Hello. Welcome, everybody. My name's after my mood on my solicitor Onda, lecturer in Family law on Don't be pleased to welcome you to the session through data law. This is the Children Law and practice the update for 2020 destinies. Session three. So you know that this course consists of three sessions, each one off approximately an hour's length, whereby I'm taking through somebody. Key developments both case law one statutory in all aspects of Children law throughout. 2019 on also the early part off 2020 Onda, one of looking at is taking through some of the key developments both in private and public law proceedings, particularly as it relates to matters relating to enforcement of contact transfer off residents. You're looking at issues off parentage enforcement on also certain aspects of public child care, such as those related to finding of fact hearings. Today we'll be looking at separation in particular on also issues over special guardianship and also placement off Children overseas as well as secure accommodation today that I'm going to be looking specifically at somebody issues surrounding redouble interviews, for example, in terms of whose responsibilities to set up the re doubly interview. When it comes to Children proceedings, we'll be looking at a recent case falling on from three PS to see how that cases that embedded itself into somebody ways in which we run child care cases at present. Onda will then also be looking at somebody matters at So any removal of Children under interim care orders in particular, and also the position with adoption on placement, as always, have put various piece of stuff story legislation and also case law within this material on the acknowledgement of crank operated, the Dfe as corporate author is set out here. So if I can then start with the position with re WN enquiries now readable enquiries, what I mean by that is many of you will be familiar with the big Supreme Court decision of re W. Back in March 2010 were by the Supreme Court took the opportunity of that stage to make it clear that there is no presumption against their child giving evidence against the alleged perpetrator in Children proceedings on the basis that my do so it may cause them harm. It may prejudice. Stomach may cause them to become oppressed. Andi. It could potentially of course, cause further emotional harm. Daddy's a woody, of course, and that is a concern. But that doesn't in itself raise a presumption against the charge giving evidence because of course, we have to balance that against the right of the alleged perpetrator, to be up, to test the evidence, to be able to have they say on their right to challenge the allegations are made against them and therefore what we what we w has provided for is for the need to ensure that there is inadequate balloting exercise carried out by by under one hand, looking to see whether in the first, on first instance, it's necessary to actually call a child to give evidence doesn't go towards the root issue. Is it necessary does Is there any other corroborative evidence that's available? Is any other way off having to avoid a child from having to be called to give evidence? So we need to really deal with that issue first, and if it is necessary, then we're looking at what safeguards we need to be putting in place accordingly, and this is where the the special measures come into place so as to then give consideration as to how to child gives evidence, whether it's in court, whether it's the video link, whether it's fixed questions off. Otherwise, for example, but what this more recent case has looked at this case of a county council against calf cast, this 2019 case is whose responsibility is it to undertake to redouble enquiries off a non subject child? On this was a case handed down by Don about Mr Justice Key and sitting on a banana judgment on the 20th of September 2019. Not a case itself involved one where pie there were kept seen in relation to a child who was aged a year and 1/2. Andre Young person had alleged that the father of this one year old had sexual abused a young person on the local thought. He sought to therefore corn a young person to give evidence so that young person was not the child. He was the subject of these proceedings on the question was, can this child be called and who should be doing the readable interview with that child to gauge with the must Who their view about 10 in court to give evidence than discussing with them to push for the possibility of special measures, so this year always has to who should actually be in rotating the enquiries and work with this young person. Therefore, to assist the court in determining whether this non subject child should actually be directly involved in these proceedings and then like so therefore to undertake the readability assessment of a child to assist the court tooth and decide as to how to follow through the position with this allegation on 1/4 in fact, directed that Cath CASS would do www for you off the non subject child. So the core directed calf cast want to take this world. But Cathcart subjected on the basis that they said that the direction was made in respect of a non subject nonparty child and therefore fell out to stud outside of statue functions off calf cast on a court there for discharge of direction made in respect of Catholic awesome, instead directed that the piece of work should actually be undertaken by independent social attracted joint expects expensive order party. So therefore, that was how he was deputed. But, according referred the matter to Mr Justice, get to decide whether it's appropriate to do so on this basis and whether it was within the remit of the court to request Cath cast to resist the court on attack. This assessment, including the redouble your assessment relational child who is not the subject child off the proceedings, not a legal local authorities for you is this. They said, that the court does not have the power to make the direction given in this case in respect of a non subject nonparty child in the cath cast would not be acting beyond its dust re functions on UH, therefore that that was the view of the local thought. Today said that it is a function of calf Castaic advice to any court about any application made to it and family proceedings, and must provide whatever assistance it feels is needed in the second stances. And also there was reference to the previous case of heart against calf casts. A 2003 case which decided that Section 12 of the 2000 act does not impose on calf casts a specific huge to individual Children to allocate a specific guardian, nor did it set out a timetable. This is very much within the discretion off calf cast. So that was the view of the local authority. What about calf class where they talked of you that in the in section 12 subsection one it specifically provides that refers to in respect of family proceedings in which the world filled a child is or may being questioned. And this therefore calf cast for stating comes within the remit off only subject Children who are the subject off. Therefore the proceedings and therefore calf cast talked of youth that Section 12 of the act does not impose on calf casts a specific duty to individual Children to allocate a guardian. Nor does it set out a timetable within which this needs to be done. That is very much within the remit of cuff cast themselves. So which way did the court to go with this When his lordship said that he do in fact agree with a submission by made on behalf of Kafka's that the opening words of Section 12 subsection one do specifically provide for the fact that it states in respect of family proceedings in which the welfare of the Children is or may be in question and that should be interpreted to mean the role of Cath CASS is limited to the subject child, or chart off those specific proceedings on his lordship. Don't reinforce that, but the fact that when you're looking out pointing guardians in public Children or proceedings on the par for the Children activated. Nine. Andi Therefore, you're looking at specified proceedings than sexual. 41. Subsection 10 specifically states that you're appointed a guardian to give assistance to the court in relation to that particular case in that particular child. On the appointment off a Children's garden in public law proceedings is limited to a child who is the subject of proceedings. And here is a party person to room 16.3 of the fpr on. A similar provision applies in private law whereby they may be your point regarding through 16.4. And, of course, the family procedures specifically makes provision for Charter is not subject or proceedings, but it's a party to proceedings to the point of litigation, friend. So with all that in mind, his Lordship detective you that guardian appointed to represent child in public or private law proceedings may be required to advise the court on the subject child's relationship with a non subject child on impact on that, depending upon the orders made but a course for the future. And the Guardian may be required to inquire into and advise the court about Ranger matters, which coding which could include, for example, giving an opinion on the benefits of disadvantages of a non subject Scharping called to give evidence. But this is quite different to 1/4 actually appointing an office of calf cast, whether garden otherwise to work with On Advised upon a non subject and non party charming day second stance and therefore putting it simply, the court decided that it had no power to look like after a point enough off office of Kafka's to undertake that piece of work that was being sort okay. So you can see it's very important case this one day, due to therefore really goes down into the root of what can and cannot be directed by the court in these circumstances, and therefore, the court concluded that they had no power to require calf Castro point in office of CAF cars in these circumstances to undertake that piece of work that then brings me on to this Ah, significant case, which was handed down in July last year. This is the case off Cumbria CC against our This is a 2019 decision and done by Mr Justice McDonald on the 17th of July 2019. Sitting in the High Court of Justice Family division on this case really revisits three ps on looks, particularly at the position with SG orders a special God supporters. Now, just by by way of recap. You know, that creepy s was that very significant case that was handed down back in 2018 on it looks at the position with what should be happening when it comes to making off special guards supporters in situations where the child was the subject child has not been placed or has not been placed for long enough. Would be perspective, special guardian. What should be happening in that situation? Is there need for them to replace this? Their legal requirement, and if not, why not? And if there is, where's the requirement for lead and then what happens with the proceedings? Can they be discharged at that stage upon the making of, say, care order? Or should we be looking at maybe extending the proceedings So it really does look, some of the key questions that re PS looked at in this case off Cumbria ccn are takes that further So just putting the fact on this case together, What happened here was this There were care proceedings which were commenced in, relating relating to a one year old child on the child was subject to an interim care order in favour off the local authority. The local thought he sought for the child to live with deep paternal grandparents under the auspices of a special gun supporter on the mother, so awful child to be returning to her care. And if not, she didn't agreed with the local authority plan for a child to reside with the paternal grandparents under the auspice, ease off a special guard supporter. This matter of the case itself was one we're about a matter to be listed for finding of fact. Hearings of finals had been made that the child had suffered subdural hemorrhaging and bilateral vaginal damaging caused by the parents on the court been satisfied that the child had suffered shaking type injuries and these were inflicted immediately before the 999 core were caused either by the mother or the father of the child, either recklessly or intentionally. Mother sought permission to reduce further evidence on that she had relied upon since the findings were made, whereby she argued that new information was such that this would suggest that in fact it was the father who was the perpetrator of injuries and not the mother Andi. Therefore, she sought for this further information to be adduced on. As I said, a local authority sought for the child to reside with the grandparents, somebody or species of her super special gun supporter. But a mother saw for the child to be returning to her care and if not only them, which he preached. A plan of the placement of the child. Long time with the paternal great grump, paternal grandparents. Somebody. Ah, special guards reporter. Now, this is where the Guardian agreed at the charge, replaced permanently with Deep Inter grandparent's. But given the complexities of the case and the fact in particular that the placement had been untested, the Guardian said that the placement should initially take place under the auspices of four care order. So this is very much the argument that the guard he was running, which was along the lines of what was the practice Certainly before re PS came into effect, which is the case should be concluded on the basis of a care order in favour the local authority. But for the child to be placed with the pater grandparent's to enable appeared of assessment on day after one is then looking at the possibility off. They're looking at discharge of the care order, super substitution that with a special guard supporter, well looking, therefore utter some of these issues. But firstly, what's the position with the findings? Because, of course, findings have been made here against mother and father. But Mother wanted those findings to be reopened on the basis that she claimed that the new evidence suggested that the fact injuries were caused not by her but indeed body father on This is where the court specifically referred to the case off re be on hate. This 2003 case, which states that the quarter peal, said that where subsequent evidence does cast doubt on findings made at a split here angle, finding a factoring in the court can reconsider those findings in light of new evidence of the welfare stage, and therefore it is possible to do just that on. But His lordship did say that in considering the new camp provided by the mother to task for the court was not to really have a full reopening off a factual issues, but want to consider whether this new information justified visiting those findings of Indian soldier was the burden on the person who seeks to displace them. Those previous findings in this case, the mother to show that but legal burden of proof still remains upon. The local authority on the court was conscious that in this case of being aged, a court appeal did highlight get vanities of the reconsideration of findings undertaken by the same judge who heard the matter on May defying. And, as you know, there was another case of August 2019 the case of Ri e visiting revisiting findings well by again. In that case, the quarter pill was taken a view that when it comes to reopening findings then rather appealing, one should really be looking to refer to a new piece of evidence to the same trial judge. You heard the original fact finding so that he or she can And consider that to see whether, in light of that, the original findings should actually be reopened. And not so this case famous reemphasizes that point in that regard No relation to the welfare decision. The court did say that we're here. You cut competing orders advance before called. On the one hand, you've got three the local authorities suggesting SG order and supervision order on that The matter should be concluded on that basis. And then, on the other hand, you've got the Guardian suggesting a final care order at this juncture with a view today in a blink a case to be concluded on that basis for now but to test the placement then because of that, it was important than his Lordship said to knock the case a re PS to see how to therefore deal with matters. With this in mind, every PS has no therefore emphasize number of things and therefore, what His Lordship did in this case is to set out some of the salient points that were coming out of three PS. So some of the key things were these. Firstly, if the court does need more time to ensure that the relationship of the grand plans for the child on the facts of this case on appearance was such that it was in the interests of the child to make in a special gun supporter than that could, if reasoned, have been appropriate. Basa published a gender proceedings So Re PS made it very clear, of course, that it is not necessary for a child to be placed with the perspective. Special guardians before Special Guard supporters made both TSG regs of 2005 and subsequently amended in England in 2015 and also in Wales in 2018 do not require the child to replace with a prospective special guardian before any S t order is made. But if the court feels on the facts and given the complexities of the matter, it is felt that it is necessary to test the placement. Then, of course that can be done. But then there is the question of how in the interim is the child placement maintained what type of interim order is granted on what basis are you looking to the agenda proceeding? So those are key questions, which, according me to ask themselves in such a situation. Secondly, as you know, re PS emphasized the fact that the concept of a short term care order is flawed in repeats itself. You remember it was being suggested that they proceedings should be concluded on the basis off a care order being made. But have you two been enabling the paid of placement with the perspective, special garnish to be tested and other local authority or some of the party going for discharge? A care order on a substitute that with the special branch reporter, but as Lord Justice right and made it very clear and re PS that if it's effectively seeking a short term care order to stand for which simply such waters do not exist on and it is a flawed idea and certainly should not be used in those circumstances. The other point was, there was no mechanism for cable to be discharging, happening of a fixed event or otherwise to be limited in time in that regard, so the exercise print responsibility by local authority could not be curtailed once a four K orders made other than public law principles off reasonable sin and irrationality. So otherwise, by doing so, you actually importing back into this area, a concept which some of you may remember was brought in and then disbanded some years ago, called the idea Off Start Care plans here. If local authorities and thrusted would print responsibility upon the your CIS auspices of a K order, they should be allowed to then look after the case on the basis off such an order be made on that they shouldn't be cutout in the exercise of their parental responsibility. In that regard and also at three p. S also said that in respect to a special gunship order placements that are yet untested, the court had made it clear that directly tree scheme under Regulation 21 to shut your tts you eggs of 2005 which were amended in England in 2015 and in Wales in 2018 prescribed yelling one study to be assessed, which includes looking at the applicants current and past relationship with a child so that needs to be done. But despite government consultation, despite despite beat, these regulations been updated, there was nothing on. There isn't anything in the regulations that requires for appeared off placement of a child would to Presuppose special Guardian does something that was not taken up by the government, and therefore it is neither a statutory nor regulatory requirement in that regard. So here on the facts, the court did say that having considered the evidence Andi the welfare position, the court had been satisfied at the best interests. What shots that the child should in fact replace with a return grandparent's. But the difficulty was almost what basis should it be by way of STD order at this stage, or do we adjourn and under facts? The court bearing in mind the case of Ri PS was out of you that initially should be under the auspices off a further interim care order. And that's what the court decided to do on the facts of this case. Now the court has determined that the mother could not safely meet the child's needs. Onda they from that basis, the court had decided at the chance best interest in terms of applying to re BS analysis and all realistic options was such a child would be best placed on the best needs would be met by resigning with the grandparents. But a question, therefore, was on what basis on what order should be made now or told her grandparents were able to meet Charles Welfare needs. This was not the end of the matter, because there was a lot of complexities involved here. The child had not yet been placed with them. One had to assess to see to what extent would be able to meet the chance developing needs, particularly when one looks at the complexity of the family dynamics, for example, and also the ability to be able to manage the level of risk in that regard. The placement in itself was clearly untested on a child would be moving to care, to return grandparents after two years in foster care and would require a great deal of support to make sense off the family life that to be carefully managed, one had to look careful management in relation to contact. Andi also had informed a child of the child his child's life history on life story and the grandparents would require platform off support to enable them to be up to help the child through through that transition period. And this is where the garden was suggesting that the case should not be concluded on the basis of STD Orderly, it's dead. There should be a care order to enable that that period off testing and also to the neighbor that work to be done at the garden was also the view that the SG support plant contained no clear information about the extent to which de grandparents would be supported with respect to managing thes complex issues relating to the child. But despite that he was not. A guardian was suggesting at these ideas that the court still were troubled with the fact off concluding the matter on the basis of care orders The Guardian was out of you. That care order would have advanced is it would provide a robust level of support for the grand parents whilst a child settle into their placement. It wouldn't in able to grand pairs to remain assed foster carers for a period of time, enabling him to continue to have the support from the local authority. They would be the reviews after 10 days, after 28 days, every three months, six months into placement, it would be the IRO. Involvement on a care order would also give the grandparents the opportunity to engage in training provided by the foster of service. So there are a lot of advantages. But on the facts the court is satisfied that the care order should not be made for the reasons set out every P s. A short term care order is a flawed argument on Defoe could not run. Could the court make a nest You order at this stage and the court on balance decided it could not. It was somewhat premature to make SG or directed stage. Given the complex work that still needed to be done, particularly in the circumstances, they need to be a more clearer set how to transition stage, which needed careful consideration on, uh, in particular assistance. And therefore, with that in mind, what the court dead is the court dealing, in fact, conclude on the basis of making a further interim care order on the court, invited a local fortified unamended interim care plan, addressing specifically the expect aspects of guidance and support and training which had been identified, in which a local thought would be asked to provide in due course. So that was the thinking behind that and why the orders therefore made on the basis. Okay, so conceits of a useful case and therefore which really brings into play the issue surrounding three PS and its application. In cases of this kind, this them brings me on to this case off re w a child. It's a 2019 decisions and it done by Lady Justice King on the 18th of November 2019. Andi, this is one which looks at issue of revocation off a placement order and in particular, what the position is there on its A case whereby it involved an application by the great harmed in relation to to care and placement orders that had been made in relation to 80 year old child. Andi. You had been argued by the Great Heart that the trial judge had failed to give adequately reason judgement in relation to y. These two orders were made in the circumstances. Firstly, there's a failure sufficiently to analyze the factors set out in the world for a checklist, it was suggested, starts the first suspect on. Secondly, it was argued that d love her checklist in both the Children activated line and also the Adoption and Children Act of 2002 were not fully explored and considered in the circumstances. That's one of the things that was identified. Onda raised in this case. On the other aspect was there was a failure to conduct inadequate ballistic balancing exercise by looking at, really or the options for against. And, as you know, these are. So what a crucial aspects which need to be considered when one is applying the re BS analysis. So just by where background and what was this case about? In terms of why care and placement orders were made from the outset? Well, this is one where the mother did accept that. In fact, she was not in a position to care for a child, and she identified The great Harmed has a potential long term care for the child. The quarter directed at the instruction of independent social worker to carry a panic assessment by the modern, the great aunt jointed care or, alternatively, for a great onto to careful child in her own capacity as a sole carer. On the only realistic option. Once that assessment was done, was placement with the great harmed on dirt deep. It was a finely balanced suggestion, and the independent Socialist report ultimately did not recommend placement with a great heart. Either one issues was that beyond had failed to disclose to the necessity abuse off her own daughter as a child on. There were issues about her honesty on being open and honest with professionals, or a local authority went to their permanency route by way of seeking to seek approval to the agency decision making to pursue plan for adoption. And they sought permanency through adoption. The Guardian. Sort of Denham is independent social worker, a report which was directed. And, um, the independent Social Record, in fact, said that the previous practical issues could not be regarded Barry's anymore. On that, the Great Heart was now able to demonstrate good enough parenting. So the recommendation of further assessment in relation to the armed uh, however, what then happened is that the local authority nine in fact did support the recommendation of the Independent Socialist Report on for a Child to be place with the Land a pursuit to NST Order and Supervision order, and therefore they sought permission to withdraw its placement application. Falling further work was done, but a local thought it and change their position again. It appeared for the reason for this. That was that The Iro not declined to ratify the care plan to place a child with a great aunt on. Uh, this is where their local thought of them pursued once again their plan for adoption. So you can see that it was quite a history behind how deep local thought his position kept changing here. And one of things here, which was therefore looked at, is that the local thought your gold they changed their position, therefore on the iro on the base of the IRA also declined to ratify the care plan or the placement would be aren't the question then? Of course, that comes into play is when one applies the welfare check list. That was it applied appropriately. So Her Ladyship said the UN appeal in relation to great haunt at she was argued that the welfare check listen to both the adoption and Children at 2002 and Children Act 89. Check, please. We're not fully explored on that. There was only a brief reference to the wife A checklist in the judgment and the aunt was arguing that this was inadequate on that This is where the course specifically referred to the case of Reem whereby in relation to inadequate reasons that couldn't it soft and require the case didn't be remitted. Ladyship's had set out that this case was unusual in that the proposed placement for the child would have meant that whilst a great heart would have been the primary carer, the mother actually would continue to live in the same house. Adopted adoption have would result in a child not living in the same house but not losing the attachment with a great heart, but also not only losing their for the attachment. A great hunter, but also with the mother on the court did say that there was some positive attributes. He It was argued on appeal that there was the failure on apartment trial judge to take into account the whole picture on all sort of positive attributes on a part off The aren't and it was argued that the tragedy foul to give adequate reasons as to why Dion was not fully explored in the circumstances. As for the risk factors, what was being identified here is that there was reference to case of Rieff Tissa, 2018 decision in that close attention needs to be paid to the actual risk. And as this case Rieff highlights, is just because I say apparent lies to local authority. For example, Rieff, for example, Mother had lied about the extent of her drinking on the association with the father. That in itself does not mean that one done immediately has to turn to the more draconian step of personal adoption. You have to look at what the impact off her lying has towards the welfare off the child, and that's really one of the things that the aunt was arguing here. She said that although there were observations but Liza, lack of insight and these went towards threshold that can also equally be applied towards the world fair valuation. And the court did say that the trial judge's evaluation of the risk was somewhat superficial. Uh, the quarter peal don't minimize the risks and the concerns that were raised by the independent social worker. But here the trial judge had found to justify the conclusion that degrade Hans was unable to be up to meet the child's needs. Long term on also had foul, too, really fully understand what a great heart had failed him formally assessor about the fact that her own daughter had been sexually abused. So yes, she had lied. But then you had to look at. Why was that? And what impact would that have done have on her ability to be able to look after a child that she was putting yourself forward? Four. So I could see this famous has, ah, a stock similar to the case of Rieff were again. In that case, the mother had lied about the extent of it drinking. You have to look at the impact that has on her ability to be able to look after a child long term. So in fact, with both those matters in mind, the court did say that the great hunt had made good. Her argument of the judge had in fact failed. Two given adequate reasoned judgment on it wasn't possible. Therefore, for the reasons that the tragedy just set out in a judgment for the court to be satisfied that the placement order would put a proportionate order in the circumstances There for both the came and placement orders were both set aside on the child would then be placed back in the candle, local thought to proceed to section 20 paying the matter than being reheard. So again, you can see how significant this cases and in practice, but then have going forward with other matters off this kind again. Very, very important. I don't want to discuss with you this other case off late last year, which is a very important case which looks at the issue off removal on, uh, somewhere. Look at this case on it really addresses the issue about interim separation in particular. So this is the case of Re see a child in Trump separation to this 2019 quarter appeal decision had it done by the court of appeal. Uh, and, uh, it was handed down by Lord Justice Peter Jackson 100 gave the leading judgment, and the issue was whether or not the granting covering from cabled was the appropriate order in the circumstances. Given the facts of the case, it was a case where, by a grand building from care order for the separation of a child aged four months from the young mother was justified in Not in the second stances on, um, there was some key aspects that were being raised about interim care orders. In this case, not a child had been in the K off his mother since birth. Local authority applied for interim care order and removed foster care on a date that of the child's birth and fresh or were not an issue on the facts of this case. Now there was the first contested hearing, and at that hearing the chart was in fact May subject to an interim care order. But place with mother with the maternal grandmother. Now some key aspects of interim care orders were considered by the court here. I'm firstly on. If you look at paragraph two of the judgment, one of the key things that a judge did highlight is this interim care order made via Section 38 off the Children Act. Does the short has no need to be met. Pursuant to Section 38 subsection two, some aspects were firstly, that's Centrum cable that is made to stage where the evidence is incomplete but should only be made to regulate those matters which cannot await determination that defined ahead. Onda on interim care order shouldn't give any party an advantage or disadvantage. So the fact that the local authority and the benefits of an intruder interim care order made shouldn't give them an advantage in similarly not making interim care. Water shouldn't give the other party descend on advantage of disadvantage in that regard. Secondly, the court said that the removal of a child from apparent his and interferes with their right to privacy and family life and articulate onto removal at an interim stage is, of course, a Schardt into sharp interference in that regard. And therefore it also has an impact on the formation and development off the parent child bond in the relationship in all cases for separation. Therefore, it should only be done where it's both necessary on proportionate in the circumstances and the fact that for an interim care order, one is relying upon the lower reason with Grand's. A threshold for an interim order is not in itself in interpretation. To make an order that does not satisfied it always exist exact criteria. So, therefore, does not a reason not to make your or to make the order in the circumstances. Also, one of the other things that was raised by the quarter appeal here is this. A plan for immediate separation is only to be sanctioned by a court with a child safety or psychological or emotional welfare demands it on. Whether lengthen likely consequences of separation are a proportionate to risks which eyes effected, not occur. So as you know from previous case law authorities as the case off redoubling. For example, in 2014 there was the previous case off related 2009 case, for example, which looks at the test for removal into child safety demands. Immediate separation on one of the key things that's come out of those cases is the fact that the more senior courts of emphasize that immediate separation can be sanctioned and should only be sanctioned when there is sufficient heaviness that the charts, physical safety or psychological or emotional welfare demands it. So, therefore, it's not just physical safety. Could be psychological could be emotional as well in that regard. But again, it's gonna be a decision that's taken, which is necessary and proportionate in the circumstances and also the higher standards of justification that must be shown by local authority. Seeking an order for separation requires it to inform the court of all available resources that may removed need at for separation, and therefore that's one of the other key things in this case in that, even if it's still not a lot of thought, his plan, it is important for them to come to court by big to put forward all available resources that may avoid the need for removal. In those circumstances, at least a court can. And, of course, consider all those options in deciding what order, if any, to make Andi here on the facts that one of the main issues really was mother's ability to be able to separate and keep away from the father. They had been a history of domestic abuse at the child, had been in a killed a mother since birth. And, like said, a local authority applied footing from care order on the day that the child was born on this sort to place the child in Foster K threshold were not an issue in this case on. At the first hearing after contested hearing, the maternal grandmother gave evidence in the court, did in fact grant interim care order. But they placed a child and mother together at the home of maternal grandmother in terms of a written agreement on the mother was stating that she was no longer in a relationship with the father on any junction was made against at the father commented that dress So again, this is where you're looking at all other options in that regard, looking at therefore avoiding the need for an interim care order, hand looking at avoiding the need for separation of mother and child together. Relationship, however, between the mother on the grandmother became fractures and that led to the local authority subsequently didn't seeking to remove the child into foster care and in fact, the mother and child were subsequently moved into a mother and baby foster placement, which was the last with some 12 weeks. This is where the local photon and became concerned that the mother was now associating with the father did and therefore breaching the safety planete working agreement on. They then applied to removed a child into foster care on the basis that the mother was now meeting with the father and she was not to do so. But at that hearing, warnings were given to mother on, the application was adjourned. In the meantime, the mother and child remained in the mother and baby foster placement. Mother then continued to lie about her communication with Thea, Father I and a pair only mother. Maybe foster placement, even though there was a I could between the mother and the child. Andi certainly shoot. Mother was providing good basic care. She was still lying about her involvement with the father. She was having telephone conversation with the father. She was actually continued to smoke cannabis. She was reluctant to accept the advice about parenting on that main concern was that she was putting the child's needs a relationship with with their partner beyond before the needs off, meeting the child's needs on. And this is where the local thought he wants again. Sort removal Onda, Even though the court is satisfied up, Mother had lied in evidence about her past defense. The court did not sanction removal. Instant, a court directed for the local thought to identify another mother and baby foster placement on the child. A mother were placed there. So you can see how really this case went along on the basis that even though the mother was reaching the working agreement, uh, but principally by associating with her father, which she wasn't taped today. So given she was in the mother and baby foster placement that wasn't an immediate risk to a child. And therefore, despite the efforts by the local authority, Plant four remove was not being indoors but a court. So during the four month period, the local authority has consistently argued that the charge removed what the court refused to endorse. This, despite the lies on the part of both under breaches of safety agreement by the mother. There had been a parenting assessment undertaken was the mother was in the mother and baby foster placement, and this recommended that the risks did outweigh the positives and recommended that charge to be removed from mother's care and placed in foster care. Now, even though the court therefore satisfied that mothered light the court again, as I said, you know, a sanction removal in the circumstances on uh what then happened thereafter was the foster placement that the mother was in that was such that this in fact, did break down. The mother was in that placement, Andi, for some 11 days or so prior to it being broke, portrait breaking down. It had been alleged that the mother was not complying with most of the air safety plans. So she was breaching the agreed safety plan almost on a daily basis that she was amended. Door closed. In a real, for example, baby monitor turned off so that she could cover up the year phone calls that she was having with the father. She had on one occasion left a child unsupervised while she was in another room smoking. And also she was verbally BC, even threatening in their foster placement and argumentative and finding to take advice. And this is what a local thought it did then seek removal, which was endorsed. S order did separate. That's where the mother then challenged the plan in that regard on does what led to the the actual application being brought to the court of appeal? It's a mother appealed against the year removal, which had been endorsed by the court. Now mothers Main argument was this mother's mother's argued that the judge based his decision of Alang removal under based on the events of the previous 11 days, which mother said the local authority, relying upon them principal on basis that had been shown that she had been untruthful, immature and confrontational on the judge had found to really weigh up the impact off what the last four months had been like and the fact that actually the mother had been in other placements and and actually do a lot of positives there. And, um, the local thought he argued that the removal was not the only realistic option in the circumstances where there was no alternative placement which could be identified in the circumstances. Mother was arguing that there were alternative options such as foster care, the alternative foster placements on this was a case where by she was a nice late a young mother with the first child on that. In fact, the final hearing was shed your to take place in some 12 weeks time. Onda, we need a court should not have separate at this stage. The matter had not reached at a level of seriousness that would justify separation on the facts on uh, what did the court therefore make off this hard to the court view this world effectively the court to take the view that this was a case where by a final him, and like they was due to take place, is on three months thereafter. Andi. It couldn't be foreseen as to whether the local thought he would be successful otherwise in their application for seeking care order with a placement away from mother and therefore there was a need to keep all options open. Toe court Making a final decision The separation of the mother and the child at this crucial development stage would impact seriously upon the bond between the child and the mother on therefore, they need to be a high level of justification in order to do that in here, the reasons that were given four separation could not be seen a sufficient enough in the circumstances. So in fact, the court appear took divvy that remove off mother on the facts Here was not the only realistic option that should have been alternative placement, which was identified for mother and even if Mother was still in contact with the father whilst the chart remained with mother in a modern baby foster placement that didn't represent an immediate vest. Her child safety Onda Azul appreciate even if Mother was associated with the father she was in the foster placement of Father wasn't allowed there and therefore it wasn't the case that that child dear association with father was causing an immediate risk to the child. But of course, the fact that mother was associating with Father therefore, breaching the working agreement would be a factor which the court would take into account, certainly in terms of welfare. But it would be a matter which would be relevant for the final hearing and not at the interim stage. And therefore, that's why, on the facts it was found that the decision to separate should not have been made. It was somewhat premature. Therefore, at the interim care order would be set aside on the basis off the continuing interim care plan off Separation of the child from Mother's Care Takes, That's that case. Finally, I want to discuss with you another relatively recent case. This is the case of L. A. Against ex wives. That restriction of father's role in proceedings This was a 2019 decision of 18th of February 20 1900 time by Mr Justice Slice sitting in the High Court of Justice Family Division that this case really brings into play somebody difficult decisions that are often needed to be made in whether somebody should be joined as a party, whether they should be discharged at a party where they should have only redacted documents given to them, and also the extent to which local authorities are going to be required to continue to, uh, provide the person concerned, in this case, the father with information about their child in accordance with their duties under Section 22 a. Through to see off the Children Act of 89. So this case that was one whereby case involved a child who had been residing with a special guardian replacement was was not working well on the child's father, who was in fact serving time in prison and who had print responsibility for the child became ready subject of this case because a question was should be served with the applications that were being brought by the local authority should be given notice. Very mind. Potentially study poster child on. This was a case where by like said, a child was living with special guardian. The child's father, who had print responsibility, was on the city from the answer party to proceedings, but he had been convicted off, having cut murdered the child's mother and therefore his former partner here aunt. He had been convicted of her mother murder and he was serving a life sentence with a minimum minimum term off 22 years. So there were four applications that the local authority had lodged here. First of local thought he had lodged an application for a care order. They wanted to bring care proceedings in relation to the kale. I could be given to the child. It's second Nature was seeking an order under Section 34 subsection four A Children Act for permission to refuse contact between the child and the father said they were seeking that permissive order. Thirdly, they were seeking an order under T Inherit jurisdiction, where nobody wanted a declaration to be relieved of their duties under the Children are principally Section 22 a three to see, to give the father notice in relation to any decisions related to child. And finally, the local thought he wanted to discharge. The father was a party to the applications for a care order and also the Section 34 4 order. So that's the thinking behind. That's a number of applications that have been large, but a local authority that the father had been given notice sort of various applications, and he had been given redacted documents so as to really understand the nature of the applications but not sufficient information to know about the child's whereabouts. When information which may identify, uh, information about the child, the God is important applications at the local thought he were bringing, Andi got a father wanted to participate in the proceedings on. He did, in fact opposed the orders that would be sort against i u for him to be discharged as a party to both guarantee Section 34 also 40 Section 34 order to be made and also for the inherent jurisdiction order that was sort. He's argumentative. Father's argument, principally, was that he wasn't undermining the child's position at all. He said that he just wanted to be involved in the proceedings. Andi, he said that he wasn't that you were trying to hurt a child, but simply wanted to rely upon his Article six and eight rights bearing. In my particularly date, he was the child's father and had burned to responsibility. On it was, he argued, it was difficult for him to know what was going on in this child's life when he David know where she was and with whom she was actually living. And, um, the court did in fact grant of various application that would be sorted, of course, satisfied at the involvement but by their father in the proceedings would be deeply harmful to child on the flax. On that, these orders were exceptional, but the word necessary in order to protect the child's emotional and also psychological well being. Now there was some very important procedural points that the court put together in this case to assist going forward. Firstly, the court said that early consideration needs to be given to matters of this kind. So where's in this case? The father had prince responsibilities, of course, going to be on automatic parties proceedings perceived apart marvel of funding procedure rooms, then in Cape seedings, responsibility for service forms upon the applicant. In this case, the local authority on Part 12 provides who should be on automatic party, and you should be given notice when the application on. It's an issue that should therefore be considered in each case, particularly where the involvement of the other party may cause a child psychological emotional home in this case. So therefore, that's something that should have been dealt with. It was dealt with right from the answer. Sickly consideration should actually then be given as to what steps can or should be taken, such as applying for Northern limiting or managing disclosure of documents or even discharging a party from proceedings. And that should therefore be dealt with as soon as is possible. And certainly from the outset, as in this case and if in order is sort consideration should Dember given as to whether or not the March issue that should be transferred, reallocating maybe into family court to a high court judge level, possibly limited to consideration of the issue. So again, that needs to be considered. Also, whether the case should be re allocated to a family judge at high court level on this was a case where, by, as I mentioned, the chance father had killed the child's mother on that child wasn't present in the home when and whether was killed, but a child subsequently in place with another person have been Section 91 14. Orders made previously in private or proceedings prevented a father making any further applications. He was very limited to a contact in the previous proceedings. And if the child did see contact all in directly of the world directly, don't care would actually take what steps were necessary. The difficulty was that in the period set of proceedings Thea despite dif Beavis this specific orders that were made, the father's work colleague had actually being approached by father to follow the child in the street, trying to take photographs and then to persuade the Childs carer to take the child to visit the father in prison on also, one of the associates of Fart Associates of Art actually attended to the address of the care and try to force their way in causing the child distress. Or obviously, with that background, you can see why the local thought were very careful about the specific orders that they were seeking. The reasons why no relation to d issue about party status and therefore discharging the father's. A party at the court appeal did say that the father did have turned responsibility. Her saw her ladyship that slide out the father deal of PR. He was there for by vich of that an automatic responded to the party to replicate at proceedings and therefore to the application to care order. Nor so the application under Section 34 4 But Rule 12.3 allows the party to an application, uh, to an application to seek a declaration to discharge another party from the proceedings and that could be done. And therefore these applications need to be considered as soon as possible because obviously they bring into play the father's on the child's articulate in Article six fights Now. This is where the court specifically referred to the previous case off re x and y. So this was a case of Mrs Just his nose in reacts and why the case of 2018 in a particular case at the court again emphasized time portal is for the court to address tissue apart staters on discharge very early on. In that particular case, the local authority had lodged applications for the revocation of placement orders and also a Section three for four order as well as an order fighting having jurisdiction on the High Court to absolve themselves of informing father off the chance progress other than very limited information on the circumstance in that particular case of except My where that the father, just like this current case, was convicted in prison. He had been convicted the X and y case, however, for Herman, Camp carried out various serious sexual offenses against the Children who had a subject off the proceedings on he was serving at many under sentence off 22 years. The court on the facts of that case had decided to discharge the father's party. Andi also had granted local thought it inherent jurisdiction orders that were being sort on Dhere, therefore plying that type of logic, particularly given the potential risk that the father posed to the child. Applying that here, what would the court do in relation to local thought? His application under the inhabit jurisdiction on this is where the local authority applied under that route to seek to invoke Section 100 other Children. Act will bide a sort declaration that the child's welfare was inconsistent with any of the obligations set out under Children to consult or referred to inform the child's father in relation to anything about the child's progress, development or well being. What's the child remained in their care and As you know, Section 22 of the Children Act specifically provides that before the local authority carries out, makes the decisions relation to a child's welfare they show so far sees reason. Practical ascertained with some things are not just a child but also trance parents and therefore they six terraces, statutory duty upon them to gather on, ascertain the chance of the father's wishes and feelings. But the local authority here which to avail themselves off that here, particularly given the view of the child off the father and the fact that a child was scared of the father and the potential risk off the father or so once again becoming involved in a child's life and particularly tracking a child down and then causing calm. But also the court took the view that here, because this is important to play Article six and eight of the European Convention, the facts were such that the Article eight rights off the child had already been significantly breached. My father's involvement, that is to say, by his very actions. By murdering the child's mother, he had removed the child's mother from the child's life permanently and irrevocably, and yet prevent a child from there for having any yard, Accolate writes with her own mother on. That was a significant disregard for a chance. Welfare on a father, undercharged was fearful from off the father having any information about her and didn't wish for that to happen. So when you put that into context, even though the father was saying that he just simply wish to engage, his article six and eight writes. On balance, the core felt that this was one of those exceptional cases where, by the year chart, the father should not be consulted well informed about the chance development in that regard the child likes. I was very worried about her father having information whereby he could get others to hurt her or care or her family particularly bearing in mind that the evidence already had shown that he had done this once before. The father was saying that he did, which to seek any further disclosure documents, and he accepted he wasn't in a position to be able to offer. The child replacement is simply wanted a chance to send cards to the child. Twice a year now, one of the other things the court did say is the local authority. I had applied to restrict the father's parent responsibility, but was this necessary? Bearing in mind sections 33 sub Section three, Subsection four off the Children would state that whilst the Charles isn't Waas, there is a care order in force. The local authority show her parent responsibility for the child, and they have the power to determine the extent to which other people such appearance exercise that on they fought. The blocks are thought to do have some discretion as to how they safeguard and promote the child's welfare. But that wasn't in itself sufficient enough to then absolved a local authority of day responsibility towards referring to the father decisions that a lot of thought it may wish to make into informant and to consult him. Therefore, on balance, the court did take the view that they would make the inherent jurisdiction application. It was necessary on the facts on the court satisfied that if such an order was not made, a child is like to suffer significant psychological and emotional harm. Knowing that details about her one likely to be disclosed on, then shared with the father and if on the facts there. The court did feel that that in fact was necessary in the appropriate order in the circumstances. Okay, so you can see it's a very important case and therefore one that really hammers home importance of getting those applications before the quarter's earliest possible. Okay, so that brings this third and final session toe unanswered conceded. I have covered a fair bit off additional recent cases with you and provision in particular surrounding Children proceedings, both private and principally public child care proceedings. We looked at special garden ship in some detail today. We spent some time looking at www and also revisiting findings as well as revocation of placement orders on also the difficult area about entrance separation of Children under interim care orders. And recently, at the last case, I looked ized issue about party state as discharging a party and also local thought he seeking to use then Hammett jurisdiction to absolve themselves of certain responsibilities towards. But parents, thank you very much indeed for listening. I hope these three sessions have been used for for you to bring you up to speed and some of the updates in this field on the hope like I say that they have been useful and no doubt I speak to you again at some stage. Thank you very much indeed. Onder or the best for now. Bye.
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