given sufficient regard and waged a possibility of direct contact. Post adoption? Uh, so they were vamos, suggesting that on the local authority argument, the court shouldn't be putting any additional glass on the 2002 active. There was a need to change the losses to really require post adoption contact to be open. Then they would have been made clear by Parliament. In the circumstances the parents, of course, needed leave to apply for the order was previously, they could apply for Section eight adoption hearing without requiring leave. So what was the decision? Will ultimately to court did say that there was nothing in the act to suggest that the orders were designed to bring in open adoption. If anything, it was to enhance the positives of adoption, not to actually reduce it. And they found that basis the court did not feel that they would be ordering upon at the adopters in the local authority the open adoption which was being sort at this stage. The guidance was such that it was more about really emphasizing in hands positives of adoption as opposed to otherwise so therefore it is launch. It made it very clear that the law remained that it would be extremely unusual case that court make an order stipulating contact arrangements to which the adopters would my degree and left. On that basis, the court did not permit the open adoption, which was been sort now just for the last part of today session. I just wanted to bring to your attention the fact that they are have been a number of consultations recently which have recently ended. There was the intra report reports made available under Field of July 2019 in relation to possible reform off the private law program. That's the cap chart of ancients problem practice diction 12 b and also appear low packed. Restriction 12 A. Both of these consultations have ended a the end of September 2019 on in relation to the capital Child of Angels program. The idea is to make more effective use of my arms and also allocating private cases tracks so that, for example, wonder is a specific issue application that maybe will be allocated to after fast track of equivalent in this consultation. And also the court wants to ensure that when it does come to enforcement of private orders that pulls it out with swiftly on strategically saw that delays kept an absolute minimum. There's gon do is to be more effective use of my arms and also more moved towards digitalization. And so far as the public law at nine practice, Direction 12 a is concerned. The aim is very much to ensure that is more great and effective use of pre proceedings so as to ensure that cases can be appropriately planned before and after they are in proceedings and to ensure more effective use off family group conferences and more identification of family members at the earliest opportunity, so as to ensure that delays kept to an absolute minimum. In these cases now linked with that, it is also a number of practice directions. Also, which are underweight, is, for example, practice direction 36 g, which relates to a pilot in relation to Section eight applications be done online, so it's allowed this to be operated by hatred CTS. This also practiced rations. 36 Dave is that he's exchange, which is about transparency. Intensive hearings in private on this is to enable legal bloggers and therefore lawyers who are credited to attend hearings for the purpose of really reporting hearings that have taken place. And this isn't an extended to search for June 2020 so as to allow legal bloggers to enable them to report for Pepsi's often of a journalistic, he said. Purposes with, of course, to provide. Those are making sure that they are still complying with the limitations in particular Section 97 to the administrative just effect. There's also packed instruction 36 k in relation to procedure for the book scanning of Certain private law Applications, also, which has been a pilot set up since October 2018. And finally this pact, Instruction 30 B, which is the pilot, which came in on the first of October. Eso is to consider the issue of whether an appeal hearing should be heard in public and if so, what? The potential risk of homage to a child or some other person Public access is available, and finally, there's practice stretching 36 old about setting up a pilot to allow the book scanning off certain documents, which are required to be far so again, Lincoln descend with more movement towards a digitalization so it can succeed today have covered a number of issues with the on both private, handsome elements of private Children, law as well as public. The next session I'll be looking more to some aspects of private Children in particular with a view to give you hopefully very useful. Updating is far somebody significant development in this field, particularly due 2019. And I thank you very much indeed for listing the hope. This has been a useful session for you. I'll speak to you soon. Thank you. Bye for now.
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