Hello. Welcome everybody very pleased to welcome you to today's session through Data Law. My name's softer Mahmoud Destiny's session two on the three hour course where I'm taking you through private and public Children to update For Autumn 2021. So as you know, I'm going through a number of elements with you on this course, bringing up to speed with some of the key developments in both private and public law cases. With some of the key developments, not just in 2020, but more. So some of the more recent Changes in 2021. And today I'm going to be going through with you some of the further developments as far as a public Children always concerned, somebody further case law in particular and also the position with, for example, applications using, for example, a family mediation voucher scheme, for example, we'll look at the child arrangements program. I'm going to be taking you through uh the development's insofar as coercive and controlling behavior, for example, insofar as that's concerned. And also some of the cases which we've had relating to specific issue applications also. So we'll be looking at in relation to matters surrounding uh do you see puberty blocking medication for example, I'll take you through some of those elements as always. Uh there's a lot of case law and statutory provisions they'll be referring to and therefore I have put the copyright technology here uh in relation to both the DFCS on all sort of crown copyright as corporate author. So what I want to start with then is this very useful case, but one really, which sums up the dilemmas that judges will often have in relation to Private law applications. This was the case of 2020 and it Dan by his honor, Judge Wild Blood Qc. And his honor set out that the court lists was being flooded really with interim private law hearings that simply did not require any form of court intervention. And this as his honor said was a wasteful resource, wasteful litigation resource. And what it also was doing of course was blocking up court lists that were already overfilled In that regard. And of course this was in 2020 where as you know, we had the onset of the covid pandemic has from the middle of March last year. And therefore this was an appropriate use of limited core resources and therefore don't tie in with the expectations under the overriding objective. And court was actually being expected to do a lot more micromanaging than they would ordinarily do and be expected to do. So these were for example, some of the things that his honor said had actually been made made their way to the court just in the previous month. So what junction of the M4 for example, your child be handed over for contact. That was one of the issues which parent should hold a child's passport, not where there was a risk that we may detain, but really because they couldn't agree to it and how should contact be arranged on sunday afternoon, for example, and his owner did say that really these types of matters should not be making their way to the court and the message that needs to be sent to parties and indeed their lawyers was, these types of matters should not be brought before the court unless they are genuine and differences should be kept away from the court in that regard, sanctions may well be imposed otherwise. And of course this is where I'm sure you'll agree. Many of us will look at alternative ways of resolving matters. No doubt many of us do. We make use of non core dispute resolution, collaborative law, arbitration mediation will explore those possibilities, but as I'm sure you'll agree with me sometimes, despite that some clients will sadly still not be in a position to be able to utilize uh the processes which are available there and they may not wish to avail themselves of that. That then brings me onto the practice direction 36 fee, which is the pilot scheme which has become available as of March, this year of, 26th of March of this year. Uh it's in place for a year and this relates to the family mediator mediation voucher scheme which has become available and essentially this is the family mediation voucher scheme which the Minister of Justice has been piloting now where essentially what it's doing is it's providing £500 worth of financial assistance towards the cost of attendance at mediation and the person would be eligible for this, as long as they fulfill some of these key requirements. First and foremost, they must have either attended in Miami the mediation information assessment meeting either because the requirement applies, I either applying for very relevant family application and they don't come within any of the exemptions as in order, domestic violence or the child abuse exemptions are set up by the civil legal aid, a minimum regulations or the quarters directed that they attend a my um so it's got to be one or the other and also like I said, it's got to be relating to then a private Children or case or a a financial remedy case. And the purpose of this scheme Is to then really offer this financial contribution of £500 towards the mediation costs. But the aim and the aim of this is two fold really one to ensure that people can obviously utilize it. And also to deal with the the court backlogs. So the parties concerned must be parties to proceedings of perspective proceedings in relation to private Children or financial remedy as I mentioned. And the purpose of this then, is to really first and foremost provide this scheme to try and reduce the backlog in family proceedings, which has of course been exasperated by the coronavirus pandemic. So that's the first purpose of this. And secondly, to provide an evidence based around the effective use of mediation, so as to encourage, by providing this financial incentive to encourage disputes to be resolved through mediation rather than through the courts. So you can see the thinking behind this and why therefore it's of a novel and necessary initiative and one that already has been taken up and been used of the course Of the last four or 5 months and so forth. That then brings me on to the other initiatives. Many of you will be aware that last june we had diminished of justice reported the harm report I was made available, which has really formed the knob of the changes this year, as far as the position with coercive controlling behavior cases that the use of school schedules and going forward and linked with that. We've also got the other private family law dispute initiatives in particular. There is the proposed revision to the child arrangements program to cap practice direction 12 B And there was a report that was made available last year as of 12 March 2020, which was the report entitled the Time for Change. The need for change the case for change. So it's got a really interesting title to it. This was headed up by mr justice cub on behalf of the private law working group, hasn't March last year and there are a number of significant initiatives within this report, so that first and foremost, there is the proposal of the proposed track system. So just like we have in financial remedy cases, for example, where we've got the fast track, we've got the standard track. The aim is to bring a similar track system in Children or cases. So it may be the case that for example, once distract system is in place, there will be pilots no doubt to try. This is if for example, I'm acting for father and he has got a child arrangements order specifying spending time with otherwise having contact, which he's claiming that the other parent is now Not complying with and were therefore going for enforcement by way of a former C- 79 for the various provisions under section 11 of the Children Act. Then that's where potentially older thoughts on floor that would maybe go onto the fast track. So that will get us soon as we are hearing had sooner we'll get hopefully judicial continuity in that regard. We've got we'll get hopefully earlier resolution in those types of matters. So by having distract system, the aim is to again make sure that we can fully and appropriately explore uh various ways in which within which to resolve these matters going forward. And also the aim is to revisit Practice Direction 12 J. As I mentioned in the previous session, you'll be aware of that As a result of the domestic abuse Act of 2021 practice direction 12 J has already been amended By incorporating the new paragraph two way and to be that I mentioned in particular previously said it was already been changed to that in any event. And also the cap is proposing the use more use of pilots with a view to than affecting change. And also like say the use of the track system. And there is also a suggestion of more review hearings so that rather than these step towards where the court may make an order for say uh in direct contact with you and then after about three months or stepping that up to maybe supervised, we should be having a review hearing to see how that's progress with a view to moving on to the next stage in terms of the road map, so to speak and and facilitating that. So therefore you're you find that there will be more uh need and provisions for remote so forth review hearings insofar as that's concerned. And also in relation to the federal hearings, the first hearing dispute resolution appointment listings. one of the other initiatives within this program is that the aim is to limit the number for hydro hearings uh in in any one days to make sure that all parties lawyers, sarcophagus officers and otherwise have sufficient time of course to be able to deal with those uh going forward uh and making sure that there is sufficient time to handle and deal with those and also a young person's day so that for example if the federal hearing is listed for Sadie afternoon, then there will be the opportunity for the judge to then meet with the child in the morning for example, to speech the child to deal with The position that we all know in so far as the judge meeting the child guidance and as you know, that's the guidance as of April 2010 for example. So we may see more of that and also there's a recommendation for there to be a great use of online forms so that for example 2 C7 for example, the acknowledgement that we're getting Children proceedings will potentially be replaced with A new form knowledge of form C1 on one, for example, which will be a more a labra tiv and detailed form to enable parties to set out more detail as to the response to the substantive application that has been lodged. So like a number of initiatives and therefore no doubt there will be updated information on all of these going forward. Now that then brings me on to uh the position with puberty blocking drugs that would in some situations be available for Children. And the question question Being as to whether a child under 16 can in fact consent to puberty blocking drugs. This was an issue which was raised in december last year uh in the high court decision and has recently made its way to the court of appeal last month. So let's have a look at this to see where we are with the jurisprudence and and judicial thinking on these matters. So this was the case of Bell and Tavistock and this particular case and like so it was handed down back in 2020 and one of the issues in this case was very Trying to address that issue as to whether the Children under 16 can in fact consent to these forms of this form of drugs. And it was a judicial review application. It was acclaimed for JR after practice of the defendant Tavistock in Portman NHS Foundation Trust through its Gender Identity Development Service that gets as it's referred to And also the 1st and 2nd intravenous trusts whereby there was the prescribing of these puberty suppressing drugs to people under the age of 18 who experienced gender dysphoria and gender dysphoria is a core defined. It was the condition where people would experience distress because of the mismatch between their perceived identity and their sex at birth. And such persons would have a strong desire than to live according to their perceived identity rather than their NATO or birth sex. And the court is very concerned as to whether the administration of he's gonna drop in releasing hormone Agnes as they're referred to, which our hormonal puberty blocking drugs. PBS as that referred to, to suppress the physical developments that otherwise would occur during puberty and that was really the concern. So if a child is really taking these puberty blocking drugs, the court was concerned us to the effect that would have been in terms of particular decide effects and in that regard and therefore whether it was appropriate to permit this and also whether or not they should wait in particular guidance in that. And the claimant's case was that the Children and young persons under 18 were not competent to give consent to the administration of these puberty blocking drugs. So that was the argument that the claimant's argument against while a judicial review was being brought in that regard. Also, it was said that information that was given to persons under 18 by the defendants was misleading and insufficient to ensure that the Children, young person able to give informed consent. There was the whole issue about Gillick in that regard and that they could not give a informal concerned because they were not giving sufficient information to then be able to make the informed decision. And also the absence of procedural safeguards and inadequate information provided resulted in therefore there being an infringement of the article eight Rights Insofar as the European Convention on Human rights. So, because their right to privacy and family life was not respected. So, therefore, that was also being raised as an issue as well. So, you can see a number of matters were being raised in that regard. And what about parental consent? Well, the court did say that if a child cannot give concern for treatment because they were not Gillick competent. We are not Gillick of course. And the normal position is you then turn to parents with parental responsibility. So could they consent? But here on the facts of this case, it wasn't felt necessary to then really draw deeper into that because it was said that it was unnecessary for the court to consider where the parents could consent to treatment for, a child could not lawfully concerned because this wasn't the policy of practice of the defendant and therefore it wasn't really necessary on the facts of this particular case. And the court did say ultimately, the court did say that there were in numerous, enormous difficulties in Children under 16 understanding and weighing up this very complex information and weighing up this information in deciding whether to in fact consent to the use of puberty blocking medication in this regard. And the court said it was unlikely, highly unlikely. That's hard age 30 no wonder would be competent to give consent. Administration of puberty blockers, That's Children age 13 or under. And also of course that it was doubtful that a child 14 or 15 could understand and weigh up the long term risks and consequences of the administration of puberty blockers. So you can See the court was saying, and therefore, just going back to the position with 13 year old sort of court here, as you can say, as you can see was saying that it's very unlikely that a child aged said No older would be competent to consent. So that was the position with Children 13 and under and In relation to a child who was 14 or 15. The court did say that it was doubtful whether a child 14 or 15 could understand the way up the long term risks. So that's a position of the 14 and 15 year olds. Well, what about Children who were a 16 and over. And here the court did say that legal position was that there is a presumption that they have the ability to consent to medical treatment and therefore I'm balanced of course said that given the long term consequence of the clinical interventions issue and given a treatment, it was still very much innovative it and experimental. The court recognized that clinicians may regard these as cases where the authorization should be sword before they then provide the treatment. So that was the position taken by the quart. At that stage. There was another case that was decided earlier this year, A B and C. D. And others. This was a case and down by mr. Justice living, sitting in the family division of the High Court back in March this year. And the question here that was raised was whether a parent can in fact consent to their child under 16 having puberty blocking drugs, even though that wasn't an issue that was raised in the Bell and Tavistock case. It was an issue with that became an issue in this particular case. So this was an application this tyrant by the mother of the child, in fact for a declaration that both she and the father of the child in law, she claimed had the uh entitlement and the responsibility to be able to consent on behalf of child to the administration of hormone treatment to suppress puberty. I either puberty blockers, the PBS So her argument, the mom's argument was that as a holder of parental responsibility And of course, so far that they can consent to their child under 16 having deep uh these uh puberty suppressing public medication. And this was in light of the decision in the Ballon Tavistock decision. The issues were of course very different to the to the Bell case because this was different from Bell because in the Bell case, of course, the question of whether parents could consent or not was not considered in that judgment because it wasn't the policy of the of the defendants. And therefore it wasn't an issue that arose on in the Bell case and her ladyship did say that parents will generally know what's best in many cases for their Children. Her leadership took the view that parents will in the first majority of cases be the ones who know what's best for their Children are best placed to make decisions for them. Judges do not necessarily know what's best and judges should not really be displacing that decision which really should be left to committed and loving parents in those circumstances. Having said that, of course, there will be cases where sometimes the court does need to act in a rather independent way and make decisions in that regard. But generally speaking in such cases, it will be very much on a limited basis on that regard. And there was like said, that difference between this case and the Bell case, because in bel parents, we're in a position to understand why up those matters. And really here in the Bell case, it wasn't being asked as to whether or not the parents can consent. It was more whether the child could consent under 16 and her ladyship did say that adults with full capacity would know what's best for their child in most cases. And the evidence suggested that child's parents had fully considered these matters and came to an informed decisions. So they form that balance in most cases, they could consent on behalf of their child. But this matter now has come together in the further court appeal decision, because the balance Haverstock decision was in fact appeal to Court of appeal and judgment is handed Down just recently. In fact, on 17 September of this year by the Court of Appeal. And this was a judgment to which all the judges had jointly contributed. So, what's the position now, and in fact, the court appeal took a very different view to the High Court decision on this And in particular, paragraph 12, if you have a chance to look at that, his lordship said that the Torah Stock had appealed against the declarations made and argued that the Divisional Court is wrong in law. There were eight of specific grounds of appeal Grandes one and 2 and eight are perhaps I would suggest the key ones that I wanted to focus on for the purposes of this talk and grounds. one and 2 were that it was being argued that the Divisional court had in fact misapplied the law in Gaelic as it is known. and Grand eight, it was argued was that the approach that the court took discriminated against Children with gender Dysphoria, which could not be justified and therefore breached article 14 of the european convention in terms of Children in that category, therefore being discriminated and therefore putting this together. one of the things that the Court of appeal highlighted was this, they really looked at the thinking behind Gillick and review of the principles in Gaelic and of course, many of you will be aware that that case involved a child Under 16 who wanted to have contraception given to her because she wanted to have Uh intercourse with her boyfriend. And the issue is whether or not in those circumstances a child under 16 was capable of consenting to treatment. 20 form of contraception and therefore to go to the GP and how dis prescribed without the consent of the parents and the claim did fail at the first instance to say that the child was incapable of consenting treatment or validly crying, a doctor not to seek the consent of parents. But that guidance was later found. But it has laws as it was then are in a majority to be contrary to law, in that any doctor who treated a girl under 16 without the consent of parents or guardian of an emergency would be infringing depot and two rights. And it was felt that the guidance that was given, which was that a child under 16 was incapable of consent dream finally requiring a doctor not to seek the consent was Wrong in Law. And in fact a child under 16 who was competent could then consent to their or medical intervention or treatment. And without the consent of a parent or legal guardian other than of course an emergency. And by not allowing that they would be infringing dear Charles right to autonomy. So that was the decision as you know him, Gillick. Lord fraser, Lord's comin Lord Bridge and handed down the judgment and what you found was Lord there were of course descending judgments there as well. But he called did allow uh the the appeal and the issue therefore, before the court of appeal here in the toughest case was whether therefore the divisional court was correct in saying that Children under 16 and persons between 16 or 18 could upon the proper interpretation of Gillick consent to embarking on a course of puberty blockers. So, really, the issue wasn't so much Whether uh it is possible for Children under 16 to do. So, the question really was uh was whether the divisional court not having held that Tavistock and trust policies and practice one lawful were right to give the declaration and the guidance study did. In terms of where it was highly unlikely that child under 13 good consent. That was I'm probably about Children Up to 16 court in those circumstances. So, uh to consent because this this this really go against the notion of Gillick And that paragraph 60 six. The court did say that in making this declaration, the divisional court had actually departed from Gillick which had of course Established that Children under 16 could make their own decisions have assessed individually is confidently so and the ratio of Gaelic was very clear that it was for the doctors And not for the judges to decide on the capacity of a person under 16 to consent to medical treatment. It's not for the judge to decide whether A child under 13. It was highly improbable that they could or could not, for example, or it was unlikely that a child up to 16 could that is really something that the judge, sorry, the doctors or I was prescribing the medication otherwise would be making a decision just like many of us as you know, would be doing when we're looking to assess a child's competence to see if they can instruct me as a lawyer separately, for example, so you're looking at that and therefore that's a decision that the lawyer would be making. But of course we can still go to court for guidance on that if necessary in that regard. But ultimately, it's a decision that the person who's making that assessment will then be deciding on. And the court did say that nothing about the nature of implications of the treatment or the people politically blocked and allowed for a real distinction was made between the consideration of contraception, Gillick and puberty blockers in this Area. Bearing in mind that of course, when Gillick was decided some 35 years ago, the issues it raised in relation to contraception were highly controversial just like day uh the position with puberty blockers is of course a controversial aspect, but that doesn't in itself mean that we should go against the principles in Gaelic. So, the Court of appeal did take the view that the divisional court in giving the declaration should not have done so, and it went against the principle of Gillick in that regard. And therefore it was decided that it was inappropriate for the quarter of given that kind is concerning application needs to be appropriately, these cases. And instead the decision should very much rely upon an assessment as to whether or not the child was competent not to be able to make that decision themselves. The court did say of course, that it would mean that it doesn't mean that an application would not be appropriate. That of course, could be situations where there are disputes between two more clinicians, for example, between patients between parents, where there may well be a need than for an application. For example, specific issue applications where there is a dispute between clinicians as to whether the child is or is not competent to be able to consent to this. But the court did emphasis that the clinicians are the subject of professional regulation and oversight. Of course they will be needed to make. This decision is very carefully going forward. Yeah. Now, for the next part of today, what I wanted to discuss with you then is some of the developments which we've had surrounding the issue of analysis, coercive and controlling behavior. And as you know, this has been a very huge area this year because of the developments surrounding not only the domestic abuse Act of 2021, but also given the expanding uh considerations. Finally, use of scott schedules in particular and also the positions finding similar fact evidence. So, this was put together as a significant issue in the case of f and M you'll be aware of this was the decision by Mr Justice Hayden back in january this year, a case of vermin and this was a case which also looked at the issue of similar fact evidence And the case itself was one whereby The father here had been in two separate relationships with the one lady who had a relationship with that he later married and had a child with. He was subjecting her to quite considerable forms of parent of um controlling and coercive behavior, for example, regulating who she communicated with how often she spoke to her parents and when her parents did telephone a, he was always on the phone with them on loudspeaker, he wouldn't let his wife really have conversations with them alone. He would limit her uh communication with with other people, He would limit how much money he would give her to enable her to meet basic needs. And in that regard, he would, he also encouraged or discouraged her from continue to study at the university, for example, he then formed a relationship with another lady and very much did the same day and discouraged him from continuing to work and therefore she became entirely dependent emotionally, psychologically and financially upon him. And some of the concerns that the court raised here was that this was a man who was determined to alienate these women separately from their family and friends that he controlled the food they had, the money they had and really their involvement with with the outside world was gradually and significantly reduced. And his lordship did say that in these types of cases, there is a need to show a pattern of behavior. It's very important to be able to demonstrate that. And it can be very difficult for professionals, including lawyers of course. Then in that regard to identify this type of abuse and therefore one of the issues that his lordship did emphasis in this case is that focusing on. But specific instance may in fact be counterproductive. And that's one of the issues as you can imagine in this case. Because for so long now since the practice direction 12 J first came out In 2008, we've all become climate ties into almost putting allegations of abuse. Mhm. In an almost these um compartments whereby judges will sometimes say to us that we want you to limit the allegations to two or 32 or two or three of the key ones for example. And the problem with that is by doing that. Uh You could then be not putting into your scott schedule, the history of pattern of behavior, which means that it will be difficult and to look at the extent of the relationship and the level of abuse in terms of controlling and coercive behavior. So you get nothing like the type of evidence which is necessary to demonstrate that type of behavior. And this is where this was identified previously. In fact last year in the Minister of Justice. Report. The harm report as many of you will know it which is the assessing risk of harm Children, parents in private law cases. And his lordship said that he considered that scott schedules therefore have severe limitations in this regard because of cases involving controlling and coercive behavior in particular. But his lordship quite rightly said that this wasn't a matter that he could really comment on much further beyond that, because it was something that needed to be raised and considered by more senior judiciary, particularly by the President of Family Division and also by the Family Procedure Committee. And that's in fact uh what's been happened because just a few months thereafter, we had the decision in HN and others which was handed down uh body quarter appeal in this case itself involved one where there were four cases all involving domestic abuse which had been listed for finding a fact hearing. And the court took the opportunity to gave us some very necessary guidance in relation to running of these types of cases. And some of the things that this uh judgment looks at his, for example, the role That practice direction 12 J. plays in these proceedings which obviously is very pivotal. It has some 40 paragraphs which help us to understand how we run these types of matters. As I mentioned in the previous session practice section 12 J has also been amended as a result of the domestic abuse act of 2021. But also uh we need to understand that when we're dealing with finding a factor is in private law, we have to be very careful about using criminal law concepts when we're referring to rape, for example, then of course that has very different connotations in the criminal context, as what we may be thinking, the family law context. So we have to be very careful about how we use some of the criminal or concepts. And also there is of course a place for finding of fact hearings. There is a place for scott schedules in appropriate cases. But as Mr Justice Hayden pointed out in the F N. M. Case, there are limitations with that because we may by having to put together a specific instance into a schedule. It may then prevent us from being able to get the full extent and the breath of the nature of the relationship and therefore the Quarter Bill did say that we need to really ask ourselves as to whether there's any other ways of dealing with being able to get the nature of the relationship together. Should we for example, be having a threshold type document used similar to what we do in public law proceedings. Should we have formal pleadings, for example, by a way of particulars of claim. Should we be having a narrative statement, for example, and in fact the Court of Appeal talk to view that for now until such time as the family procedure committee has considered this and looked at this in more detail for now, what we should be doing is we should be inviting our clients to them put together a narrative statement which then enables them to set out the nature of the relationship and there is a need in appropriate cases then to move away from the use of scott's schedules in every case. And with that in mind, the idea was that for now it was suggested that parents, when we are looking to list a matter for finding a fact hearing for now, it was suggested that every case for domestic abuse is alleged. Both parents should be asked to describe in short terms whether it's in a written format in a statement or earlier to hearing the overall experience of being in a relationship with each other. So therefore that's something that we should be inviting. And as many of you will notice is what we're doing in many uh Children cases. Now we're by Dodges will often be directing not just a scott schedule, but also a narrative statement and help the court in deciding how then to go ahead and deal with those matters going forward in so far as at any grand was hearing and any finding a factory and tied in with that. It's been a very useful case following on from the hatred in case. This was the case of A & b. p. and this was one case in which actually looked at the positions surrounding finding a fact, hearings were allegations of domestic abuse where specifically been raised, this is one whereby the court had made a direction for both the mother and the father too far less scott schedule, but to limit it to five allegations in that regard. So that was the thinking behind this. And at the hearing, the mother raised a number of preliminary points relating the father. Mother raised a number of preliminary points related to mother's evidence. And in particular, even though both he and mother had done a scott schedule and they had put five instance in their of abuse, uh the father said that in mother's statement, she had also given added on more details and examples of the abuse she alleged that the father had inflicted on her and the Children. And uh and in particular, he said that she had gone way above what the Scots had joe had been lad for in those circumstances. And when the matter then came before the recorded a recorder, uh took the view applying part 22 of the family procedures. The recorder decided to exclude a lot of that evidence on the basis that it went above the Scots schedule. And it wasn't necessarily on the facts and the court should actually be limiting the determination to those matters in the scott schedule. But mother did in fact then raised the comments in HN and the fact that parties should be allowed to have a notice statement which then forms the basis of their relationship and therefore so many allegations that she was raising were part and parcel of expanding on the nature of the allegations that she had put in a scott Churchill and therefore in balance court to talk to view that it was only it was only right proper and appropriate to enable that evidence to be admitted it was relevant to in these circumstances. So they were highly significant and therefore those particular elements relate relied upon in her statement would then be taken to account. So both the father and the mother were then directed to file more detailed narrative statements going forward, uh setting out their positions so that the judge denied the case. Management state would then decide which ones of those that would be tried going forward are defining a factory. So it's very very useful decision to look at in more detail. And you can see therefore that the thinking behind that is crucial. Now that enticing with this other judgment in the case of a B and C. D. Of 2021 which really emphasizes the Need and the importance of careful analysis as to credibility. This is one a case whereby the father had in fact peeled against findings, made a defining a fact hearing that he had aggressively raped they responded mother while she was in bed with the young child's obviously can see some very, very serious allegations that were being raised and their findings of emotional abuse and threats to remove the child from her mother's care to abduct to Pakistan. Now on appeal, the court did in fact allowed the appeal. The trial judge, it was found had insufficiently explained how she had conducted her assessment of credibility and therefore there wasn't a sufficient level of weighing in the balance when reaching these conclusions. So therefore this case emphasizes the need for careful analysis when it comes to looking at credibility. And the court had decided on a case where one party is alleging that allegations have been fabricated as part of course of conduct to effectively marginalized the parent from the life of the child. It's incumbent upon the court in those circumstances to explain why they have rejected that and hear that hadn't done the judge hadn't carried out or demonstrate sufficiently demonstrated why the judge has come to a decision that they had decide that those allegations would not be accepted. Okay, So, given sufficient regard to each piece of evidence in those regards. So, those findings wave fact set aside Now, as I mentioned earlier, we've got the position with the Domestic abuse act and this act is part of the act is already in place. Uh Got roller sent back on 29 April this year, 20 21. And number of elements of the actor already in place. And I mentioned in the first session the changes that this has had in so far as The new definition of domestic abuse in section one that I mentioned, and also the effect of changes to practice direction 12 J. For example, some of the other provisions in relation to domestic abuse act which are going to be relevant in Children proceedings is that there is this new provision for b to the matrimonial and Family Proceedings Act of 19 80 for uh this particular provision is not yet in place, but when it is it will obviously make a significant enrolled to what is absolutely necessary. And this will relate to the issues running prohibition of cross examination in various situations. So effectively what this will provide for is when you've got situations where say there is a finding of fact hearing that's listed and say the father for example is a litigant in person and he wishes to cross examine the mother for example who is the alleged victim then at the moment if it is not eligible for public funding which you may not be the quarter and having to use other initiatives to enable the evidence to be tested. Some judges will allow require father to handle these questions which the judge will then scrutinize and decide what questions were put to mother. It may be questions are put to the mother by the judge or by some other person, by the legal advisor for example, or that father maybe of stoop on limited basis and the difficulties the father doesn't have a right to an advocate in those circumstances paid for in most cases by the legal aid agency. But of course by then cross examining mother directly, it will mean that there is uh the fact that he's really cross examining gardening exactly the same issues that she she has lodged a complaint against him in terms of abuse and that therefore could be a lot more distressing for mother in being able to be cross examined by the very person who she alleges has been abusive to her in the first instance. So what this new law provides for like say it's not in as yet, but when it is, it will prohibit cross examination in many cases where somebody has is a victim of various offenses against, is a victim of offenses perpetrators and by the other person or if they are protected by an injunction, unnoticed injunction or if there's evidence of domestic abuse or the judge is satisfied that if the alleged perpetrator was to cross examine it would affect the quality of the evidence that would be given and potentially cause that person a significant distress and therefore to enable a right to a fair trial. The alternatives to cross examination would be that the court is now going to be in a position to be able to permit on alternative way of allowing that evidence to be tested. And the way that is, is the court will now be able to allow an advocate to be appointed, paid for Margaret court service to enable that cross examination to be done rather than the person themselves doing it or otherwise. So can you can see this is a very, very significant initiative that has become necessary and which will then accordingly be implemented going forward. Now, linked in with that then I wanted to also finish off today by looking at the position with cases relating to removal from the jurisdiction. So this is the case of H and R. This case handed down recently, 29, July of this year in the high court by Mr Justice Mcdonald. And this case was one involving a 12 year old. It looks at the issue of jurisdiction and the question here was that the court had was, was this child habitually resident in the jurisdiction of England Wales, because if the child was habitually resident here, then the next question is, should the court make an order at English court make an order under the same jurisdiction requiring this child and to be returned to jurisdiction of England Wales from the jurisdiction of Pakistan with a child currently was. And the reason for this is because the mother who was living here in England saw for the child's return was the father wanted a child of remaining scott in Pakistan where the child was studying was living there and the father said that the child was happy that I wanted to continue to live there and the mother said that the child was in fact habitually resident in England Wales and their foot english and welsh courts would have jurisdiction, the father have a like say, said that the child had in fact been in Pakistan, gone a year previously for the purpose of completing his secondary education. And the father argued that the child was now in fact habitually resident in Pakistan, and they found that bassist english courts lacked jurisdiction to be able to make any orders in relation to a child. And even if the court did have jurisdiction based on habitual residence, the father said that it wasn't in the child's best interest for a return order to be made. So that was really the essence of this argument. There were separate proceedings in relation to the younger siblings, and the father said that the parents had had a discussion regarding the child's education and it was agreed that it would be beneficial for the child to remain in Pakistan to pursue the education was the mother said that the father had actually coerced and manipulated the mother into leaving Pakistan earlier without the child, and the court did have the benefit of a Kafka's family. Court adviser detailing interviews of the child, who was very clear in his views that he wanted to stay in Pakistan and he didn't wish to return. Now, the court then looked at a law in this area and effectively, I looked at the position surrounding Brexit, of course, because, as you know, having had left Europe back in December 2020, the question was whether or not we could still continue to use brussels to advise Now, as you know, busses to revise B. I. R. The council regulation of course, doesn't apply To new cases issued us from one January 2020 one, but the concept of habitual residence continues, of course, that hasn't changed. And even though one of the lawyers suggested test for habitual residents, a change following our departure from europe, that in fact wasn't pursued and in fact, that's not the case, there is nothing to suggest that the test for habitual residence has changed since our departure from europe. And in fact, the court did say that the law is still has what it was previously in that one has to look at as the charter got a sufficient degree of integration into that country, social and family environment. So that test is still very much the same. And therefore it's a question of degree and in fact, that one has to then look at in these circumstances, the sort of question on the facts here was whether or not this child was habitually resident in England Wales or in Pakistan. And the court did say that in relation to a position with any return orders uh one had to then consider the case of the widest 2090 Decision where the supreme Court made it very clear that it is of course open for a person to apply for some return order and and having jurisdiction notwithstanding that it's capable of achieving the same outcome by way of a specific issue order under the Children Act. So the court here did say that they were satisfied that the child was in fact on the facts, habitually resident in Pakistan. Uh given he was living there, had been there for a year, he was doing, doing his studies there, he intended to live there long term. Uh you're sufficiently integrated there. And the court on the facts did not feel that this was a case where by the child was habitually resident in England. He was a child of Pakistani heritage. He had a large proportion of his extended family in Pakistan. He had spent a lot of time in Pakistan during the course of his childhood On holiday and also for other periods as well. He'd spent some 11 months in Pakistan attorney school there and all of these got went to or showing that he was sufficient integrated into the country's social and family environments on that basis. The court said that English and welsh courts did not have jurisdiction based on habitual residence. Therefore, they simply couldn't entertain the application that mother had made for return. So you can see it's a very, very important case which looks at the issue of jurisdiction and also the impact of of us departing from europe in that regard. Okay, so that then brings this session to an end. You can see we've covered a number of issues today then looking at also our private Children law. What we're going to be doing when we resume in the next session is I'm going to be taking you through some of the key developments in so far as public Children or case are concerned. There's been a lot of developments in that field of the course of the last year in particular. So I'll be going through some of that with you and pulling some of that together to assist. Thank you very much indeed for listening. Hope that's been a useful session for you. I'll speak to you very soon. Thank you very much indeed. Bye for now.
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