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Private and Public Children Law Update for Autumn 2022

Private and Public Children Law Update for Autumn 2022

Discussion and examination of important children law matters and updates throughout 2021 and 2022

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Description

This course will offer a practical discussion of various aspects of children law matters throughout 2021 and 2022.

It will cover both private and public children law updates, as well as matters relating to adoption, inherent jurisdiction and injunctions.

These 3 hours are essential for children practitioners seeking to refresh their knowledge of children law and practice and ensure they maintain structured courses for accreditations.

The course will involve both advising and representing clients involved in children related matters, and will cover an examination of the developing case law and statutory provisions in this area.

What you'll learn

Refresh your knowledge of children law and practice to provide you with the important updates and additional understanding needed to stay accredited.

Requirements

Watch the recorded webinars and review the supporting documentation.
This course provides 3 CPD points/hours

Who is the target audience?

Children Law Practitioners

Course Content

Recorded Webinars

Session 1

01:10:16

Recorded webinar presented by Safda Mahmood

Session 2.1

00:28:19

Hello and welcome everybody very pleased to welcome you to today's session through Data Law. My name's after Mahmoud. Now today then I'm going to be going through the second session with you in this three stage of course which is the private and public Children to update for autumn 2022. Now this session which is session two is split up into two parts each, approximately half an hour or so in length and this is session 2.1, Then you're gonna have session 2.2 thereafter and then finally there's gonna be session three. Okay, so as you know with this session, what I'm doing is going through with you in this course Somebody updates on providing you with some updates in 2021 but particularly updates during 2022 Insofar as matters and areas surrounding Children law proceedings, both private and public law cases. You'll recall that in the previous session, I spent some time going through with you some of the significant elements surrounding private Children law. So I went through aspects surrounding changes as a consequence of the domestic abuse sector 2021 when it comes to finding a fact hearings, for example, practice Direction 12 J a lot of the developments surrounding finding of fact hearing the case of K and K. For example, the guidance put together and handed down by the President of fifth of May this year. We also spent some time looking at participation directions and also the position with section 91 14 directions as well as some aspects surrounding parental orders as well. So this course it's relevant for those of you who may be representing Children, whether in private or public law proceedings, when you're representing parents, extended family members and also local authorities. So what I'm going to do then is continuing Continue with looking at somebody aspects of private Children or in this session will then be looking at starting public child care cases, will then continue with that in session 2.1 and thereafter in session three also. And I'm looking at the law as of October 2022. So what I want to start with today then is to uh bring to your attention to speech, which was handed down by the President of the Family division, sir, Andrew McFarlane back on the 28th of september this year. So it's relatively recent just a few weeks ago and highly relevant in terms of the way in which we run private Children or cases. So this speech really follows on from what I discussed with you Last time in so far as the position with the use of my arms. Uh and as many of you will know the requirements from my arms are obviously they have been in place for many years now from when the family procedure rules came in April 2011 and then re emphasized by the Children and Families Act of 2014, section 10 of that act. Some of you will remember and the President here was really identifying why is there a need for change. Why is the heavier emphasis now on mediation? And perhaps there has been either two and one of the things the President has said is there has been a huge substantial pressure upon the family courts to increase the volume of private law Children applications. So as you know, there's a lot more cases before the court than what we have had Covid. And obviously the the effects of it has then exasperated that and therefore there's a lot more cases, not just before the court, but in addition to that, as you know, uh the judiciary have doing their utmost to try and deal with the case loads. Obviously because of Covid, we've had to work more towards other alternative methods of working such as obviously remote working amongst others. So with that in mind, as you can see with the increase and limited resources, you can see why there's a need to really explore further alternative methods of resolving matters other than going through court. And the second indicates the President has said, is that which relates to the issue surrounding the case of K and K. Now you remember K and K are discussed with you last time in the previous session. And as you remember in that case, the father Decides to tick the box on the C- 100 to state that he was exempt from attaining the Maya on the basis that he lodged his application shortly before christmas and he wanted resolution uh really in the in the next week or so. And also he sought for the hearing to be heard without notice. And that's where there was criticism by the court appeal leveled towards the judiciary, that really the court should be exploring further, why do my um exemption may have been sought and whether it was a legitimate use of the exemptions and whether or not they should be really further consideration as to whether they should or should not be attending the Miami. So again, that was the second indicate that the President has mentioned here, and therefore this is really brought back into play whether or not mediation and my arms are being appropriately used as they were initially designed to be used. And one of the things the President has therefore highlighted is whether we should be looking at, in fact, even extending uh my arms to both parties. So, as you know, the current law as it stands. So if you look at uh it's part three of the family procedure is in terms of the Mayan requirements, as you know, it provides for the fact that if you are a proposed applicant, safer section eight application or financial remedy application, then the onus is on you unless you're exempt to attend to my um And even when you do attend, it might be that the mediator, once they go through the reasons and explore the reasons as to why Maya may be unsuitable. they may then provide the Mayan exemption, but the onus is on the applicant to attend the mayan. And then obviously the respondent may well turn up in hope that they will and participate. But the question the President has really highlighted here is whether we should actually be extending the mind requirements to both parties in that regard, and if so, whether or not that in itself may make a greater and more effective use of the mayan process in that regard. So that's that's one thing. The other thing which the President has highlighted is the use of the mediating vouchers. Now, as you know, this is something that was referred to in K and K. The President back in the views from the President's Chambers on the 12th of March this year, emphasized that the mediation vouchers have been available since March 2021 as of March this year there was a 77% success rate in cases where those people who had taken up the vouchers had been gone on and dealt with the matter through mediation, where there had been either partial or total success through mediation. So you can see obviously it does work and therefore the the evidence uh demonstrates that Now �500 towards the cost of mediation is obviously a substantial amount of money. And as you appreciate, given the current situation that we all find ourselves in with the economy with the energy crisis with obviously cost of living with the increase in interest rates, mortgage rates and the many budget and the consequences thereafter, as you can imagine these amounts towards the cost of mediation will assist clients massively and therefore why the President is wanting this to be utilized also going forward. And one of the other things the President has highlighted is whether we have now got to a stage where if there is to be any compulsion in terms of compulsive mediation, then should the compulsive event take the form of what's called an I am rather than my um and what the mediation, what the president is referring to is this mediation, as you know, my arms as you know, stand for mediation information and assessment meeting. So somebody's looking to attend or large an application for a private Children law order or a financial remedy application. And as we said to my requirements that come into play. But if they are looking to large either application and the President is suggesting whether they should be attending an I am. And that stands for the I stands for information, the A stands for attendance and the m stands for meeting. So basically its initial attendance at a meeting I. E. What the President is thinking of is that they should be required to attend an initial meeting with a generalist and this would effectively be a maybe another lawyer or some other specialists in the field who gives them some generic advice about the nature of the application they are looking to lodge. So if they're seeking an order for child arrangements, spend time with what it means, what the process is, what the legal applications of it are, how it works. The time scales really that one would look into and therefore that would help them to decide whether they do wish to go down the courtroom to whether they may wish to explore mediation perhaps and if so then the I am can then lead to them going on to mediation thereafter. So the President is really saying whether we should be going down this route and one was having a generalist who sees them in that regard and that may not necessarily be the person who then subsequently advises them going forward and deals with the proceedings if they are instigated. Okay, so these are some of the things that you may wish to consider and explore and think about further. Because of course these are things that the President has highlighted in this recent meeting at the family mediation uh conference. Now this other case of MacDougal and S. W. And others is worth noting it's a very useful case which is one which identifies Applications relating to child arrangements which the father had lodged, but also applications by the various mothers in this case who applied for change of surname of the Children and also for section 91 14. So as to require the father to seek permission before he re applies for any orders relating to amongst others, spend time with otherwise having a child live with him. And this was a case whereby the father had essentially provided, he's he was a sperm donor, which he had been providing through private arrangements and therefore not through a UK registered licensed clinic In a number of cases and he claimed that he was the father of a Pakistani 15 Children. And these three cases were all linked where he is the biological father, whereby he had acted as a splint on in the conception of the Children. Now with some of these cases, he, there had been informed that he had signed, the mothers had signed some which related to the fact that he would not be having contact or his involvement with the child would be very minimal. He reneged on that he later sought for spend time with orders. He sought for the Children to live with him. Uh there were concerns expressed expressed that he had been abusive. In one case, there was a section 37 direction that had been directed by the by the court so that the local authorities would investigate Child protection issues, which which is still ongoing. And in another case, the mother had applied for permission to change the child's surname so that that would lead to an improvement to that child's welfare so that other people would not associate that child with this particular man. And in another case there had been an application for 91-14 so that the father would require leave and therefore permission of the court should he re apply for any of these orders. Now, the nature of the risks that his father pose was not only of a physical nature and emotional harm, but also here you can see that he suffered from a condition known as fragile X syndrome, which is a genetic condition that causes a range of developmental problems, including learned difficulties and cognitive impairment. This is inherited. And even though he had in in two other cases identified in in a agreement that was signed by him and the mother concerned that he had disclosed this. In fact he had failed to make make it very clear he hadn't identified the full extent of what this meant and almost glossed over it. So again, that was raising issues as to how transparent and honest he was In demonstrating information about his own position which obviously was a should have would have been a very significant factor to enable the mother's concern to make an informed decision as to whether or not to engage with him in terms of the sperm donation. So it's a very useful case and therefore one that's worth looking at when you're looking at these aspects surrounding child arrangements and section 91 14 and change of surname. Now that then brings me onto this other more recent case. This is the case which relates to permission to arrange the COVID-19 vaccination. This 2022 decision handed down by her honor. Judge Rowe Qc. Now Casey of course of the eighth of august 2020 to 6. A recent judgment just handed down a few months ago. And what this case really looks at is the growing issues surrounding the use of the covid 19 vaccinations in cases involving Children. And what was particular about this case is the Children aged eight and 10. Father had lodged his application. A specific issue for covid vaccination in May this year. Now some of you will be aware that we had the first covid vaccinations made available back in december 2020. So some of you remember we had those available then and that's where the then Mr Justice Mcdonald handed down the judgment in that case where by Mr Justice Mcdonald in a case called Mnh in that case handed down the fact that as an orbiter comment if there is going to be a vaccine for Children available in the future. And in the case of Mnh, the private law vaccination case of 2020 if you want to read it, it's 2020 E F E W F C 93 that's where by Mr Justice Mcdonald said that if in the future there was a vaccine available for Children against covid 19. And in the absence of any scientific research or any significant risk factors which were identified, the court may will authorize it. So that was an old bitter comment that the court gave at that stage. And with that in mind, uh there was also the case some of you will be aware of. Uh later on. Uh in 2021 there was a case of VC uh in november 2021. And it was a case uh involved the covid 19 vaccination uh involving a child who was in care. So it was one, it was a case of VC looked after child. Covid 19 vaccination of 2021 if you wanted to read that one and the citation if you wanted to pick up his 2021 E W eight C 2993 F A. M. In that particular case. And um by the High court judge Mr Justice paul. It's one word by the court did say that local authorities in the exercise of their parental responsibility can via section 33 6, authorized a child in that case. It was 15 years of age to have the covid 19 vaccination if it was felt it was in their best interest. Now some of you will be aware that also last year we had in september last year we had that government guidance which allowed uh covid 19 vaccination for Children between 12 15. We also had the winter flu vaccination which also became available for Children between that age and therefore both of these were recommended vaccinations and therefore putting the vaccination schedule. The green book Then this year in February. This year we had now the offer of the COVID-19 vaccination to all younger Children aged 5-11. And this is therefore an office. It's not recommended in the same way that the recommendation is for older Children. Just like the COVID vaccination for older Children from September last year or the winter flu vaccination. But the offer is there and that's where the father wanted to go ahead and I consent to this for his for his two Children and he relied upon the fact that by having this obviously with the risk that they would have in contracting the vaccine which in turn would mean that there's less chance of them passing it on to others and therefore obviously not only protect them but indeed other people. So that was his main reason for wanting this. The mother of course did oppose. And the mother's main argument was she said that there had been insufficient clinical trials. This was not in the recommended list of vaccinations which was in the immunization schedule. Yes it was an offer but there wasn't enough testing done here to require this to be done at this stage. But the court based on that case of M. And H. D. I. Just mentioned the 2020 decision and also based on that case of re seeded I mentioned looked after child case of 2021 based on both of those decisions, one was obviously a decision which was high court which shared the court would then be banned by here or certainly would be highly persuasive and the other was an orbiter comment but based on that and based upon the science at the time and the recommendations, the judge did Take the view that it was in the overall best interests of these Children to have the COVID-19 vaccination. There was no pre existing disposition or any other reason why these Children should not have this. For example, there wasn't any risk that was put before the court that they would maybe suffered from a trauma or any other specific concerns personal to them and therefore on that basis. the judge did grant the specific assured and therefore the father would have permission to arrange for the vaccination for the Children in those circumstances. So again, you can see it's a very, very useful case which looks at those points in some detail. Let's now start looking at somebody developments insofar, as public Children law matters are concerned and somebody updates insofar as that's concerned. So what I want to start with them is looking at the issue of vulnerability. Now, as you know, this is something that I looked at in the previous session when we looked at the issue of participation directions when you're dealing with private Children or cases. So we looked at the fact that the domestic abuse act of 2021 had brought in the notion that if one is relying upon a domestic abuse or risk of domestic abuse, then by any of the other parties or witnesses involved in the proceedings, then they're regarded as being automatically vulnerable. And therefore that brings into play part three of the FPR practice direction three A. So therefore we need to be looking at participation. So we looked at that in the context of private law. But where does this fit in the context of public law cases? Well, this is what a case of es vulnerable party fairness of proceedings is very useful is 2022 decision handed down by the quarter appeal and the leading judgments handed down by law Justice baker. And what this case looks at looked at was a case involving care proceedings whereby the matter had been listed for a finding of fact hearing and the child concerned here was six years of age. And the issue was this, this child who was the subject of the cape ceilings was in the house at the time, at which another child was also there who was a five year old and a five year old had been injured. And what was relevant was when that five year old was injured. Uh was that in the same house as a six year old and split was spending time with a six year old. The concern was that that that five year old was injured by his mother. And therefore, if that is the case and that harm that was caused a five year old by the mother was caused deliberately or recklessly or otherwise. And therefore not accidentally would then mean that the parents of the six year old that they know about the risk that the mother of the child posed. And therefore did they fail to protect that? They failed to identify the risk that they failed to supervise. You can see where the linkages there. And therefore the mother of that five year old who was suggested had caused that child non accidental injuries was brought in into the cape scenes related to six year old as an intervener because it was being suggested that she had inflicted these injuries other than through an accident. And she was brought in as an intervener. And findings were in fact made against her. She gave evidence remotely uh was she was at her solicitor's office and she gave evidence remotely. And findings were made against her. And it's those findings that she later appealed against to the Court of appeal. And there were numerous grounds of appeal that she raised. But one of the main grounds that she ran was procedural irregularity and unfairness. So she ran that argument and she had cognitive disability. She had been assessed by a psychologist who had recommended that in fact she should have the been assisted by an intermediary and the appointment of community court for assessments due to take place. Now many of you will know that an intermediate will of course play a pivotal role in enabling a person to be able to participate particularly during the court process the court hearing. So for example when they are answering questions on questions that have been put to them during cross examination allowing them to have questions put to them in a much more simpler format when they are giving answers, making sure that those answers and then putting a simplified format, making sure that they have adequate breaks, making sure that they are able to participate through maybe diagrams pictures under the means in that regard. So therefore whatever the aspects of the cognitive disabilities are that those are clearly dealt with and carefully to ensure that they can effectively and fully participate in the proceedings. But despite the fact that uh the intervener had been seen by a psychologist and the recommendation has been made that wasn't put into place. Those adjustments were not put into place at the point at which she gave her evidence. And like I said those recommendations were there the first psychologists have made these and in fact after her when as she lodged her appeal, she was then seen by second psychologist specifically recommended an intermediary. And in fact that the day before the appeal hearing an email was received by her solicitors from communicable uh the intermediary service specifically identifying what type of assistance she would require in the circumstances. So, like I said, the actual fact finding hearing was conducted whereby she gave evidence remotely in the corners with the practice adopted in the family courts. She gave evidence while sitting alone in a room in a solicitor's office. And her main argument was that the court had failed in not having had an intermediate call for her, as had been recommended by the psychologist. And nobody had at that hearing at that fact finding hearing identified. And in fact expressed concerns at that hearing about her cognitive functioning. And one of the points that the court appeal raised here is does the duty apply in terms of participation. Does it apply to all parties and indeed to witnesses? We all know that it does apply to parties, but he or she was a witness? Remember, she was an intervener. She wasn't a party in these proceedings. Does it apply to interveners as much as it does to parties? And of course, had Absolutely yes. A pack of 39 of judgment. His lordship said that yes, just as much the duty applies equally to any party as well as two witnesses who are vulnerable and therefore, to ensure that the court enables them to be assisted in participating in those proceedings. And invariably, the court said it would be one of the parties or indeed representatives rather than the court who first identifies that party or witness is or may be vulnerable and as I'm sure many of you would have seen. That's very much the case. If I was representing a party or intervener, I would raise that because obviously from the instructions that I would have received. Hopefully this is something that I would have been identified and therefore needed to be addressed going forward. And what the court said is the issue of vulnerability should be considered before one even starts care proceedings. So some of you who do care proceedings will know that even pre proceedings when local authorities get involved when you're at the stage of say the child protection conference, when you're at the stage of the proceedings meetings, even at that stage, we need to be thinking about participation at that stage and and therefore making sure that those aspects of whatever may be required implemented going forward. And this is where the court, to be fair to. The lawyer for the intervener said that it's not always easy to identify vulnerabilities and professionals, particularly when you're dealing with urgent cases and difficult situations and families and I'm sure many of you will agree that now that over the last two years in particular, we've been doing a lot more remote working obviously remote hearings. Many more lawyers have not been seen their clients in the same way they would have done previously, you may not be having as many face to face meetings with them. A lot has been a lot is being done remotely and therefore you may not identify vulnerabilities, it may not be as apparent. It may not be as obvious. And obviously if the client doesn't volunteer this information or they themselves are unaware of it, then you can see why this could get missed sometimes. But what the court did emphasize is that as a matter of good practice at the case management congo hearing. One should actively investigate whether any issues as to vulnerability do. In fact arise. And the responsibility very much relies lies not just upon uh, the the court, but indeed also on the legal representatives. And in this case obviously therefore not just upon the court, therefore won the legal representatives in this case for the intervener. And the court did say that in hindsight, of course, with the greater benefit of high site legal representatives should be particularly vigilant to detect possible vulnerabilities in their clients when they're unable to meet them in person. Which may well be the case in these types of cases. Of course, that's understandable. And here, to be fair to the lawyer for intervener. Her difficulties were not immediately evident to a lawyer who only became concerned towards the end of the hearing. So, to be fair, the court could understand why in fact, that was the case in the circumstances, but that doesn't Distilled from the fact that it still needs to be obviously dealt with accordingly. So therefore, was there a procedural irregularity? Yes, there was. And therefore if you look at paragraphs 44 and 45 judgment, his lordship did say that failure to identify her difficult difficulties and therefore to arrange participation, directions did affect obviously the quality of the evidence that she gave it did relate to a serious procedural irregularity. The hearing was therefore unjust and therefore it had to be looked dealt with again. So you can see it's a very, very important case which identifies that. Okay, so that brings us to the end of this session. Session 2.1. So as you can see, we've got some aspects of private Children and public Children. So what I'll be doing is developing this in the next session, which is going to be session 2.2. Okay, so I'll speak to you very soon. Thank you very much indeed.

Session 2.2

00:39:16

Hello and good afternoon everybody very pleased to welcome you to today's session through data law after Mahmoud and distance is session 2.2 of the three stage course that I'm doing where I'm taking you through some updates on private and public Children law cases as of autumn 2022. So as you know, this session really is continuing from the previous 12.1 where I'm going through various elements with you on private and public Children or cases and in the last session you remember looked at that case of insofar as a position of vulnerability and participation directions. So we're looking at the laws of October 2022. Now today then what I'm going to be doing then is I'll be developing these themes on looking at somebody updates insofar as public Children always concerned. So we'll have a look at that. We're going to start with this case in Nottinghamshire. Very, very important case about working with parents with learning disabilities will then have a look at the adoption agency regulations and some of the case law on that reopening findings. We'll have a look at what the current thinking is on that interim separation of Children from their parents will also have a look at some of those developments there as well. So what I want to start with then is this case in Nottingham. Sure, so not to come to the council and XX and others this case handed down by Mr Justice Noel earlier this year, in the family court on the 19th of january 2022 and even though this case related to other elements, there were for example, matters that were discussed in this case surrounding the international connection, in that the family had connections with Romania. And the question was whether or not english And Welsh courts should be dealing with the proceedings or whether the proceedings related to his childhood was 17 should be transferred to Romania. Uh the proceedings themselves had been issued Before we exited Europe and therefore they issued before uh the time at which we left Europe at the end of December 2020. So therefore the old Brussels to revised would still be applicable. Many of you will know of course that four cases that are issued as from first of january 2021 in terms of tennis shoes over jurisdiction. Uh we're still relying upon domicile and or habitual residence, but we're relying also upon the Hague convention of 1996. So they're looking to see what the positions would inform other countries with Ensuring that other countries they're not able to participate in terms of whether we should continue with the case or whether the child's matters should be transferred to other countries. So those matters are still highly relevant and a lot of it is contained within the hague convention of 1,996,000 Brussels to revised. Now this case also looked at matters surrounding the issue of vulnerability and also learning disability. So the child was 17 months of age, I was living with foster carers and subject to interim care order proceedings were brought in September 2020 is obviously that's where the Brussels to advised came into play. As I mentioned, local authorities were seeking care and placement orders and mother lacked litigation capacity and she was represented via her litigation from the OS who gave instructions to her lawyer. So that's where you've obviously got that issue as to capacity. So cognitive and capacity assessments had been undertaken of the mother. She lacked uh litigation capacity and hence why there was the need for litigation friend and the OS as a litigation friend of last resort was then on board who was then given instructions to mother's lawyer uh to assist her in the proceedings. There was also in a cognitive functioning assessment of a mother and that raised concerns that she had learning disabilities and therefore there was a need for participation in that regard. Now this is where the local authority, in terms of the assessments carried out a specialist learning disability parenting assessment to a mother under parenting assessment of the father. And there was also evidence given by the mother's adult social worker and the local authorities position was that based upon the assessments that had been put together. Obviously the learning disability pending assessment of mother that coupled with the assessment of father coupled with the information given by the adult social worker as a whole and therefore collectively showed that neither parent could meet the child's needs whether individually or jointly. So that was the position of the local authority and insofar as the position with the adult social workers assessment and mother and father was concerned that had been undertaken and there had been the adult social care worker assessment assessment, which had been conducted of them separately and together. And in terms of mother's cognitive needs, it was found that she would struggle to cope with and recognize the needs of a child and she would be unable to manage the risks and provide appropriate care. She did need help with parenting. Now, what was also uh of significance in this case was the fact that mother was expecting a second child and in fact she was pregnant with carrying her second child. And part of the assessment and also picked up the fact that the addition of a new baby Would mean that both Children, both the unborn child were born and also the 17 year old who was the subject of these proceedings. Both would be cared for in circumstances where mother would seriously struggle to meet their needs. And effectively, it would become one of substitute care because the level of support and assistance that the mother would require in the circumstances would be would be substantial. And it was made very clear in the assessments that mother's difficulties were not intentional. They were unintentional. I think it's important to emphasize that because as you can see she had learning disabilities, but those were not disabilities, which obviously she brought on on herself and the difficulty was having and being able to meet the child's needs were unintentional. It's not it was through it wasn't through her own lack of willingness in that regard. So you can see why it's very, very important to emphasis that And what the assessments identified was that the help that mother would receive or to require from adult services would not plug the gap and give her the skills she needed to resume the child's care, not just of the 17 month old, but indeed also of the unborn child. And as you know, that's what we have to look at. When we're doing these assessments. Look at what what the ability is, what support they're going to need, what support they can maybe be able to be able to obtain from adult social services to meet the criteria. And here the help she was going to be getting from the adult services. That would not plug the gap between what mother needed to be able to meet in terms of meeting the child's needs and what she was able to do and what their Children required in the circumstances. It just simply wouldn't plug that gap. The list of basic tasks which was required to carry out was simply once that she could not do to meet the needs of these Children and therefore it was likely that she would fail and she would place not just this child, but indeed the other unborn child at risk of serious neglect. So the question was, were the assessments undertaken appropriately and the answer is implanted that yes was yes. They're worth our assessments that were done and they were appropriately done in the circumstances. So there's no criticism insofar as that's concerned. Now, this is where in terms of them parallel planning. The judge then looked at the alternative options. There were no kinship care options which were safe for the child here or the assessments were either negative or ended prematurely. Even the assessments relating to family overseas in Romania or once that either negative or ended prematurely or not replacement of the family overseas would not be appropriate. And therefore none of these have been challenged in the circumstances. So in terms of them looking at the balancing approach, the balancing exercise. What are the realistic options? But the court said that there were three realistic options here. Firstly, placement with father and mother, long term foster care and thirdly adoption. And the court on the facts. Looked at the arguments for and against each of these options and came up with the view that on the facts, given what assessments had been undertaken, given a need for stability and certainty and meeting the long term needs of these Children, long going forward, the child's welfare, best interests would be met only by way of adoption. And if the court did make the care order and endorsed the plan for adoption. So very careful and appropriate uh judgment was then entered with that in mind. But what her ladyship also did in this case, taking the matter further is her ladyship looked specifically at what needs to be done and what should be done when one is dealing with cases involving parents with learning disabilities, as in this case, and this is where her ladyship specifically referred to the support that can be identified and required uh and set out within the good practice guidance on working with parents with leading disabilities. And this was first published in 2007, amended in 2016, and then in 2020. Once, obviously quite recently in that regard, and this should be widely disseminated to both Children, family social workers, as well as adult social workers. And ladyship said, the ladyship said it's an essential part of continuing training for both adult and Children's social workers in that regard. So it's an integral part of their training and their managers and here sadly it wasn't the case, it hadn't been fully taken onboard. The guidance should be at the forefront of local authority planning and it would give focus and regular to evaluation of parental strengths and weaknesses in cases, whether before the courts or not. So, you can see sort of key aspects that were being identified and referred to here and furthermore, taken it to the next level. The court said that cases which come before the courts involving a pair with learning disabilities should, as a matter of good practice, be capable of demonstrating that the guidance has been taken to account in any care planning the proposals put forward by local authorities. So the local authorities should be able to confirm that. Yes, this guidance was considered explored and taken into account in coming to the decisions that they did. There must be timely refers to adult social care for parents and difficulties in their own right and that should be such. That refers are done in a timely manner and there shouldn't be a lengthy gaps. And sadly here this was something that hadn't been done also where you've got parents with difficulties involved with Children's social care, where child is on a child protection plan that they should have their own advocate as a priority. Okay. And I refer for that should be made as soon as possible. So again, you can see some of the recommendations that were being made and that came out of this case going forward. And finally her ladyship said that support available to apparently and disabilities in their own right should be distilled into a simple document. Okay, so simple language document which identifies what's available, how often it is the time scales for you and whose responsibility these for delivery of it. Okay, so identifying what's available, how often timescales for it and who's responsible for delivery. So that should be set out in a simple document for the benefit of the parent in those circumstances pending assessment should be noted and followed up on a regular basis. And this document should be shared with Children's social care if involved and discuss with a parent in the presence of the advocate if possible. So you can see a number of key things which some were done somewhere not an effort which her ladyship identified needs to be done in these types of cases. And furthermore supported the care of a child which has been delivered should be distilled into this simple document as well. So obviously timescales who's responsible for it and they should be shared with adult social care. So you've got that that that overlap between what Children and adults should be involved in. Okay. Right. Let's then have a look at some of the other aspects then by we have updates. Now. This is where this case of a county counseling, NHS clinical commissioning group and another is highly relevant. This was a decision last year Uh and November last year. And what this case really turns on is the issues surrounding the position with the non compliance of the adoption agencies regulations of 2005. And then the equivalent of those in Wales in 2005. And here the issue was in the particular cohort of Children. What had been identified is that they had been made subject to placement orders and then subsequently some Children have been made to adoption or subject to adoption orders. And what was discovered was that in relation to uh the medical reports that were done in terms of the adoption medicals. Those in fact took the form of the initial health report that had been done when the Children were first received in the care. So they were not separate adoption medical reports done and therefore made available to the ADM. The agency decision making, then coming to a decision whether or not to approve a plan for adoption for those Children. And secondly, the permanence report. The Cpr pursuant to regulation 17 of the adoption 18 X 2005 for the child's assessment report and the written report as referred to in 17 of the adoption regulations in Wales of 2005 did not contain a summary of the child's medical position. So as many of you will know, the cpr, the child's permanency report must contain a summary of the child's medical position. And these did not contain that. And therefore the ADM didn't have that summary when they were then deciding whether or not to give the approval for the local authority to enlarge any placement application. So the question was because this hadn't been done and there was non compliance with these particular aspects of the adoption regulations as well as others. Did it lead to those placement orders that were then made being defective. And that therefore mean that those adoption orders that were subsequently made, were they also defective and obviously therefore if they were that this was going to have a significant impact on other orders that had been made, not just in this particular local authorities area, but indeed across local authorities across the whole of England and Wales. So relationship referred specifically to adoption agencies regulations of 2500 Welsh equivalent obviously under 2005 ones in Wales. And these regulations are supported by the statutory guidance embodied in a separate document which was put together by the depart of education in July 2013. There was a draft in July 2014 which had not been completed. And this is where regulation 15 specifically refers to requirement to obtain information about the child and regulation 17 which is the requirement to prepare and complete the permanent report, a child's permanent report, obviously having that medical summary. So this is where the court was prepared on the facts to be satisfied that on the facts because at the time at which the placement order was made, that information had been made available. And subsequently at the point of the adoption there were the updated medicals provided the court was prepared to grant relief to local authority who was seeking relief for the placement and the care orders to placement and the adoption orders to stand. But obviously this was going to be a major issue going forward in relation to other case and therefore the matter needs to be referred to and considered by the president of the family division, said Sir Andrew McFarlane and that's exactly what happened. So, we had this judgment earlier this year handed down by the President was a case of a county council and NHS clinical commissioning group and others. On the 13th of april this year handed down by the President of the Family division. Sir Andrew McFarlane. And this is where the local authority had lodged applications under part 18 of the FPR, where the local authority were seeking for the declarations that they had lodged by the court to be granted to declare that the placement and subsequent adoption orders that had been made were valid and therefore should stand. But his lordship said that there was no basis for the local authority whether here or other local authorities to issue similar applications with the respective breaches of medical requirements or the adoption regulations that may have been discovered in cases after placement or his adoption order has been made. His lordship said that there was simply no basis for local authorities needing to lodge any similar applications. And essentially what his lordship was commenting on here was this the fact was that when in these cases The court was being asked to conclude the proceedings by way of making a placement or the adoption order and of course the court is banned by other criteria. So, for example, to make a placement order pursuant to section 21, the court needs to ask themselves whether or not the child is subject to a care order. Whether the threshold of the 31 to or met a child as a parent or guardian which may may or may not be alive. And then you're looking at whether or not you've got the consent of the parent pr and if not you're looking to consider whether or not the parents consent you'll be dispensed with. And that's where you're looking at Sexual 50 to 1 A. And one B. So 50 to 1 B. Of the A. C. A. The adoption of Children at 2002 is often referred to whereby one would be arguing that the child's welfare requires the parents with Prs consent to be dispensed with. So those are the criteria that the court takes into account in deciding whether to make the placement order. The court is not required to take into account as part of their determination as to whether the local authorities are fully complied with the various aspects of the adoption agencies regulations. So it's almost a bit like an Actor one and Act two. So as the President described it back to one of the local authority make areas and not complying with the adoption agencies regulations. It doesn't mean that the steps by actor too, which is the cord the steps that they've taken. It doesn't mean that those avoid because those would not necessarily be dependent on whether actor won by the local authority had complied with their requirements. And in fact, what what the president said is that if by the time any placement application is larger than it's discovered at that stage that the medical reports were not done, all the CPR didn't contain a summary. Of course it needs to be rectified rectified. If the placement of the order has already been dealt with, then it may well then require uh to ensure that that information is made available at the point at which any adoption application is lodged. But the possibility of placement and adoption order has been set aside on the basis of this procedural failure, it's very unlikely the President said for those to be set aside on the basis of these procedural failings. So it's obviously a very, very important case. But what the court did say is it's a matter for each local authorities to review the procedures and to make sure that these failings if they are happening and continue to happen. Of course they need to be rectified within that local authority area. Let's now look at the position with reopening findings and what the current test is insofar as this is concerned. So this was the recent decision in Nottinghamshire And another, this was a judgment under down by Mr Justice most in on eight March this year and what his lordship is really looking at is what's the position where if somebody seeks to, for example, reopen findings relating to matters whereby findings were made for some months or years previously. What's the test for that? And this is one whereby the mother had lodged an application for rehearing of the fact funny hearing in relation to her daughter. So some years previously, the mother and the stepfather had a pool finding which was made some years previously relating to this child. Now the pool finding. Some of you may understand as also referring to what's called the lancashire finding. So some of you may understand it by that term and that's essentially whereby the court is then satisfied that if they are of the view that the child is sustained injuries was in the care of, say the mother and in this case a stepfather while the child was in their care and the injuries that the child sustained other than through an accident. So the court is satisfied it wasn't an accident. It was dangerous have caused either deliberately recklessly or negligently. But if the court cannot determine more likely than not as to who was. So it could have been a mother could have been a stepfather, but that cannot be satisfied more likely to not as to who was out of the two of them, but nonetheless the judge is satisfied that it was either or both of them and therefore neither can be exonerated and that's where the court can make what's called appalled finding to say it was either or both of them on a balance of probabilities. But the court cannot determine more likely than not who was on that basis. And that's what we mean by paul finding. So a poll finding was made in relation to this child. Some years previously, when the child had only been six months old, the child had to have bruising and fractures to a rib. And the court is satisfied that injuries to childhood cause other than through an accident by either the mother or the child's stepfather. So, those findings had been made. And one of the key things that the president did. Mr. Justice Mostyn specifically identified as was made clear in this case of VJ of 2013, is that a pool finding cannot in itself be used as a prediction of likelihood of future harm to another child by the mother and the stepfather. So what I mean by that as DJ identified is that let's say the mother and the stepfather separated. And so let's assume they separated and then later, let's say mother met another man and she started living with him and they had a child together and say later. Local authority commenced cape ceilings a mother's second child. They've got no threshold concerns relating to the father of that second child. And the only concerns they have a mother is this previous pool finding then that in itself cannot be used as a prediction of likelihood of calm to this other child because there is insufficient evidence there itself to show that mother more likely than not caused the injuries to her first child. Because remember the poll finding doesn't say that it doesn't say more likely than not. It was mother. It says that these injuries have caused whilst her child was in the care of mother and stepfather. And by either or both have neither exonerated, which is not the same as saying that more likely than not he was mother or more likely the stepfather cause injuries I think is a very, very important case which we need to bear in mind and therefore, unless there are other matters that relate to threshold pointing towards the mother and daughter. Father in that case, then really threshold may not be met on the facts of this case. Nonetheless, that paul finding was made many years previously, neither mother nor the stepfather made an application to appeal those findings and the case had in fact been concluded by special guards report made in favor of the maternal grandmother. So that's out of court had concluded those proceedings. But then what happened is some years later, mother did put the application where she basically sought to reopen those findings. So, some years later, she sought to reopen and she claimed that the fracture, the rib fracture was in fact caused during the skeletal survey which took place and in breach of the guidelines laid down at the time. And the application made no mention about the bruises, but as for the rib fracture. Mother said that that was caused in the actual survey, escaped a survey that was done to scan that was done in accordance with the guidelines. So she was very much reliant upon that. And secondly, she said that the child possibly suffered from osteogenesis imperfecta iii brittle bones disease. And she said that that's why the child had sustained the fracture. So she relied upon that. Now, this is where his lordship referred to the concept of judy carter and rescue Jakarta. What that principle is, is it bars people and it stops people from raising further issues because of this concept of residue Jakarta. So the way it operates this this principle is this if the parties are the same subject to limited exceptions, they are barred from re litigating the same issue. If there is no fresh evidence. And here obviously the mother and stepfather had the right of appeal, uh if they hear didn't pursue that, then you have got the possibility of applying for leave out of time. They didn't pursue that here. Well, here, if mother is now saying that actually the child had uh osteogenesis imperfecta or the guidelines for carrying out the assessment was not. We're not done properly. Then, then in that situation, should she be banned by the residue carter principle in that really issue should be stopped from pursuing that on the basis that she has not got new evidence. But instead she simply wanting to relitigate what has already been determined previously. And the question his lordship asked was whether or not the rest of the carter principle can and should apply in Children cases. And his Lordship said it does, it applies just as much to Children cases as it does to others. So therefore she won't be able to re litigate if she failed to address those issues in the main litigation, she's effectively barred from doing so subject to obviously the right to appeal. If for example, there was a procedural failure or failure to apply relevant law. What a judge's discretion was not properly exercised. Those aspects obviously different. What if mother wants to reopen? What if there is new evidence that has subsequently been obtained which he seeks them to use to reopen the findings? Well, this is where his lordship specifically referred to the case of V. E. And some of you will be familiar with this case of this was decided a few years ago by the Court of Appeal. And what the court appeal here decided was that if as in this case you've got findings that are made and subsequent to those, there is new evidence that the person wishes to then use to be able to really retest the evidence to suggest that the findings that were made should be perhaps set aside, Then what do you do? Do you wait for them to look at the possibility of appealing? But if the appeal route is exhausted or not available, do you then look at reopening by way of providing that information back to the initial judge? Do we consider when we e the court appeal did say, as in the facts of that case, that were findings have been made that the Children had sustained injuries in the form of burning injuries following being burnt with a cigarette and in the cave ceilings. The dermatologists have suggested that the reasons that the mother gave would not plausible, and subsequently the court made findings. But if later, after the conclusion of kept ceilings. A dermatologist who was a plastic surgery who was instructed by the police. Whether you're looking at criminal proceedings identified that actually those injuries could have been caused to an accident. Because you've got that any information. What do you do? Do you appeal or do you provide that information to the original judge to ask him or her to reconsider? When we e the court said that in these circumstances you don't need to necessarily appeal. Instead. You can make an application at first instance before the judge who heard the fact find so as to enable him or her to see whether there is any solid basis to look at perhaps reopening the findings i. E. Is such new evidence which may cast doubt as to the base upon which those findings were first made. And if so then that's the way to bring it in and that's exactly what Mr Justice Mostyn said here. So firstly, his lordship said he couldn't see any reason why the general substantive law judy carter shouldn't apply to his Children cases. So of course he can and should do. But secondly, if one does wish to invite the judge to reopen the findings, then one way to do that is to use we. E. And therefore to provide further information to judge. To see whether there is solid grounds to look at reopening the findings that were made. Now, what effect does this pool finding have on any further Children that mother may have? Because as you can see that was the major concern that mother has and his lordship did say that if mother does decide to have another child in the future, then the question as to whether the paul finding would be relevant in any future proceedings by local authority against the mother would be such. That any pulled finding cannot in itself as as the case of E. J. Says cannot in itself find a prediction of likelihood of future harm to the child to that child by the mother. It can apparently act as a makeweight with other evidence service. So it can't as we said, be used as a prediction of likely to future harm. But nonetheless it is evidence there which may well be relied upon. His lordship. They ultimately said that although in theory would be possible for mother therefore to invite the first instance judge to therefore we look at fresh evidence whether we're looking to see whether there are solid grants to look at reopening the finding of fact. So that's the route that one can take here on the facts. His lordship said that he was not satisfied that relation to re fracture. There were those solid grounds for believing that the early findings required revisiting these arguments that mother was raising. When we're hoping speculation more than anything else and therefore on that basis because there were not those solid grounds. In fact, the issue of whether the child had brittle bone disease had already been considered looked at and in fact necessary guidance was followed at the time in relation to money which the skater server was done. So therefore, both of those arguments were not plausible and solid arguments in themselves to justify reopening the findings and therefore on that basis, mother's application was dismissed. Okay, so it's a really, really useful case and therefore want to look at when you're looking at these types of matters. Right, okay. For the last part of today's session and what I wanted to do is talk to you about the position with interim separation and many of you know, will often have cases where by the local authority may then be seeking an order for separation, an interim care order with a view to them having the child separated from parents on the basis that they would be arguing that the child's welfare demands it Many of you would know that some of the previous authorities on this, the case of L. A. of 2009. The case of re be of 2009. Both court appeal decisions, the Greasy case of November 2019. Again, quarter appeal, they very much emphasized the fact that in looking at the test force separation of a child from parent or continued separation. One has to satisfy the court of that child safety demands immediate or continued separation. And this is where there's a need to consider Looking at all realistic options. And that's very much where this case. A repeat comes in of 2021. Where the issue here was one of separation of the mother and baby child was a year old and had been subject to an interim care order from birth. And both mother and child had been placed in the mother and baby foster placement, which did break down within a matter of days. Now later, there was a 12 week residential assessment which was offered to mother. And she therefore entered that 12 week assessment and a parenting assessment of mother was undertaken in that unit using a Pam's Mace-based model sort of parenting assessment model. She didn't make some progress at first, but she couldn't maintain the care that was required to be given to the child In that unit staff almost daily had to intervene, mother uh and was then towards the latter part of the assessment mother was displaying verbally threatening behavior that required the staff to intervene in the proceedings. So ultimately, the recommendation was that they would not be recommending that the child be returned to the community uh with the mother in the circumstances. And this is where the local authority, therefore, we're looking at the separation And what this case highlights is that when you are therefore looking at separation, particularly in light of that case, we see that I mentioned one of November 2019, whereby Lord Justice Peter Jackson in paragraph two of that judgment specifically said that when the local authorities are looking at separation, it is necessary for them to inform the court of all available resources which may be available, which may avoid the need for separation. So here on the facts, applying that thinking and that logic here, the court was in fact satisfied that in fact there were four theoretical possibilities here. And firstly, the first possibility was for the child to be placed with his mother in the community unsupervised, which on the facts was felt impossible and not proportionate given the risks that were posed and had been demonstrated. So that even though it's an option was not one that was going to be realistic in the circumstances, secondly, an alternative residential placement, but that would take time to arrange, there's a possibility, but one which the local authority did not feel on the facts, they could recommend. Thirdly, 24 hour CCTV monitoring your mother's own flat. That's a possibility where you've actually got CCTV cameras in mother's own flat, but it was felt that this would not be suitable because this would provide less protection than even a residential unit would be able to in those circumstances, because because if the child was about to be harmed or may be harmed, even though there would be the monitoring in terms of CCTV coverage, it wouldn't stop the child from necessarily being harmed in those circumstances. So less protection and a residential and the only other option on an interim basis was this for the local authority set up full time, live in supervision and mother's small flat herself, so effectively of setting up this live in supervision were effectively, the social worker would actually don't actually go and actually stay in the mother's home and the social worker would then be supervising the care given to a child by the mother in those circumstances, uh that it was a completely exceptional measure. But even if it was appropriate that the court was satisfied and obviously would take time to implement and put this into effect. And this is the mistake that the judge made because the judge seemed to think that this could be put in place immediately, and that's where the judge fell into error because this was something that obviously was going to be taken some time to put into effect. So here are the facts. The court was satisfied that in fact, insofar as the solution for this particular child was concerned? The obvious and only solution was for the child. For the local authorities plan for separation to be endorsed by the court because the other options would be, there were options were not realistic in the circumstance, and therefore on the facts and applying the previous case law, this child safety did demand separation from mother on that basis. So therefore the appeal would be allowed and the child would remain in foster care with frequent contact with his mother. So you can see it's obviously a really, really useful case which therefore emphasizes uh the key aspects surrounding separation insofar as that is concerned. So, it very much puts into play some of the key aspects which we often will take into account when we're looking at whether or not there should be a separation or not. Right, okay, so that brings this session to an end the session 2.2. And what I'm going to be doing that in the final session is I'll be going through some other updates with you. Looking at some aspects on updates insofar as deprivation of liberty. So, doll orders, secure accommodation in that regard. Uh looking at some guidance on looking at Charles competency, the position furthermore with intermediaries, for example, looking at the position with realistic options and also some more guidance on the position with various types of placements and also regulated placements as well. So, can I thank you very much indeed for listening. I look forward to speaking to you next time. Thank you very much. Bye for now.

Session 3

00:49:07

Hello, good afternoon, everybody very pleased to welcome you to today's session through Data Law. My name's Safta Mahmoud Liston is the final session, session three Of this course where I'm taking you through updates on Children law, where we're looking at private and public Children law matters as of autumn 2022. So as you know in the last few sessions and I'll be taking some updates in 2021, but principally during 2022, both in private and public Children law matters. And in the last session, you'll remember, I spent some time going through some elements of private law. We also looked at public law in terms of participation, good practice in dealing with cases involving parents with learning disabilities, separation and also the position with reopening findings in particular Today that I'm going to be continuing with the theme, looking at public child care cases and somebody updates Insofar as this is concerned, as of October 2022. So I want to start with them with some of the developments surrounding the position with deprivation of liberty cases and practice guidance on that. So many of you will know that over the last 45 years in particular, there's been a lot more developments in so far as the position with dealing with applications for deprivation of liberty and with that in mind we had in England, the Amendment regulations that came into effect on the ninth of september last year, 2021 which was the care planning placement in case Review Amendment regulations in England, which had the effect as from ninth of september 2021. Local authorities in England are no longer permitted to place Children under 16 in what's referred to as unregulated. Sometimes referred to as all the other arrangements. Likely those which do not therefore come within those which are regulated and Such as for example, a children's home which may be registered out of state, for example, that would suffice but say placing a child in a in a home which is not principally useful. Accommodating or looking after Children, say it's a cottage for example, it's a flat which is not therefore registered with offstage and may not require to be registration. And if a child of the 16, it's not permissible for that child to be placed in that type of placement. Having said that if the local authorities feel that that is the only viable placement available for that child at that stage and it does meet that chance identified needs. And this is where the court can be asked by the inherent jurisdiction of the High Court to authorize that placement through the deprivation of Liberty route, if indeed it amounts to deprivation of that child's liberty. But the question that was that was raised then in this Derby decision, Derby Council and C. K. And others was even though the previously the High Court in the time side decision which was handed down on the eighth of september 2021 by Mr. Justice Mcdonald had identified that it is possible for the court to authorize using its inherent jurisdiction to deprive the liberty of the child on the 16th With the placement in which the restrictions are subject to authorization are prohibited by Statutory scheme. So even though it is possible to do so as long as there is compliance with the president's guidance of November 2019, uh and also of December 2020. The question was Whether or not that could be done on the facts of this case. Now, the president's guidance in November 2019 is that which relates to the fact that um If for example it's a children's home, then you need to ensure that you're making inquiries with them as to why they have become registered, when are they going to become registered in the process involved in that? To keep the court informed and the addendum of December 2020 requires the order by the court then be made available to Austin in the case of England or the Welsh inspectorate in Wales so that they are aware of this particular placement and whether or not they are then applying for registration or not. What this case in Derby has highlighted is this, whether one complies with this kindness or not, doesn't determine the extent or existence of the court's jurisdiction. So if uh the provider of the placement is unwilling to or is unable to comply with the guidance. This does not prevent the court still using its inherent jurisdiction in those circumstances to authorize the deprivation of Charles limb between the unregistered placement as set out in the previous decision and re t back in 2021. So if the provider is saying, look, we're not going to apply or we don't need to apply, uh we don't it's unable for us to comply with the guidance or we're not going to apply that. It doesn't prevent the court from using its inherent jurisdiction authorization via Section 100 to authorize that placement if needs be So, it doesn't prevent the court. But the question is, will the court actually authorize it in the circumstances? And this is where the Derby decision has confirmed that if there is an unwillingness or inability to comply with the guardians, then this will obviously be a factor which the court would take to decide whether the overall best interests of the child are such, that the inherent jurisdiction should be used to authorize that deprivation. So if there is a refusal to apply, it's unlikely that the court will conclude that use within our jurisdiction in those circumstances is in the child's best interest. And if they do, it may be merely for a few days as opposed to anything more than that whilst the alternative arrangements are being sought. Okay, so obviously really really important decision in that regard. Now staying with that it's very, very important to recognize and appreciate the fact that in appropriate cases. Local authorities must make sure that if there is a need for a doll or to be granted to authorize that placement, they need to ensure that they applied for that as swiftly as is possible. And that's what this case of NHS trust and S. T identified earlier this year in March this year, a judgment and done by Mr Justice Mcdonald. So this was a case where the call once again to emphasize the fact that there is a shortage of residential placements for Children across England and Wales. And this particular case involved a 14 year old child. She was known to have a diagnosis of autism spectrum disorder, moderate learning disability, challenging behaviors which included physical violence and damage to property. She was a vulnerable child with highly complex needs. And sometimes uh, she had resorted to trying to unlock doors and windows to abscond. The family was sometimes having to deprived of her liberty by locking her in the dining room for example, because they so wanted that if she was to leave would put herself at risk. And this is where the family struggled in being able to meet her needs. That in fact they, the father took her to the local hospital and was pleading with the hospital for them to look after him because he was simply making it very clear that he and his wife were struggling to be able to meet ongoing needs and the hospital were able to have the child with them. Uh, and there was none. Following admission. The local authority employed a private company to provide security guards and carers to supervise on a 1-41 basis because of the wish that she posed herself, uh the en suite bathroom that she had, the door wouldn't need to be kept ajar when she was using it so as to prevent her from prevent her from harming herself and even when she was going to the toilet. So obviously can see the real issues here about her being able to maintain her dignity and obviously using the bathroom in that regard. And the NHS did subsequently apply for a dollar order, but only after they had subjected to this level of deprivation for a period of time. And one of the concerns that have been raised here is that an application for doll order had been made when necessary. She had been subjected to a significant amount of deprivation in terms of not being free to leave the restrictions and also the level of restraint that she was subjected to. And clearly met the criteria for the child being deprived of her liberty. So, this is where many of you will be familiar with the criteria is the there's a stalk in Germany decision in 2006. We're here at the european Court of Human Rights established that there are three broad elements which need to be met to constitute the deprivation of liberty. Firstly, there's got to be this objective element of confinement to a certain limited place for not Negligible period of time. Okay, secondly, there's this subjective element of absence of consent to that confinement sort of young person must not have consented to be able to consent to the confinement. And thirdly, it must be imputed to the state, we're here the deprivation that she was subjected to clearly met that as well as the acid test, all speaking as referred to in the case of Cheshire West and Chester Council, that some of you in 2014 so that she was not free to leave and she was subjected to continuous supervision under control. Well, the confinement was for not negligible period of time. So it was more than that she was unable to consensually have capacity consent. And thirdly, it was impossible to state that it was the NHS as a public body who was seeking this authorization. So all the components were met and therefore This did engage, there's still a matter of deprivation of liberty which therefore engaged Article 5 to the European Convention in terms of restriction of liberty and therefore this needs to be authorized. And this is where, like I say, the 2014 decision of Cheshire West and Chester against P was met in that the Supreme Court of in that case had also set out the acid test which needs to be met of whether a person lacks capacity is deprived of the liberty and and that's essentially whereby the person must be unable to consent to deprivation. And secondly, that the person must be subjected to continuous supervision control and not being free to leave, which clearly was the case on the facts of this case also. So that she did lack capacity was the deprivation of liberty. Yes, there was. And the court did say that in deciding whether to authorize this deprivation or not, the child's welfare was the court's paramount consideration. But here on the facts, the court was not satisfied that the deprivation of liberty at the hospital was one that was in the best interests and the fact and in fact the court went further and said the court regime was brutal and abusive to her, given a combination of the needs and the attempts of trust in good faith to be fair to them, to meet those needs in a placement which was entirely unsuited to the task. This was a case where it was brutal and abusive to her and it clearly was not meeting her needs. And of course, satisfied that keeping her safe in these circumstances where there was no alternative placement available that in itself cannot justify the authorization. Okay, Because it simply could not be said that the placement where she was in was keeping her safe. In fact, this was not meeting her needs going forward. So her needs were not being met on the ward. This is where she had specialized needs. She had, she was, she had autism spectrum disorder. She had a learning disability. This current placement was a general pediatric ward. So it was nowhere near equipped to manage the types of behaviors that she was exhibiting and they were never designed to do so. So again, even though the hospital were acting and had acted in good faith. Nonetheless, it didn't mean that this hospital was in fact equipped and able to meet her particular identified specialized needs because it wasn't and therefore clearly displacement was not equipped to be in her best interest. The court were critical of the trust and the local authority and that they really needed to bring this application before the court much sooner than what they did, there was still a question mark as to what the local authority Children services had not brought the application. Why it was the NHS Trust and the there may well be. The court said the possibility of examination of a possible human rights claim on behalf of the chance. So therefore, that would also need to be investigated. And as it happened, the court did make an interim care order at court and therefore that places the additional responsibilities upon the local authority so as to enable the local authority to identify bespoke specific identified placement for the child. But the court was not prepared to make the doll order given that displacement would not serve her well for her best interests. So again, you can see a number of key issues that were being raised in that case. Now for those of you who do public Children or cases, you know that when you do get the situations where say there's been a cognitive functioning assessment done and it's identified that the person lacks litigation capacity. Then this is where you obviously need to give your client the opportunity to be able to challenge that if needs be. And if there is a need to then engage the services of a litigation friend, then there needs to be attempts made to identify litigation friend. Then give you instructions on behalf of that person. Well if that litigation person friend is going to be the OS the official solicitor. And this is where there is this referral form which needs to be completed with that in mind. Now This particular form was updated on 21 December 2021. And this study is a form that needs to be completed by solicitors to provide this additional information about protective party. If the official solicitor has been asked to be a litigation friend in these circumstances. So basically for those of you who fielded and you need to be provided the additional information and the documents when you are inviting your western to be the litigation friends obviously very, very important to make sure that this is the form you're familiar with in your filling and going forward. Remember the old west will only come on board when there is sufficient evidence as to the person lacking litigation capacity when alternative methods of seeing if they have a litigation friend have been identified and the rest will come only come on board if they are litigation friend as a last resort. So bear that in mind. Also. Also some of you who will be dealing with public Children or cases will know that the issue of separate representation is one that needs to be considered and evaluated in these types of cases. And therefore this is where the family Justice Council recently, as of April 2022 have handed down very, very useful guidance relating to assessing children's competence to instruct a solicitor. So very important to have a look at that many of you will know about the positions surrounding separate representation of Children, whereby you may find that often the solicitor may remain with the child and therefore detached themselves from the guardian who ordinarily the Children's guardian who ordinarily would be given instructions to celestia on behalf of the child. But if there is that significant level of conflict between the child and the guardian and And the child is the solicitor reality is satisfied that the child is sufficiently competent to be able to instruct separately. And that's where the issue of separate rep would come in and this more recent guidance of April 2020's very much worth looking at and updating yourself in. So far as the factors you've got to bear in mind. Looking at the issue of separate rep. Now there's been a number of practice direction updates this year as well. So there was the practice direction number three of 2022 and this particular practice direction amends package destruction 30 B. So that some of you will be familiar with legal bloggers. So lawyers as part of for example various universities or journalistic organizations where they may then attend court as accredited law reporters uh and accredited media reporters. So effectively doing what the media would be able to do in terms of being able to attend hearings and take notes and then to be able to publish information about that case obviously ensuring that details about the child, the family, the school or any other identifying features are not obviously provided for in there. So this practice direction really updates the previous one in relation to legal bloggers continuing to be able to provide this service And some of you will be aware that we've got this pilot direction 36 B which is the H M C A T S C's pilot to allow certain applications and stages for adoption procedures to be completed. Also using the online portal. Clearly it's important to bear in mind that the portal is such that uh the for for purpose of these applications, it's not the case that one would be able to so if you're so if the parents going forward, for example they want to be able to access the actual adoption papers themselves or they'll be proceeds literally running order of the proceedings because obviously they will be confidential information and they'll they'll be the annex a report for example the cheese, the report on the adopted. So there'll be a lot of information on there which they clearly would not be able to access in those circumstances but instead to see running order of what the proceedings are and staying with Practice direction updates. There's also Practice Direction update number six of 2022 which relates to the H. M. C. T. S. Online system For placement order proceedings. Uh and this has been extended now to 31st of March next year. It was due to an end at the end of September this year but it has been extended to the end of next year with a view to the emplacement proceedings continue to be uploaded on the portal also. And like I said, there's the position Practice direction except in relation to adoption orders to be made online. And it's been used across various regional five regions as you can see here insofar as that's concerned some other updates in relation to forced marriage and FGM cases. Some of you will be aware of the fact that this recent amendment to the family procedure rules has come into effect just a few weeks ago. So this came in on one October 2022. So that if you're dealing with cases involving forced marriage, it's very important to bear in mind that when and if you are getting an order for forced marriage protection order or female genital mutilation protection order case, then you need to ensure that the order is served within two days of the order being made unless the course as otherwise was previously. It used to say that you could serve as soon as is reasonably practicable. Okay? Now it's within two days of an order being made unless the court says otherwise. Okay. And secondly the practice direction states it sets out the position for notifying the police protection orders made very extended or discharged and making sure that the police obviously appropriately notified as well going forward in that regard. Now the position with intermediary so I spoke about intermediaries in some detail in the previous session, we looked at that case of re s earlier and how that case of January 2022 and why it's so so important to look at the need for approved intermediaries to assist witnesses and parties to participate in proceedings to help them in terms of the answer is that they are giving in court the question that I put to them in terms of inadequate breaks in terms of being able to communicate using other methods will be to ensure full participation and with that in mind this most recent h. M. C. T. S guidance that's been made available, emphasizes the use of approved intermediaries, intermediaries and also the assessment process and this was updated just a few weeks ago, the 20th of september 2022. So this is the form that you should be using to book an intermedia for an assessment of a service users or clients communication needs before you actually attend the court or a tribunal hearing. So the way this would work is, let's say you've got a situation where so you've got cognitive functioning assessment and the mother and that recommends the use of intermediary. Then what you need to do is you need to then arrange for the intermediary then to assess your client is exactly what they would require with a view to then the court been in a position and to be able to look at funding the use of intermediary in court. So this is the form that used booked intermediate for the assessment and then for their attendance at court in that regard. Okay. And you know, sometimes the court will actually fund the cost of the intermediate in the courtroom. But if you require them to attend maybe conferences, meetings, the court building in terms of uh consultation with their lawyers. And often there would be an expectation to apply for prime authority so as to enable that to be done. Supply authority from the legal aid agency and staying with illegal. I don't see many of you will know that we do have the guidance on the remuneration of expert witnesses in family cases. We've been using volume six, version six of september 2020 which was updated to set out a position considering the use of lay advocates in particular the costing and this remuneration gardens has just recently been updated last month, Which outlines now the expert fee rates for criminal cases and new rates for cases that began on or after 30 September Alright. And that's as a result of the independent review in criminal matters. Now, you'll be aware that there's been other initiatives and new provisions that have come into effect this year. So we've had these new offenses that have come in with known as Tony's law, Tony who many of you all know is that little boy who suffered horrendous injuries at the hands of his parents when he was much younger as a baby, which has led to him sustaining significant physical injuries at the hands of his carers, which led him to lose his uh hearing into one ear and also he sadly lost both of his limbs and through that level of horrendous Former crew. Today he was subjected to. We now have had these new offenses and updates in terms of the sentencing for these, which has come into place recently in june this year. So this is as a result of the police crime sentencing and courts act of 2022 in relation to the penalty for cruelty to Children under 16. So that uh that penalty has now increased from 10 to 14 years. But also you've got section 123 which is the penalty for causing allowing a child of vulnerable adult to die or suffer serious harm. And also for child vulnerable adopters of his significant injuries. So these offenses which have been in place for a number of years, the actual penalties for them have been increased. So in the case of a penalty in the case of persons, death on conviction, imprisonment has increased now for 14 years to life will find of both in the case of penalty in the case of serious physical harm On a conviction that has now increased from 10 years to 14 years or fine or both. So again, you can see very very significant uh increases and you can see the thinking behind us. Of course. Now we all know about the case of EBS obviously we B. S. is a very, very significant case back in 2013, which emphasizes the importance of looking at all realistic options and look at arguments for and against each of the options. Whether you're looking at why the option that's been suggested is the one which will serve the child's welfare best interests. But a more modern example of that is this recent Supreme Court decision of H. W. Children and H. W. Children number two of 15th of june this year by the Supreme Court. And these relate to the issue of proportionality of care orders in relation to Children here and the review of those care orders and issue here was whether or not the judge had actually aired erred in making the care orders endorsing plans for adoption. Where there may not have been proper assessments been done in terms of looking at risk assessments. So what this case really highlights is if as in this case, the threshold were met principally based on matters related to sexual abuse and risk of sexual abuse. Then that in itself doesn't mean that those Children will not necessarily be placed back into care while they were both of the parents, there's still a need to move on to the welfare side and look at the various options that realistic options to look at the arguments for and against and here just because there's been findings made of sexual abuse or these concessions of that and the threshold and that doesn't mean that one then has to rule out the possibility of rehabilitation with either or both of the parents distill that requirement of course to consider that and to contemplate that so to do an assessment of risk to see what the possibility of rehabilitation is and whether it's feasible and plausible in the circumstances and here, the process adopted by the judge was flawed because it did not adequately assess the prospects of these various options to mitigate the risk of sexual harm. So it's a very important case because like it just emphasizes quite significantly the need for ensuring that all options are explored appropriately going forward. Okay, now staying with the position related to finding of fact hearings. Many of you will know that there's been a number of judgments over the last few years which have looked at the issue of threshold concessions and finding a fact hearings. There was a case of H. D. H. Last year, for example, in 2021 in july 2021 by the quarter appeal. What this more recent case of Barnsley, NBC and VW and others identifies is where as in this case you've got sufficient threshold concessions? Is there need to go further and have a finding of fact hearing? So this was handed down by Mr. Justice most in on 29 July this year, It's a case whereby the mother had made a number of admissions which took the case. Well over the Section 31, threshold threshold would clearly met and mother in fact did not oppose the making of final care and indeed placement orders. Father did not oppose the making of care and placement orders. So the judge really did ask himself, why is it that if you've got these admissions, why is it that the matter remains contested? Why is it cannot be dealt with by whether of an agreed order? Well, what the local authority informed the court was that even though there were these admissions and clearly threshold were met and also uh the welfare was not opposed in terms of care and placement orders. The local authorities saw findings on un admitted allegations and and therefore they sought really for threshold for further findings to be made because their viewers that those would be relevant going forward in relation to other Children in the future for example or for the purposes of enable the Children to know the full truth of what went on. So hence the matter had been listed for five day hearing related to admitted admitted allegations. Now this is where his Lordship did say that when one is looking at whether or not to list a matter for a further hearing where as in this case you've got certain on admitted allegations than in carrying out that exercise of that discretion. What are the criteria that one needs to consider? And in particular, there was a previous Stockport N. B. C. And D. Decision of 1995 where Lord Justice thorpe was clear in that judgment to say that the scope and purpose of the proceedings does not extend to protection other Children let alone other onboard Children. So that in itself should not be a reason the Stockport decision was saying now many of you will know that we've got the Oxfordshire County Council and D. P. And others decision of 2005 which really puts together a number of key points which need to be considered in looking to see whether or not to list a matter for a finding of fact hearing and H. D. Agency of last year, july last year by the court appeal, really looked at the Oxfordshire case and really emphasized how important it is to apply those principles in the Oxfordshire case on a flexible basis. But in the H. D. H. And C case, the Stockport NBC case was not cited to it and in fact in HD h it was identified that in fact the court can and will take into account the benefit of having findings made if it may assist other Children going forward. So what should the checklist actually be his mr justice most in question and his lordship did say that of course, he was banned by the court judgment given its binding upon the family court and therefore any guidance that his lordship gave was in the context of being in the family court. And therefore it would not be binding. But nonetheless, it would obviously be a persuasive effect. And his lordship did say that in terms of the significance to individual child and knowing the whole truth. Yes, there are benefits in doing that. But actually, the fact you're in KFC is the fact that they will all have been thresh. There would have already been threshold findings. There would have already been assessments as to risk a lot of the reasons as to why the child has not returned to kill the parents would have already been there anyway. So having further information as to hold truth cannot in itself be a main purpose for investigation and main in itself not be sufficiently strong enough to warrant spending more time money and obviously putting the Children through that process. And the parents of having that further hearing. Also its potential utility in the future case about another child. This in itself cannot be the main purpose of the investigation because obviously we're looking at the position surrounding this particular child who's the subject of the proceedings. Similarly, the public interest in the identification of perpetrators cannot itself be the main purpose because of course, you shouldn't be using the care proceedings to deal with what the police should be dealing with in terms of dealing with criminal proceedings and therefore dealing with uh as a matter of public interest in prosecuting sort of care proceedings should not be used as a way of really dealing with identification of and punishing perpetrators of child abuse. But of course, we've got a separate criminal process which has been set up for that purpose and instead it's got to be based on what's proportional what's necessary and what would be important for the welfare decision. So again, a really, really useful case to look at going forward as far as that's concerned. Now, that then brings me on to some of the other issues surrounding unregulated placements. And this is what a case of K and always particularly health for this case, which looks at the unregulated placement and authorization. Pursuit of course, inherent jurisdiction. This case hanging down recently on the eighth of july 2022 by his honor. Judge moore Defar. And what this case really turns on as well as in this case, you've got a local authority who is seeking to place Children. Uh There were two unrelated cases but they seek to place their Children and their respective moms in an unregulated residential family placement, but one which is unregulated. Then how can that be done in these circumstances? So it's not for the purposes of deprivation of liberty. So it's not that you're asking the court to deprive the child of the liberty and displacement. It's more, it's an unregulated placement. It's not authorized by offstage or the welsh Inspectorate. Can the court authorized the placement in there where the local authority are not permitted to do so. And the local authority applied for the authorization to be done through its inherent jurisdiction, of course, inherent jurisdiction under Section 100 of the Children Act. Alternatively, by directing an assessment of the child pursuant to section 38 6 of the Children Act. So they applied for either of these. So either they invoked inherent jurisdiction of the High court to authorize this and if not whether court was prepared To uh direct this on the basis that is a direction under section 38 6 of the Children. So that was the kind of thinking behind this. Whether or not it could be done through either of those ways. And the court did say that it was accepted by the parties, that the placement was a residential family center, that it did fall within the definition of a care act 2004. Therefore it needs to be registered with officer but had not been done so. And therefore the local authority could not authorize the child being placed with the mother in these in this placement. And therefore they can court do so well. The court did say that we shouldn't be using them having jurisdiction to achieve something that could be done through other means. And here could the court therefore use the route via 386 of the Children Act. Can it be sanctioned that way? And this is where the court looked at a previous decision of re a that was the cardiff decision in 2009. Where at that stage, the then president of family division, Sir James Mumbi did say that if the placement does become unregulated, unlawful and therefore the local authority of the view that the placement needs to come to an end, then if the court feels that there is sufficient mileage in enabling that assessment, that placement to continue on the basis that is an assessment and therefore there is a need for assessment and therefore there's a need for further information to be gathered in the form of an assessment that in fact the court can authorize it. So that's the way to do and therefore it would not be a placement which is then being authorized by the local authority, but instead by the court. So they found that basis, that was one way in which the court can endorse this placement, but it's got to be done on the basis that is an assessment and therefore it's necessary. And the court here did say his honor did say that once the court's power to make directions under 38 6 are engaged in the court would then need to consider whether in fact it would be appropriate to make such a direction here. His honor was satisfied that the placement in this residential placement was necessary. It It was necessary to see whether or not the mother could meet the child's needs and therefore this assessment in that placement was needed. And therefore on that basis, the court could regulate it via 386 other Children insofar as the issue of costs. And of course, it would be a local authority would need to be funding the costs of that assessment in the circumstances and therefore the application to involve the court's jurisdiction was dismissed as it would not be required to be used in the circumstances. Now, many of you will know that last year we had the recommendations of the public law working party that was put together the best practice report and that report was put together in March 2021, I put the link there for you. And just as a reminder, some of the things it sets out here is that there is the expectation upon legal teams to ensure that there is agreed timetables for regular reviews when you're dealing with proceedings pre proceedings. And it emphasizes that there should be a review meeting after the first meeting, the legal aid agency should be looking at reviewing the remuneration available for this work, pre proceedings and therefore recommendation for that to be reviewed. And also for there to be the need for funding in terms of more suitably and appropriate persons that you're attending these meetings pre proceedings. The report highlighted that there is still a lot of inconsistency in the use of police protection and emergency protection orders and bridge time for service syndrome care orders. And I'm sure many of you can relate to this. So when you're dealing with care cases and public law cases, some of you will have experienced that. Uh in some areas you'll find that the local authorities may rely more so on emergency protection orders. In other areas. It's, it's an urgent interim care order, whatever bridge time for service. So it varies quite significantly depending on which local authority area. One is therefore working with them. The report also emphasizes the use of agreed minutes of the advocates meeting. So when you are having advocates meeting, then an agreed minute of the meeting should be filed as a court document before the case management hearing, which may potentially obviate the need for a separate case some positions, so that practices being employed in some areas as some of you will know, the report emphasizes the need for the formulation of the well being, guidance needs service area, so you'll be familiar with that uh in your respective areas and also that the case management order which is put together for the first hearing will be more detailed than the case management order for subsequent orders going forward and for there to be a reduction in the number of hearings, more paper hearings and also for them to be appropriate funding available in that regard. Even for perspective special guardians, There's also then the other reports was also made available at the same time uh in March 2021, that's the best practice guidance for special hardship borders and one of the things that this highlights is the need for initial family and friends care assessments be done as early as possible and therefore if for example, there is a need to extend the proceedings to enable the assessment be done perspective special guardians then need to extend the timetable beyond 26 weeks and that is the case, then that type of case should be taken away from 26 week track. If the court does allow the extension beyond 26 weeks. And furthermore, paragraph 30 of the guardians says that if it is the case that it is felt that there is a need to test a placement for a period of time Before one can conclude on as to whether or not the S. G. order is the more appropriate order in the circumstance or not. So if police felt that there is a need to test the placement, then it's important to bear in mind that if that is done than any period of testing should not be prepared of more than 12 months from the interim placement of the child. With the perspective special guardians. So again, you can see some really important guidance there And also the Special Guardian perspective Special Guardian needs to be told by the local authority of the procedure to be followed in challenging the assessment procedure for party status. So use of section 10 subsection nine in terms of applying to become joined as a party in those circumstances. Right, just for the last part of today, then what I want you to do is also bring to attention a couple of other cases that I thought you would find useful. There's this case of re G child post mortem reports, delays. This was a judgment handed down by the President on the 14th of june this year and what the President has identified is that as you will often have in some of these cases, in public child care cases where you've got a child who may have passed away suspicious circumstances in this case it was sibling a four month or who died in suspicious circumstances following being collapsed at the family home. Then if you're trying to identify how the child's death was caused, then it could take some time to be able to get the post mortem reports made available, particularly in cases where then there's going to be a number of other experts involved in this case. And his lordship did say that the problem is the extreme extreme delay that's now encountered in the preparation of post mortem reports from a pathologist from the suspicious death of a child. And even though it will be conducted by lead forensic pathologist within days of the death material gathered is like to be sent off for specialist analysis by the experts and that's what can cause the delay. Sometimes it could be delay of even 9 to 12 months before the post mortem report is even completed. And as you can imagine, that can then have a considerable impact insofar as them being in a position to be able to conclude matters for other Children who may be the subject of proceedings. So, what solutions are then open to the family court and this is where his lordship said that one has to look at other ways of maybe addressing this. So, could you, for example, instruct an alternative postmortem expert That might be a possibility in some cases. What about use of evidence gathered prior to death? So where there is evidence which is gathered while the child was still alive? So for example, if a child sustained injuries and was taken to hospital before they subsequently died, for example, there were reports already available from the same radiologist, radiologist, pediatrician and all of those together may be sufficient to support a finding of child abuse which may enable a court to proceed on that basis without the need for a cortical further and consider postmortem evidence. So that might be a possibility. That's one of the other suggestions that the president suggested that we should be thinking about. But in some cases such as this one where there was uh there may not be any evidence applied to death which therefore would mean that one has to therefore rely upon the postmortem report and therefore the only way to deal with that is is then to await the full post mortem report before one can then go further and then deal with issues of risk assessments and welfare decisions. Thereafter, four surviving Children. So obviously this is highlighted real issues with post mortem reports and obtaining of them. And finally there's this case relating to third party costs orders to Peterborough Council, another's case of june this year by mr justice paul and what this case was about was one where there was a third party costs order made against local authority and private Children cases. So here it was an adult daughter and her partner who decided to bring an application of child arrangements live with so that her younger siblings could live with her. So she had moved out from the family home. She was living with her partner and she sought orders that her younger siblings lived with her. On the basis that she claimed that her mother was abusing alcohol and neglecting. Her younger siblings had been made subject to child protection plans and she had left the family home with her partner. So like I said, she applied for subsequently obtained a child arrangements order specifying living with. Now in terms of what the local authority had done, they had sent a letter to Children's parents basically pre action letter. There was initial P. L. O. Meeting. There was then the application by the adult daughter and her partner for child arrangements order. The court made that order. The court had directed a section seven investigation for the local authority to do a report and the local authority did do the report and state that they were not looking to issue public law proceedings because I didn't feel that they were warranted. Subsequently, the court did feel that maybe the local authorities should have done. So they said that they had expected public proceedings to follow the direction of Section 37 for the local authority to carry out further investigation And had that here in the local authorities response to its section 37 was such that they had decided not to issue public law proceedings. And again, the court expressed their surprise to that and they would have thought they thought that the very least a local authority would have lodged an application for a supervision order. So this is where, like I said, the adult daughter and her partner sought the child arrangements order specified living with. But because they had taken those proceedings and the local authority had commenced care proceedings. They saw costs against local authority and as you know, when it comes to ordering costs, the court has to be satisfied that the conduct on the part in this case of a local authority has to be reprehensible. Well, here, the court said that that simply was not the case. They couldn't be criticized because clearly this wasn't conduct which they could be criticized. And they had taken a view as to why they said that public proceedings were not appropriate. The circumstances just like the judge had given a view as to why the judge felt that public proceedings were appropriate. The local authority went touch to make this decision and suggest why it wasn't appropriate. That was not an unlawful decision on their part. Second, it was argued that local authority had been instrumental and to remove a lot of Children from their parents, but clearly that has not been the case. They hadn't got parental responsibility. The Children were not accommodated the Children. Local authority did not remove the Children and it wasn't the case, but it was unlawful for them to to have done so in the circumstances, so they hadn't been instrumental in that regard. And finally, in terms of funding, the court said that it is true that yes, the adult daughter and her partner had to incur legal expenses in seeking the child arrangements order. But that doesn't mean that those costs should now be met by the local authority. If Parliament has decided that funding would not be available in these circumstances and it means the most tested, which here it was uh then that's what needed to be pursued on all circumstances. And the fact that the applicants can went through this process and they need to be commended for their conduct that does not nonetheless, and touch them to obtain funding in those circumstances. So one cannot see costs against local authority on that basis. So, the decision was one where the judge had applied the wrong test and looking to see whether or not to actually on that basis or the costs against local authority. There was not reprehensible behavior. The local authority had not been instrumental in removing the Children and you can't use a non cost order, nonparty costs order as a device to provide public source of funding for parties, legal costs in private family scenes and therefore, a non party cost order made against local authority was in fact set aside. Okay, so there we are. So that brings this session to an and in fact the course to an end. So you can see I've spent a fair bit of time going through with you some of the key developments and updates in both private and public Children's cases over the course of the year and also looking at some aspects of guidance in that regard as well. So I hope it's been a useful course for you. Can I thank you very much indeed for listening and I speak to you next time. Thank you very much. Bye for now.

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Children Law Courses, Children Law CPD, Private Children Law, Public Children Law, Adoption, Inherent Jurisdiction, Injunctions, Children Law 2022, Case Law Update 2022, Children Law Reaccreditation

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Safda Mahmood

3089 Users
170 Courses
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Safda is a senior solicitor, with a public authority, having had practiced in both Private Practice and Local Government. Safda is on the Law Society Children Panel and specialises in Children Law and Adoption. He delivers training across the country and writes regularly for various journals including Family Law Journal, Legal Executives Journal and Law Society Bulletin.

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Chinonso Ijezie 2 years ago

Contents are very educative but the volume of the OnDemand recordings is very low.

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