Hello. Welcome. Everybody very pleased to welcome you to today's session. This is Children Law. Essential Autumn 2020. Update through data law. This is session number two. My name's softer Mahmoud. Um, a solicitor. And I'm very pleased to welcome you to today's session. As you know, this session and follows on from the previous wonder recovered, whereby I'm spending two hours with you going through somebody. Key developments, updates both statute and case law. Uh, principally due in 2020 and also some elements of 2019 insofar as Children law is concerned. So we're looking at some elements of private and public Children Law are linked within that I'm looking at elements surrounding adoption, for example, use of inherent jurisdiction on injunctions in that regard on, of course, it is necessary for those of you whether you're acting for Children where you're acting for local authorities, whether you're for parents or extended family members and its, uh, done, it developed in such a way that it gives you that particular practical angle to it. Now, last time, then you remember, spent to spent a favorite of time going through with you. Somebody aspect some private Children always spent some time looking at her. The private law program. Some of the proposed changes on that We looked at practice Direction 12 j and some recent case law on that. And also we had a look at the guidance that's been handed down, particularly to assist us during the covered 19 pandemic. So the guidance related to child arrangements, for example, in particular in that regard we also looked at some cases relating to parental alienation on the public law side. Last time I spent some time going through some of the duties related to contact on public law and how does have been impacted by the covered 19 pandemic on. We also then spent some time looking at matters relating to adoption in particular, relinquish Children cases and also the cover 19 adoption agencies, coronavirus and management eggs after 2020 in particular. So number of key elements last time. What I'm going to be covering with you today is continuing to really the theme off updates principally throughout 2020 as they relate to Children matters in particular, such that I'm going to be going through with you somebody developments surrounding interim removal, for example, this particular case off we see, for example, which will be looking at in that regard, Andi will also be then looking at the position surrounding participation directions on also some of the developments s surrounding the construction of a payment off late intermediaries. In our cases, we look at the cumulative effect of threshold, will have a look at some matters related to that and also cases where the courts have decided to switch child arrangements and residents in public law cases. And then we look at joinder, particularly when you got issues surrounding special guardianship and what the current thinking on that is on towards the latter part of today, I'll spend some time looking at the position of deprivation off liberty cases. Okay, so I want to start with this case off. Re see, we see a child. This'd is a very useful case which pulls together sort of key elements surrounding interim removal under an interim care order. Many of you will know that when local authorities are involved in public Children or proceedings, then it may be that they need to consider on interim care plan of one of removal off the chart from parental care. Maybe into foster care. Andi as well. A satisfying the court first and foremost on threshold under Section 38 subsection two of the Children after they need to go on on satisfied the test off removal. The test, which has been set in place for some years now in one of the earlier cases of L. A relay of 2009. Some of you will remember the quarter of your decision is that one nieces satisfied a court that discharge safety demands immediate separation on. That's, of course, a test which has really had been tested three times in so faras different situations this recent case and very much looks at that point in so far as the position surrounding de at the possibility of placement, a unit and removal. So this was rea ch Ardan from separation off earlier this year, 26th of February leading judgment had done by Lord Justice Peter Jackson. The case itself involved a five month old child she was cared for by a mother under supervision in a residential assessment unit. So she was in one does residential assessment units, and she was later placed in foster care on the judge heard a contested hearing decided that the mother in charge should be reunited. A different residential unit, which is what led to the local authorities and appealing against that decision on the local authority, had initially identified of residential unit, which was going to be providing a fairly high level off supervision on support Onda. A report produced by the unit showed that the mother had maintained abstinence from drugs. She showed good capability and being out to meet most of the practical day to day tasks for the benefit of the child. But she was somewhat reluctant to accept somebody advice that was being given to her in that unit on thistles where mother had been given a formal warning as well at the unit on the recommendation was that the child should remain in mother's full time care in a mother and baby Foster placement was supported living arrangement on that the unit were prepared to hold on to a child until such a unit became available. But then there was an incident. There was an incident that occurred at the unit on demand. What happened is the and it's not occurred, which led to the placement coming to an end on this Is that the The mother fell out of her wheelchair while she was holding the child on this incident was recorded on the CCTV camera on the mother was holding the child and asked. The family support worker was sitting next to her for blanket, which he gave on the second height in which seemed to be a dummy. Onda mother started moving a chair. Andi, uh, this was one whereby her foot slipped on the floor, which led mother to fall forward, and she nearly fell on top of the baby who has been carried in a right arm. The chart, thankfully, was not injured in this incident. The local authority, uh, we're told by the unit that they could not continue with the placement on by the local authority applied to the court for authority to separate. As you'll appreciate, even though the local authority have got the benefit of an interim care order, unless they can show it was another emergency. And unless they can sure that by giving notice it would place a chart immediate risk, they would ordinarily seek to bring the matter back before the court to seek court authorization to be able to separate the child from mother's care to ensure that their Article eight rights were not breached in that regard. So that's what the local authority did. They brought the matter back to court, seeking authorization by way of separation. On that, the trial judge did consider the test for interim separation in a set out in some of the previous authorities. But more recently, in the case of we see a child, 2019 Quarter of Peace is Pure Decision on the judge asked themselves the question, which is whether the facts, as they were, amounted to an imminent risk off serious harm on whether removal was in fact proportionate to risk off off the child staying in mother's care. Because, as you know, that's very much what has to be balanced. We've got some of the previous case is a case of re be, for example, in 2000 and nine, the same year that L. A. Was decided, we're one. When one looks at removal, one has to compare the harm that the child will be subjected to if they remain, if they were place elsewhere versus the harm or likelihood of harm that they will be exposed to if they were to return or to remain placed in parental case. It's a question really balancing the potential risks that the child in that regard, Andi. Therefore, the judge quite rightly asked that that was the question that needs to be considered on the facts. The judge decided that the test was not made out, and he gave his reasons on the basis that the incident was a pure accident on accents. Of course, can and do happen on Children are not removed as a result, off accidents. Uh, there was an alternative placement. It may have been less good supervision, such as for CCTV camera. But CCTV did not stop this incident, of course, from happening. What mattered, the judge said, was mother's willingness to engage. So therefore, the judge didn't feel on the facts that detest for remover and separation was made, and that's what led to the appeal. So the local thought it did appeal on day. They said that the decision was not a likely or imminent risk of serious harm on that regard, and the local authority said that the judge wrongly treated the fall of an isolated incident rather than accident waiting to happen on that. What was decided ultimately is that it was felt that the judge should have accepted the view that the mother's evidence showed that she had not learned from mistakes and she couldn't commit to the level of engagement needs to safeguard a child. The local authority argue to safeguards were available in the or 20 placement, but there would be inadequate because I didn't have complete CCTV coverage. If the child couldn't be kept safe in the mother's care in the original unit, with all that level of supervision and how intense it was, how could that child be safe in another placement? We didn't have that the same level of intensive safeguarding Andi. Ultimately, the court decided that, of course, when it comes to removal, decisions about removal of a child from parents is understandably one of the most anxious decisions that any judge from the judge would have to make separation may prove irreversible on the fact that decision after us we taken urgently with very little evidence doesn't diminish the need for a judge to coherently on adequately balance off the arguments front against the rational way Andi, his lordships that astrologers was also in touch to consider that the alternative placement was sufficiently protective. Okay, so here on the facts, even though they were very serious issues, that the local thought her raising, the trial judge had made it clear to the mother that she was not. She was now being given basically a last chance to show that with support, she could parent her child to a good enough standard on there for the appeal was dismissed. Okay, so you can see it's a very finally map fine balance which has to them be really decided on in deciding to affect removal in these kind of cases. Right? Okay. That then brings us on to the other issues surrounding participation directions. As many of you will know that these are really provision that we have had in place for some years in so faras special measures are concerned, but special participation direction specifically were brought in at some years ago. As a result, off part three A and part destruction 38 supplemented the family procedurals on one of the city points that have raised here is when you are looking to instruct an expert, whether it's maybe a psychiatrist or psychologist. I would suggest that it's very important for you to make it clear in your letter of instruction to them that if they are going to be recommending maybe a neck spurt ex assessment thereafter experts. But support whether it's maybe an intermediary or lay advocate that to make clear as to who it is and for what purpose. Because, of course, they will be fulfilling to some extent different functions on this is where if, for example, there is a need for an intermediary to be engaged, one in the process of actually can get an assessment as to what support might be needed and then actually facilitating the assistance for the person concerned that this is where the issue of cost comes into play on. This is where we've got this link that have put here for you in so far as the position with what the HMC TS will be in a position to pay for in such situations, Andi, this link will take you to the guidance to family courts payment for special measures. On in particular, this provides that there is no statutory requirement for HMC ts to fund an intermediary. We indeed even an intermediary assessment in Phillips things. But where it appears the court that this is the only way a part of your witness can properly participating proceedings will be questioned in court than adjust my order that there be an assessment, Andi, uh, to determine the nature of the sport that person may need in a courtroom. And secondly, for funding for that intermediary. So it is possible on hedged. Some CTS may then provide the funding if there is no other available source off funding. So that is, of course, available. Intermediaries I usually appointed to support one of our parties witnesses to participate, to understand proceedings like Maybe that somebody who's perhaps kind of learning disability, for example, on intermediate or being caught, Who will? Then we phase the questions that perhaps I would put to the witness in a way where it's more easily understandable for the witness on. Also, for them to be able to communicate that intermediary so as to put forward their views so you can see into media is will play a very significant role in that regard on what this gardens provides us that age. PCTs can also if necessary, fund the cost of intermediary to assist with the preparation off work outside the court, but only if this is directly relevant to the matters to be dealt with in the courtroom. Andi, Generally speaking, HMC ts will not fund the provision off intimate TVs outside the courtroom. So that's very much where this guidance comes in. But since then, we've had developments surrounding the issue off lay advocates in particular on this is where this first case off we see lay advocates off late last year really looked at this issue and for the purposes of this case. And then it was, uh, looked at again as a number to His Lordship, Mr Justice Key And who heard the case looked at What is Ah, LEH, advocate. And essentially, for the purpose of this judgment lay advocate, somebody who doesn't provide legal services did not. A Mackenzie friend did not an intermediary, uh, it's essentially a person who is qualified or may have experienced of assisting and supporting somebody who has an intellectual impairment or letting difficulty which compromises their ability to process and compound information. Okay, so a lay advocate may play a part in making sure that that person stands the information and they can respond to it and they can communicate in that regard. Okay. And lay advocate may play that part either doing proceedings before proceedings and even after proceedings. And sometimes some of you may find that lay advocates actually quiet to come to your office is, for example, when you are take instructions on explaining matters to your clients, respectively. So this decision on the 13th of December 2019 was one whereby the issue that was raised was in relation to do funding off lay advocates for the parents. In this case, both parents had undertaken cognitive functioning assessments. Andi, it was a case where body was a recommendation for a lay advocate for both mother and father at the earliest opportunity here, both before the proceedings and also during the proceedings and all meetings and all court hearings. Okay, so that was the recommendation. Andi, uh, it was felt that although some assistance can be provided by thes solicitors, do Legal aid agency had notified the solicitors for the parents that they could not fund at the advocates on his Lordship did say that it would be inappropriate on the facts to impose the burden on the parents respective solicitors here to provide the support which the legal agency was not in a position to fund. Uh, it was inappropriate to impose that requirement upon the parents solicitous for them, then to ensure that the parents understood the evidence and the issues on then to enable them to communicate their instructions in its accurate format, particularly when you've got very busy. Publicly funded solicitors working in this field on His Lordship did say that if a lay advocate was not provided, appears to difficulty, would be that they would then be at serious risk of having their article six writes breached because they wouldn't then have a right to a fair trial. They wouldn't be in a position to be up to them, have a voice in other than off course through their lawyers, and being able to have information explains them to be able to communicate and to be able to fully participate in the proceedings. So his lordship talk to view that there was no material difference. In fact, between what the services are the are provided by an intermediary or interpreter or lay advocate, they all are there to provide support two parties or witnesses to enable them to communicate and understand. So therefore, there wasn't any material difference between them. They will play the on separate roads insofar as ensuring that that process was gone through. On what the judge therefore did is the judge in fact, appointed a Les Advocate for the mother and allay advocate for the father. And the fact that cost £30 an hour, which the court considered was reasonable number of hours, was to be 50 and therefore the court ordered at HMC ts would pay for a cost of a lay advocate for mother on father. Now, soon after this decision, it came back a few months later as we see lay advocates number two also again before Mr Justice. Keen on this is where, like, say, his Lordship took the opportunity to explain specifically what a lay advocate is. As I just mentioned on, there was a need. He was felt for a change for variation of the original order on This is where the secretary of State claimed executive just a state for justice claimed that the regional budget manager, maden ever or miscommunication and agreeing to fund lay advocates for the parents that court on also fall out of court appointments. It was argued that HMC ts does not indeed cannot be required to fund lay advocates out off course. So therefore, there was discussion between the parties and so far is how the cost would be mad on, ultimately by agreement. The previous order was in fact varied. Saw that firstly, Hatem CTS were funded provisional Vlad Fico in the proper cases for for a party at court hearings. It's not. Provision was provided before, but secondly, the legal aid agency would then fund the provision of a lay advocate if they were so satisfied that it was necessary dispersement to support and assist departing, communicating with s electoral council. Okay, so you can see this famous ties in with how the position with intermediaries or dealt with also so that hmc ts were fund a court hearings. But outside off course, for example, meetings, for example, if the legal identity feel it appropriate, they were fund to assist that person in meetings and they fought lawyers meetings with lawyers on also outside court, generally now linked with the position on participation. There's also this other very important case earlier this year. This is D and E apparent with autism. This was a 2020 decision handed down by his honor Judge Middleton Roy, on the length of Made at 2020 on that. This is a case which really also, uh, takes into account the fact that because more more worse off, of course, during hearings remotely as a result of covered 19, that means that some clients, of course who maybe litigants in person and who may not be are also therefore expected to participate through the more hearings on through hybrid hearings. And we have to be alive to the fact that some clients will, of course, have difficulties with that, particularly those clients who may be on the autistic spectrum. So His Lordship said that autism, including Asperger's syndrome, is a lifelong development or disability, which effects the way in which people communicate with each other and see the word a random Andi uh, somebody maybe on the autistic spectrum on, although they will, of course, somebody who's autistic or share certain characteristics. Each person is very different, okay, so each person will have difficulties with social communication and integration Andi. Therefore, this is where there could be difficulties for somebody who is autistic. At court of Examples off example, there could be issues over sensory overload due to lights, for example, noise, difficulty answering hypothetical questions. So when we are putting questions as lawyers, too, somebody who may be autistic that may not be able to understand in the same way, or acknowledge and assimilate information in the same way difficult to technologies on also setting out what expectations are in that regard. Okay, Andi, also, when it's appropriate to speak or not speak in courts, of course, not only is that difficult when we are doing face to face hearings, but it could be even more difficult when we're doing hearings remotely, whether through video conference or otherwise on. Therefore, because of that, reasonable adjustments need to, of course, be made for clients and also circumstances when it comes to giving instructions when it comes to, for example, explaining what the procedure is about. Providing a written timetable, for example to help declined to reduce anxiety in that regard. Okay, so you can see some very, very important points that were being raised by his honor in this case, right? What I'm now going to be looking at that is the accumulative effect off threshold for personal sections that you want to. On this case off BT is very important to this court appeal decision of late because it really answers that question, which which is on people's minds, which is, if you've got a threshold document which has, say, 10 points to it cites two pages and it's got 10 different points us to why the local authority are suggesting that the threshold under 38 or 31 2 are both are met. Then is it the case that each of those 10 points needs to satisfy threshold? Or can you look at it cumulatively to say that these altogether satisfied a threshold on the 38 2 or 31 2 as the case may be on? This is very much what this case really looked at it. So this was quarter appeal. Leading judgment handed down by Lord Justice Peter Jackson Onda on the third of June of this year, sort of case itself involved a care application relating to a child who is now approaching one years of age. This child was wheezy on was taken to hospital. Nawas. That child, Waas the child was that hospital at the nursing fact noticed that the father was seen to be miss and link the baby in a hospital cubicle when the child was in hospital. Before this, it was also noticed that the child had bruising to his face what appeared to be birthmarks, but this needed investigating on like, say, wasa child was with the father in the hospital cubicle on this saw what appeared to be the father flipping the child into the air, so flipping the child into the air, causing him to rotate 360 degrees in the air before the father and caught him. So you could imagine the potential risk her child there now. The father claimed that he had been trying to set on a child by cuddling and cradling him, and that wasn't happening on. This is where Hey said that at that point he was sitting on the bed and he tried to rotate a child in the 360 degree motion as a last resort. But he did say the baby's head was supported throughout, but nonetheless he did, except that he did do what? What he appeared to be. Now the nurse said that she saw her father. She couldn't at first see whether he was holding a dull, but then was was surprised and shocked to find that, in fact, it was. It was a baby that the chart father had flipped into the air in this manner. Now this led to local authorities and seeking in the medicine protection order which they did, which they obtained and charge was placed in foster care on the local thought it and subsequently lodged kept ceilings. And they did very detailed threshold document with a detailed a lot of for the matters related to threshold. And they saw threshold to be met on the basis off Section 31 to but a court, in fact, on the facts. The trial judge, in fact, dismissed Thea publication on the judge also refused to local those application for holding interim care order under Section 40 of the Children Act. On the consequence of that, by refusing that the judge, the local authority had no option but then to have to return the Children the child rather immediately to the parents unless the parents agreed to the child being accommodated for a transitional period, so therefore they had to return pending any appeal. For example. Now why was it that the judge decided to allow to dismiss the application of firstly in relation to the instant at the hospital? The charge would accept that the father had been motivated by desire to settle a child. Andi had not acted in anger or distress or within with any intent to cause harm. Okay, the judge did accept that the steps the father to take were highly unusual and or can maneuver. But it wasn't that father was doing this in anger or frustration or off anything of that nature. As for the bruising to child, the judge was satisfied that the most probable cause of the bruising was that apparent on the grandfather on the fax accidentally bumped into something whilst holding a child had dropped on knock something near the baby's face. The judge was not satisfied that the threshold were met in so far as, uh, the bruising were concerned. Then there were also allegations that were being raised in relation to vulnerability to domestic abuse. On the judge rejected the part, saying that vulnerability of this kind will really be a threshold fact on the local authority had not pleading its case on then. There were issues over home conditions whereby the allegation was that the parents neglected the child's physical needs. House was a cluttered, unsafe and unhygienic. There were rabbits, for example, in the property with rabbit droppings throughout Onda. The judge did say that although this was of concern, the local authority and indeed the state has to tolerate Children being raised in these circumstances on it remained that poor standards in the house did not in themselves meets the threshold of Section 31. So you can see each of these four factors a judge looked at and said individually. None of them met the threshold under 31 to Andi. Uh, therefore, the application was dismissed, and that's what led to the appeal on his charge was returned home. The local authority did appeal, and I said that the judge was wrong to find that the serious risks involved in the father behavior did not a matter of risk of significant harm, particularly where the father had done it before and also had been worn part of mother and had denied, in fact what he had done. So, in fact, he knew about the potential risks on. But he had had done this before and had failed to act upon it. So what? What did the court appeal? Decide what a quarter appeal took this position. They said that the father's bizarre handling us has His Lordship put it off. A baby of this stage plainly gave rise to real possibility future harm that could not be ignored. This was a very serious concern. That harm might result that May result was not merely significant, but serious on the treatment of a child was undoubtedly not what was reasonable for any parent, however inexperienced there may be. So even before one looks at the bruising even before one looks at the home conditions on the domestic abuse allegations, the instant in the hospital alone, the flipping, um, instant as it was, where the child was flipped into the air 260 degrees that in itself, his lordship said, was sufficient to cross the threshold on a judge should have just found should have found that threshold. We met just on that instant along. But then the question. Really, At this point, case raises is, Can you look at threshold? Can you look at all the instance together to see that threshold automatic a. Cumulatively Onda do? The answer to that is yes, the factors can be taken to account, his lordship says, when considering threshold conditions, one needs to and can look at the whole picture. So if you look at paragraph 46 of the judgment in particular, His Lordship said that instead of looking at the whole picture, that of findings painted, the judge treated these individual finding in their own compartments. And that's not what the judge should have done. Should have looked at all of them. So the judge had founder. Each of these matters individually fell below the threshold. But what she didn't he was to stand back and look at the whole picture to satisfy herself. Sat put together a cumulatively. Does this satisfy threshold under 31 2? And if the judge had done so, threshold would have been met in terms of the bruising, even accidental in a newborn baby had quite a different significance to bruising in a mobile child on the judge was banned, considered likely to repetition were no satisfactory explanation has been given. So there there was evidence of likelihood of suffering significant harm on the court said. We don't even need evidence expert evidence on the effects off the chart being flipped 360 degrees because of the significant risk that a child might suffer in those circumstances. So putting all this together, the threshold should have clearly been met in the circumstances. Now the court then went on to the question surrounding the sexual 40. The section 40 as I mentioned earlier off the Children Act, is that provision, which allows it's a bit like a states. It's the power to grant a stay of protection pending any appeal where if it suggests that the quarters inadvertently got it wrong, so that's essentially what it is. So here, if the local authority are saying well, the judges dismissed the application, we wish to appeal. We of course not going to be having that heard straight away. It's it's unsafe to have discharge returned back into parental care at this stage. So can we utilize a sexual 40 route to enable this child to remain where they are? And they fought, uh, for a chart to be returned back to parents to be stayed pending on appeal. Onda had a judge applied to correct her test. She would have Bean. She would have likely to have granted either a short term order under Section 40 or effectively a short stay. Okay, it's a section 40. If you were able to look at this, it provides that where orders pending appeals in cases about careful supervision orders way for court dismisses an application for care order. At the same time when the court dismisses the application, a child concerned this subject an interim care order, which is the case here. The court may make a careful to respect the charter of effects subject to directions, as the court may include. Okay, so that's what the court could have done because the child was subject interim care order the court could have. Even though it was dismissed, the court could have made limited directions pending, and it appeal that that was heard so effectively The Section 40 provides a short term safety net, so to speak, which which on the facts the judge did not follow, therefore, that that should have been done in the circumstances. So had the judge applied the correct test, the judge would have certainly found at the threshold of matter. And even if not than had a judge applied deep provisions under section 40 the judge would have made a short term order under section 40. So I was to grant that short today. So you can see this case very much. Pulls together the point about threshold camp, can't maybe met then by looking at matters the whole picture sort speaking, therefore, looking at all matters cumulatively in that regard, right? Okay. What I want to now look at is the position off switching of residence within care proceedings on this could be particularly relevant where you've got cases, uh, whereby it's unsafe for a child to be placed with one parent and instead is a place where the other parent has. You know, that is possible. You've got the, uh, various provisions under the care planning placed into case review in London Wells regulations which allows Children to be placed under care orders or interim care orders at home. On this particular case off, a local authority on mother and others looked at looked at this issue but also this case looked at the position surrounding whether or not one was looking at her placement at home, with either of the parties on just putting it together then. So this case was one which was handed down by Mr Justice. Hayden eyes one whereby one of the Children, a 14 year old, had complex health needs. So there were two Children, one age 12, 1 age 14 to 14 year old. Had complex health and social care needs had a condition whereby that child was a quadriplegic. Aunt had s over policy. Now the child resided with mother at home, as did the 12 year old on the mother thought quite significant adaptations in the family home to be able to meet the child's needs. Andi she mother had taken The local authority had taken litigation against local authority, with beauty seeking quite substantial payments to be able to specifically adapt the home to be able to meet the child's needs. Now, in so far as the father is concerned, a Muslim father had separated. The evidence showed that the father did very much love these Children on. He didn't in anyway, let his son's disabilities affect matters, so he didn't see his son's disability as a burden anyway. Hey saw that the disability was just there, but wasn't going to affect in any way the way in which he loved and saw his son at all on bond. Sadly, the difficulties here was that the father wasn't told about what was going on the family home when he should have bean, which is what led to difficulties here. The relationship between the father and the local authority had broken down, partially because of the frustration that the father had had in the manner in which the local authority had aimed to and had looked after the Children's needs. Now the mother herself was very vulnerable. Under fax Andi, there was evidence that shoulder Anonymous phone call had been made a local authority forming them. That mother was in a relationship with a particular individual. Onda, this man that she was in a relationship with which she felt to disclose herself on which he played down on, happened to be a shed. You want offend up, Andi. There was significant failures in this case by the local authority. There were failures in that despite the guardian throughout the proceedings, making it very clear that Ah, this man who mother was associating with was a shed you want offender who had violent related and sexual sexually sexual related offenses against him on polls. Davis to Children on all sort of mother Andi. He was in the family home on day. He the local, thought he had failed to assess the impact he had thio risk that he posed his mother and the Children. Also, the fact that the local authority wasn't insisting on working agreements been putting in place, limiting the involvement that the mother had with him on ensuring that she was not associating with this man. So they were continuous failures by the local authority, The Guardian said on Day for the Guardian raised these issues not just with senior management but also the independent reviewing officer. On one of the significant concerns in this case was the fact that the child's father suddenly had not been informed off the involvement, Uh, on the going into the family home on having a relationship with mother off this shadow on offender on it was not only a breakdown in understanding of the fundamental principles of child protection, it was felt, His lordship said, that this was active discrimination towards the father by not keeping him informed as to the fact that he's trying. Children were so the at risk here. The mother had failed. It felt, because she hadn't been honest with the local thought she had played down the environment that she had had with this man on. Therefore, when it came to decisions that need to be made, His lordship said that the decisions was such that the options were very limited. One possibility was that the 12 year old should move into his father's flat, which was comfortable but too small for both in one long term basis. And the 14 year old would remain in residential care in his present unit at his present school. So that was one option, it was felt. But the other option he was felt was this that the mother should in fact, leave the family home altogether and instead allowed father to move into the family home and to live there with a 12 year old on then to facilitate weekend and holiday visits by the 14 year old who was in the residential placement on on this arrangement, the mother would also be able to visit with the father, monitoring her contact Now. That was both what the Guardian and the local authority preferred on, in fact, on the facts, given the potential risk that mother what a risk that mother continue to pose to these two Children. Given the fact that she had felt to be open and honest, Aziz to have involvement with the Schedule one offender, given that there were no concerns in so far as the fires ability to meet the child's needs, and in fact he would be a safe guarding and a protective factor On balance, the judge was out of you that the judge would effectively endorsed a change off residents. And that's effectively what happened. Even though this'll was a public law case effectively, the judge endorsed that sort of, in fact, the child. The father then moved into the family home, which had been specially adapted to meet the specific needs of the 14 year old anyway, so the father would move in into the house and the mother would move out on. The father would live there with a 12 year old and also with the weekend and holiday visits by the 14 year old. Okay, so it's a very, very useful case and one day for to look at to see how that works, right? What I'm now going to be looking at is the position with special guardians and also joined us. So if somebody is seeking to become a special guardian, should they be joined US parties? So should a connected person be joined as a party if they're seeking to become a special guard and also the use of section 91 14 directions in care proceedings. So this was a case of C. D. Onda. This was a case handed down on the eighth of April 28 2020 100. Didn't judgment and dump I, Lord Justice Morland, sitting in the court of appeal on this was a case involving a 10 year old court had made a care order on an order under section 91 14 of the act mother appealed on. It was both a garden on the local authority. He appealed. So you opposed the appeal, as did the Father. By were background. This was a case where the local thought he had launched cape ceilings that care plan was for the child to live with foster carers or in the residential placement mother have a sort removed return on. In the alternative, she put forward her own sister, the maternal, and to become a special guardian for the child on the court had directed assessments of the art. It was the viability assessment. Then, in due course, there was a subsequent special gunship assessment, and she was also later assessors of foster care. Now the judge had, in fact, refused the mother's application for the art to be joined as a party, even though she was wanted to be assessed and, in fact, was being assessed as a potential special guardian on what happened was this viability assessment was undertaken off. The aren't that was positive, and that then led to a more full of assessment being undertaken on that was undertaken. It was a comprehensive assessment, and it concludes that the concerns outweigh the benefits on the placement. Would be aunt would be on a unlikely to provide the child with stability. So even though the assessment had been done, it was negative. As you know, that doesn't stop the judge, of course, from still making the SD order because in deciding whether to make the order in the sexual 14 of the Children Act, the court has to be in receipt of the report which they were here on, uh, on the facts. The judge weighed up the realistic options and the judge decided to make a care order. Now that the judge was and we see to the SG report, the judge decided to make a care order in for the child to be placed in foster care. But this care order was made before the decision was taken by the local authority as to whether the anti could be approved as a foster care or not. So the judge made a final care order and implicit within this was a conclusion that it was not necessary, therefore, to await the determination of the answer assessment as a foster care on Gus. Thinking behind that is because the trial judge felt that there was sufficient clarity as to have the chance needs. Bean met under the your species off a care order. So it was felt that it wasn't necessary to await the outcome off the fostering assessment and then going to fostering panel on any recommendation and approval thereafter. There was also a Section 91 14 order made. This was supported by the Guardian on it was found that this was needed as a child needed to have some stability following the chaotic life experiences on board. It was felt that this was necessary, particularly should the charge remain in foster case on the facts, it was felt that this was necessary. The mother had a history of failing to cooperate professionals on. It was likely that she would continue on prognosis for her doing. Therapeutic work was poor. She didn't accept the care plans and accept the contact plans and accept the chance placement in foster care. She regularly undermined boundaries. It was felt on. She wouldn't cooperate, would be looked after process or with all those factors put together, it's felt that the 91 or 14 order was necessary. On what happened is once the cable was made on a chart was then to be in foster care. Following the conclusion of the proceedings, the assessment of the ant as a foster care was completed and in fact it was also negative. On the final A Medicare plan set at the proposed for the chart to live with the previously identified Foster Care. So the issue of legal representation for the aunt was raised. Andi, uh, his lordship did notice that it was argued at the trial Judge should have taken steps to ensure that the aunt had access to advice and that she was represented by not having legal representation. It was felt that there was no voice on her behalf being put to the court in the circumstances on that. This is where, in fact, linked in with that the mother was arguing that Beyonce should have, in fact, been joined as a party to proceedings particularly bearing in mind that she was putting herself forward as a potential special guardian for the child. But a paragraph 60 his Lordships. And although the judge did refer the on two requiring representation were an application was made for her to be joined at a later hearing, she rejected it. Andi. Uh, by then, uh, she had decided that making a special guard support in favor of the aunt was not a viable option. So His Lordship's viewers that the courts clear responsible have been to decline even to invite the court to make the and to make an application on to refuse to join. There was a party on the fax. There was no justification. It was felt for the aren't to be joined as a party she had no she had made no application. The evidence gave insufficient support for special guards reportedly made in her favor on. Therefore, the decision by the court wasn't in any way undermined by the absence off. The aren't being a party on the final order was made part of completion of the answer assessments of Foster came. Did that undermine the order in the court? Said no because there wasn't no uncertainty that K order with a plan for Foster case we made that was in the child's best interests. So therefore there was no uncertainty there. The permanence provisions were met. This was not a case where that information was being was outstanding. So the judge didn't need to await the outcome of the assessment of the aunt in that regard. Some of the other things that this case highlights is the judge does not need to refer expressly to each other factors under the welfare check list. Um, it's evidence that as long as the factors are considered, one doesn't have to set the mad point by point as long as the welfare check list, of course, is considered. And the judgment makes that clear on here on the facts, the option off the child living with the art to pursuit a special grand supporter was comprehensively considered. A judge did consider that now linked in with this. It's also worthy of note that there has been recent in June 2019, the report put together chaired by Mr Justice Key. And this is the recommendations to achieve best practice in the Child protection and family justice systems, especially gunship orders reports. This is the report, which proposes some potential change to not just practice stretching toe are vain relation to the P l O, but also in relation to the position with the way in which special Garden supporters are dealt with on one of the issues in this which is raised is that when there is the possibility of a special grant supporter being made, then the possibility of joinder does need to be considered Now, of course, here on the facts of this case that we've just looked at. It's not that the judge didn't consider the issue of joinder the judge did. In this case of 400 under fax, it was felt that it would not have been appropriate bearing in mind the fact that s G report had been obtained and it was negative in any event. So you can see the elements of this Do you actually feature in that case in that regard, this other case of T against Darby Council is very useful. Case A, B and X. This was a 2020 decision. It was a quarter appeal decision on the seventh of April this year, and what this signifies is, sadly, there were deficiencies in the way in which the A B E process, the achievement best evidence process was carried out. The father appealed, following the findings of fact that were made against him at the court made findings of sexual and other abuse committed upon the Children. But what this case highlights is there were a number off deficiencies raised with the A B interview. Uh, for example, a length of interviews was longer than what it should have been done. There were a number of interventions by intermediary about the duration of the interview. The child said more than once during the questioning that she was hungry and wanted something to eat. And the judge recognize that the child may have therefore said the things that she did just simply to bring the questions, the questioning to an end. So there were a number of issues raised us to the as to the benefits off the baby process. On his Lordship said that the allegation against the father of encouragement of a child to engage in intercourse could not be sustained. The allegation was never repeated, featuring anything the child setting either interview nor satisfactory evidence. It all off that okay in relation to the allegation of digital penetration, the evidence had unsatisfactory features. Okay, do you evidence suggested that there was That evidence was given as a result of prompting eight days later in the second interview. Okay, so again you can see somebody issues there, and therefore the findings of abuse perpetrated by the father were on the fax set aside. Finally, I wanted to raise with you this other case of Ri s child in care unregistered placements This is in relation to the ongoing difficulties that local authorities having so far as securing a secure accommodation unit for Children who require to be placed in that unit for their protection or for the protection of others. On this particular case, involved a 15 year old who was subject to an interim care order. Andi uh she effectively was placed in a unit which was unregulated, unregistered and unregulated by off stead on. But this was sadly the feature across many cases a crossing the world's where Children will be placed on unregulated placement simply because of the shortage of secure accommodation units. Onda uh his lordship specifically referred to guidance that was put together jointly by the president's family division and off step back in November 2019 would say that judges must ensure that when authorizing your placement in an unregistered unit, steps are immediately taken by those operating a unit to apply for registration. If the unit, of course, requires it so that that placement can become regulated within the statutory scheme as soon as possible here on the facts, the judge did allow the order to be made. This was that this was a tall application that was made on Day four. This was made a deprived child off to be authorized to deprive a child of her liberty in the placement. In the circumstances on the judge emphasized that it would be in the child's best interest to be deprived of her liberty, for the purpose of transporting her to and from the placement to contact another necessary centers, and therefore that was permitted to be done on the fax. But his lordship did say that there needs to be awareness raised off the, uh, desperation off Children and young people in these circumstances, where sadly, there were very few secure accommodation units available on and thio impetuous system facilitate the ongoing needs off. Young people had Children in these circumstances. Yeah, okay, so that brings this session to an end. You can see over the last two hours decision on the previous one that we've done. I've spent a fair bit of time with you going through as much as I possibly can on some of the key drivers in that Children law over the course of the last year or so, so you can see a lots of change. Lots of development. Both case launched Statutory, uh, for both private on public law proceedings. Can I thank you very much indeed. For listening to hope. That's been a useful session for you on. I'll speak to you next time. Thanks very much indeed. Take care. Bye for now.
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