Hello and welcome back, everybody. Nice to welcome you back to the second part of this live webinar through data law. This is the private and public Children update for autumn 2023. So like I say, this is the part two. So I'm continuing from where I left off. And uh as you know, with this webinar, I'm going through with you uh a number of updates where we're going through some of the key developments in 2023 particularly the latter part of 2023. I'm covering private and public law cases as you know, in the first part, I covered private law in some detail and we also spent some time looking at some of the into relationship between that and injunctions in particular. Now, what I'm gonna do on the second part is I want to develop them by looking at some of the aspects on the public law side, which will also involve looking at some of the aspects around the use of the inherent jurisdiction and also which will involve looking at some aspects uh surrounding adoption as well. And we're looking at case law practice, guidance and legislation in this field with you to them, providing you with that update, whether you're acting for parents, Children, extended family members or local authorities in that regard. I'm looking at the laws of October 2023 right? So let's look at some of the updates in so far as the public law is concerned then as the public Children law developments and this one case I wanted to pick up on uh decided earlier this year then was uh the position surrounding the use of emergency protection order applications. So this is the case of a local authority against Mrs X. Mr X Children and their guardian. And as many of you will know, we haven't had many cases at all on EP OS and medicine protection orders over many years. And this case really reminds us about how important these orders are, but more significantly how it's important to ensure that the procedure is followed as it should be. Uh So this case involved two Children aged six and eight. Until recently, the mother was working as a healthcare assistant in a GP surgery. And uh the GP was not only the employer for the mother, but also was her GP as well. And this is where the practice nurse manager told the GP that the mother told her that she had breast cancer, which did surprise her GP because obviously not only been the employer but also the G the GP for the mother was was of the view that. Well, she hasn't told me that. And the GP thought there's no evidence that he knew with support of this. Uh and uh en enquiries were made and this is where some of the comments that mother had made at work about her son being seriously ill made. The GP think that maybe mother was showing symptoms of fi I that the fabricated induced illness or induced illness by carers. And this is where carers may uh be fabricating illnesses with Children, which then necessitates unless intervention order may deliberately induce illness to Children, which then necessitates medical intervention. So the G the GP was concerned that the mother may be exhibiting these symptoms and potentially therefore, the Children could be at risk in that regard and that's where referral was made. So sort of GP made a safeguarding referral and this is where the judge specifically said that in relation to matters relating to induced or fabricated illness, there was the guidance put together by the working together, safeguard Children uh back in 2008, which was part of the working together guidelines. And it's important to make sure that there is a safeguarding lead that proper inquiries are made. That one mustn't kind of jump to conclusions, one must get proper evidence in this regard. So those are some of the things that he set out in this guidance. What the local authority did is there was a meeting that took place and at that meeting. It was felt uh the, the GP was there who took the lead, there were other professionals there and it was felt that there was sufficient concern that the mother may be subject your Children to fi I and therefore, a decision was made to commence care proceedings. And so uh immediate proceedings and that's where a decision was taken to bring an application for an emergency protection order under sections 44 and 45 of the Children Act. So that's exactly what happened. The local authority pursued an emergency protection order. The family were subjected to this in the middle of the night, the police and the children's services were there seeking for the Children to be removed. And at the hearing itself, what was of concern was that neither the written application for emergency protection order nor the actual lawyers who applied in the accompanying note referred uh the court to the two leading authorities on EP OS. That's the case of ex counsel and B of 2004 and ex of 2006. The first case had it done by Mr Justice Mumby as he was then the second case by Mr Justice mcfarlane as he was then both of these cases, many of you will know are very significant because they emphasize the fact that uh with these orders uh that are being sought in these circumstances. One has to make sure uh that um uh by their very nature they are obviously very draconian in, in their, in their nature. These orders, one has to show extraordinary compelling reasons, case of emotional harm, they really want emergency protection orders. Cases of fi I for example, you need to make sure that the evidence is clear as compelling. It's precise. And sadly, these these cases are not, were not brought to the court's attention. As the local authority had subsequently lodged a care application, there was a contested care hearing, but as they then started unraveling the evidence, it became clear that actually there was no evidence at all that the mother was suffering from a psychotic illness. There's no evidence at all to support the assertion that the mother had fabricated and induced illness in her own Children. And this is where the local authorities subsequently withdrew and no longer sought a fact finding an application was made for costs. And even though the court said under part 28 uh the court uh generally can make such order as cost as they see fit. But you're looking at really reprehensible and reasonable uh behavior here on the facts. The court was satisfied that the way in which the proceedings were handled and dealt with in a manner in which these proceedings were sought. It was only right and proper that a cost order was made and that's what happened in the circumstances. So again, this case very much emphasizes the importance of making sure that one uh really should be making sure that the evidence is clear before deciding to go particularly for urgent orders. As in this case. Now, this other case of 27th of June this year, the case of VE a childcare and placement orders is one which emphasizes the fact that when necessary, the court will of course order psychological assessments. So even though I know over the last few years, there's been a lot about uh the court's emphasizing the fact that sometimes applications to instruct experts are made inappropriately and those applications should not be granted. But of course, there will be cases. And this is one of those cases where the order should have been made. A part 25 application should have actually been uh permitted. And this is a case where the mother in fact appealed against the care and placement orders that were made in respect of her son. Age one, the local authority in the guardian opposed by where background. This is a case where the mother through her teenage years uh throughout her teenage years has suffered anxiety and depression. She had had suicidal thoughts regularly. Uh She had self harmed. She had a series of short term relationships with men, some which were abusive and she had been assaulted uh for for uh during her teenage years. And this is a case where mother did become pregnant. Uh There was a psychological assessment had taken of her before the baby was born. And the psychologist described her mother as being gone over to regulate her emotions. Uh There was suicidal radiation, there was a question mark as to whether the mother may be autistic. Uh And uh this is one where uh there were, there was more information that would be uh assisted with the child was placed with grandmother. The local authorities started care proceedings but later grandmother withdrew from the assessment process. Mother was ruled out as a carer, she applied for a psychological assessment. And one of the main reasons as you can see here why mother was seeking a psychological assessment was this. She was arguing that given her background, the multiple multiple diagnosis she had, she argued that a psychologist was needed to instruct her pos her complex psychological needs risks and the timescale of any treatment that would be required. And this it was felt could not be properly addressed in the social work regarding assessments. Now, as you know, when one is applying to instruction, expert, one of the key questions under section 13 7, that's asked is, can this information be obtained through the any other means or is this information already available? Mother's case as you can see here was, well, it wasn't already available, it was needed. But secondly, this information could not be obtained to the guardian or the social worker. So you can see some very, very strong arguments that mother was advancing here as to as to a need for the, uh the psychological assessment and mother was arguing that without this psychological report, there was going to be a clear gap in the, uh the evidence in the circumstances. And uh mother did say at the, at the hearing, a report from mother, psychiatrist said that she had not self harmed for some months. And as long as she continued to take her medication, engage with mental health and the prognosis was good. Uh, The local authority didn't oppose necessarily the uh request and, and the application for the part 25 psychological, although they did question necessity for it. Uh The judge refused, the application didn't feel that it was necessary. And that's where the local authorities subsequently lodged their placement, application and care and placement orders were made. And it's those orders that the mother in fact appealed. So she filed her notes of acting and you can see here that she raised four key arguments as to why she said that the decision was wrong. She said that the court had failed to analyze all the at all the credibility of local authorities evidence, given finding was made and they misled the court at a previous hearing. There was there was she stood a clear and identifiable gap in the evidence and the court was wrong to conclude that there shouldn't be a further assessment. The judge failed to analyze the level of nature of the support that the mother required in the circumstances. And the judge didn't really evaluate the placement option with the child with the possibility of a child being in the care of the mother. And in so far as the position with the expert, what the court has said did say that. Yes, of course. Over the last few years, there's been a lot that has been said insofar as the position with court directed experts, there's been concerns raised about the excessive instruction of experts. There was obviously the Family Justice Review parliament dealt with this. There was the Children and families act that was brought which brought in a very tighter test insofar as instructing experts. Uh There was uh the need to exercise vigilance when dealing with applications to instruct experts. The president a few years ago handed down that memorandum on the fourth of October 2021 called the presence memorandum Experts in the Family Court where the president reminded all of us that expert evidence will only be allowed where it's necessary, which is where it's demanded by the contested issues. It's the test isn't it's reasonable desirable of assistance. It's got to be a lot more than that as set out in the HL case. So obviously, there was a lot being said about uh making sure that there was not the unnecessary usage of experts. And his lordship did say that sometimes parties have been too quick and apply for experts and they shouldn't have done. But here, the court said that was not one of these cases. In fact, here on the facts, the court said that this was a case uh whereby you had a very young mother uh involved in KFC concerning her first child. She had applied for a psychological, it wasn't based on speculation, it wasn't based on hope. There were solid foundations here given her circumstances, her personality, given the serious abuse, the trauma she'd gone through the history of self harm, the lengthy engagement with CAMS throughout her teenage years, the diagnosis of emotionally unstable personality disorder and possibly her being on the autism spectrum. So when you put all of that together, this was a case where there was a need for global psychological assessment of mother in the circumstances. And the court said that mothers uh lawyers were fully justified in making a part 25 application. It was crucial under the facts to have this assessment without it, the court could not make an informed decision. So on that basis, that had to be done, which meant the clear and placement orders had to then be reconsidered. Of course, it would mean that there would be obviously further impact in terms of delay. But that delay was purposeful was necessary on the facts in the circumstances. It's a very, very important decision. Now, when we are getting judgments handed down by the courts, it's very important for the judge to make sure that that judgment is appropriately set out. It's reasoned, it's thorough it's clear and it's one which really puts together all the relevant aspects. And this is something that was emphasized by the Court of appeal. Recently, in this case of RE T and others, Children adequacy of reasons handed down by the Court of appeal on the 29th of June this year, leading judgment by Lord Justice Baker. And it's a case whereby uh there was a big question mark as to whether the judgment that the judge had written as as uh handed down was one that was adequate within these care proceedings. And the mother in this case lodged an appeal to a number of grounds of appeal. One was it was being argued that there was a flawed approach and inadequate reason in the judge's judgment, uh having regards to seriousness of the allegations. This was a case where there was a lengthy fact finding and evidence had been called over a number of days. There was an argument that they had been failure to set out the key authorities and they had been failure to set out the key guidance and authorities. There were factual errors and misunderstandings. It was argued in the circumstances, the wrong decision was made the evidence to support the findings that were made against a mother. And also there's a failure in giving the judgment procedurally because the judge failed to provide a written judgment and instead providing an ex temporal judgment in a very limited time frame. And on the facts, it was said that that was inappropriate. Now, the court did take the opportunity to remind us in this judgment as to what does make a good judgment or a specific reference to the case of RE B of 2022 whereby Peter Jackson, Lord justice Peter Jackson gave us some guidance on that. So what does make a good judgment is one where uh it should set out the background of the facts, the issues that need to be decided, it should set out the legal tests that need to be applied. Uh It needs to refer to the written or law evidence. So it's not just kind of summing up every possible bit of evidence, but it's got to make reference to what the evidence was, the written and all evidence in that regard. It should record each party's core case on these issues. It should be setting out any findings of fact that are made on any disputed matters and it should evaluate the evidence as a whole and the judge should be setting out what wage they are attaching to the evidence. And finally then setting out the judge's reason explaining why they've gone with one option rather than the other. So you can see those are some of the key things that need to be set out in a good judgment. But sadly here that had not been done here, the summary of background was incomplete. There was no reference to the history of the family's involvement in children's services. Judgment did not identify the witnesses who gave all evidence didn't summarize that there was no reference to lengthy submissions that were prepared. Uh There was a failure to have regard to the child's evidence. There was no analysis of the critical issue of timing and the credibility of the allegations in that regard. There was no reference to the alleged breaches of the A B evidence and the impact that was going to have the child had been assessed by a consultant psychiatrist. Uh This, the psychiatrist hadn't been called to give uh oral evidence, but the assessment report were not mentioned in the report. So you can see a number of issues which really should have been identified in the judgment, but which were not. But I think one of the key things I would suggest in this case, which the court of appeal were very concerned about was the position with the exemple judgment. The court accepted of course that there is pressure on the judges. Of course, there is and there is a limit on that. Uh there are finite resources, they do face difficulties and challenges that that was obvious on the facts. The judge was short on time on a day in question. But here the issue was, should the ex temp poor judgment have been handed down? And uh here it shouldn't because according to incorporated Council for law report of England Wales and Poor judgment is one that's given orally at the conclusion of a hearing rather than one that's been reserved and delivered at a later date. This was a reserved judgment. This is one that was given orally six months after conclusion of the evidence and four months after receiving written submissions. The next Temple judgment is a short judgment given very, as soon as the evidence has been heard, all submissions have been made and at the end of the case, this was not one of those cases. So therefore, it shouldn't have been dealt with on that basis. Now, the court did say that sometimes we can rectify deficiencies in the judgment. We can see what uh references there were to certain aspects and try and deal with it. But here they were, they were just too significant in that regard and the analysis wasn't there to enable those deficiencies to be remedied. And if on that basis, the judgment or decision that had been made had to be set aside in the circumstances, you can see the thinking behind that. Now, this other recent case uh looks at the issues surrounding Children at home under a care order and this is really looking at final care orders as opposed to interim care orders. So this is the case of JW child at home under care order handed down by the court of appeal judgment by the president, Sir Andrew mcfarlane on the fourth of August 2023. Now the issue here. His lordship said was this. He said for a number of years, there's been a different approach across courts across different regions across the world as to whether they should be concluded on say a care order at home or whether it should be a supervision order, whether it should be no order in those circumstances. And the president said that really, there needs to be more consistency of approach insofar as uh this is concerned. And in particular, the president referred to the decision that was handed down in 2014 by his own uh Lord Justice Baker at the time whereby uh the issue was that if say you've got a child placed at home with parents under a care order, then only if only then other than in in the true emergency, if the local authority were looking to remove that child from her parents, well, they should be given notice indeed at least 14 days notice to the parent of the intention to remove the child. And that then gives the parent the opportunity to bring the matter back before the court, possibly by way of injunction to prevent the removal or maybe even to apply for discharge of the care order under section 39. So other than a true emergency in all other cases, the local authority should be given at least 14 days notice of that intention to remove. Now, on the facts of this case, this was one where there were three Children. The mother had met her partner and the couple married and it was only after the marriage that the mother was told by social services that her husband had been convicted some 15 years previously, of offenses of making and possessing a large number of in these images of Children. He had been made subject to a sexual harm prevention order prohibiting him from having any unsupervised contact with Children. So obviously, you can imagine how mother must have felt, becoming aware of this. And once she became aware of this information, she agreed to sign up to a safety plan where her husband moved, moved out of the home. But as you can imagine, this wasn't going to be easy for her. And the local authority became concerned that she wasn't adhering to a safety plan and her husband was having an unauthorized contact with her and the family. So a local authority decided to commence care proceedings. And it was the in those proceedings that uh even though the local authority had the benefit of an interim supervision order, uh the Children remained at home mother under that interim supervision order. And the question and at the end of the case was how do we conclude that if the Children are going to stay at home with mother, how do we conclude? Is it supervision order? Is it no order? Is it a care order? And that's really what the issue was uh in this matter and a care order was made. But the mother did appeal and that her argument was that, that was disproportionate and the app inappropriate order in the circumstances. And she said, uh, the court shouldn't have made a care order. And in the alternative, she said, rather than making a final care order, what they should have judge should have perhaps done is extended the proceedings to allow the mother's ability to protect the Children from a partner to become more established. So that way the court would then have that further information whether it be to then deciding not to uh not to make the care order. Now, the president did go through law on the position of placement under a care order. So of course, when local authorities do intervene in the lives of Children and families, you got section 22 of the Children Act in, in England where looked after Children. First instance, local authorities should be looking at placing, we have to take them back to parent if not with somebody who had parental responsibility before the order was made, if not, somebody ought to live with order, if not with connected persons. And then it goes on thereafter. In Wales, you've got similar provisions set out within section 81 of the Social Services and well being Wales Act of 2014, there's also the permanent provisions, of course, since the amendments that came in a few years back, the only part of the care plan that the local authority that the court rather needs to be satisfied in is the permanent provisions, who are you placing with? Is it with parent? Is it with family members? Is it adoption fostering or otherwise? And also contact? And the decisive factor in deciding whether to make a care or supervision order is one of protection of the child that was emphasized in number of cases such as this case of VD care or supervision orders of 1993 amongst other cases. So is that strong order of necessary to protect the Children? Could parental cooper operation only be obtained by the M order? For example, is it really necessary to share pr or any other way? So those are the key questions you need to ask yourself. And what his lordship said is that when you have got say a care order in force with the child living at home, then if the local authority are planning to remove, if they feel that they need do need to remove, they're in line with that de case that I mentioned, unless it's a true emergency, they need to be given notice. And as I mentioned, that then enables the parent to apply for uh legal aid, perhaps to look at maybe discharge of the care order or maybe even a prohibited injunction in the circumstances. And this is where then the president specifically referred to the President's uh public law Working Group guidance uh headed up by Mr Justice Kan. And uh the group identified the need for exceptional reasons to justify the making of a care order in those circumstances. So when one then looked at all these circumstances, that one then has to ask themselves whether it was appropriate to make the care order uh in the circumstances. Now, what about visits to family home? So mother's case was that the judge said that exceptionality was met here on the basis that the local authority needs to share pr uh because the local authority could then carry out the visits under the auspices of the care order. Yes, under a care order, a local authority is required to uh visit Children every six weeks. But it was argued that in fact, that's open to a local authority anyway, to visit Children more frequently, whatever order there is, visits were not a unique feature of a care order or sharing parental responsibility. In fact, even if there was a supervision order, they may well need to visit. So that wasn't unique to care orders in that regard. And here the concerns were by the local authority that mother was and may continue to associate with her partner who was a risk to the Children from his past. There was that risk of grooming in the circumstances but did the circumstances justify uh exceptionally a need for care order at home? And his lordship said no, in the circumstances set against the background it was very difficult on the facts to see the basis for holding the situation on the facts was exceptional and rare when you look at other families where Children are placed at home at the end of care proceedings in the circumstances, the judge said there doesn't seem to be any justifiable reason, any additional power. The judge was contemplating that the care order would give the local authority to maintain adherence to safeguarding plan or to be able to protect the Children in circumstance. And therefore, a judge had erred in making a care order at home. And therefore on that basis, the appeal would be allowed and supervision orders would be put in place instead of the yet the care order. So you can see it's a really useful case which really uh emphasizes that key point there. Now the position with reopening findings is al always a very important consideration when we're dealing with these matters. And the most recent case on that is this one of re J Children reopening. Findings of fact, this was handed down by the court of appeal on the 28th of April this year leaving judgment by Lord Justice Peter Jackson. But what's particularly interesting about this case is what the local authority was seeking to reopen are non findings. So in fact, findings had not even been made, but then they wanted to reopen that decision to see whether the findings should now be made and where the new evidence didn't even relate to that child. In fact, it related to a separate child altogether. So this was a case involving four Children. Uh The older two Children were the Children of the mother and the father one. Whilst the younger two Children were the Children of mother and father two. So the Children, all four Children had the same mother but different mothers, you had uh the father of the elder two and then the father F two of the younger two. And what happened is in 2019, father, I was accused of sexual assault by his stepdaughter. Ok. So there was those allegations were made. They were, uh, Kev Sun's Broad, they were criminal, Sunni's board. He was acquitted and all fines were made against him. But then a few years later in family court proceedings involving father two again and uh, uh, the, uh, the stepdaughter's mother, the court made no findings against him, uh, in, in relation like, say to, to dos proceedings in that regard and the child did not play any part in, didn't give any reason. So no findings were made. And if that child a lived with the mother as their child, uh, uh a a in those circumstances. But later what happened is in 2022 there was an allegation of sexual abuse made against F two by his daughter. So just kind of summarizing this. You've got F two, there's an allegation made against him. Uh, in 28 19 by his stepdaughter, criminal proceedings abroad, he's acquitted care proceedings abroad. No fines are made against him. Then later, a year later, uh his daughter makes an allegation against him of sexual abuse. And this is where now the local authority wants to reopen the previous k scenes related to his stepdaughter, even though no fines were made, he want to reopen that in light of these fresh allegations now now made by his daughter. Ok. So that was the issue. So they sought to reopen those previous proceedings in that regard. Now F two, the court did allow that the court did allow that to allow for global analysis to be done. But this is where F two, he appealed and his main ground of appeal was this. He was arguing that if the previous non finding was reopened, he would effectively be defending the allegation for the third time ie had been acquitted initially after trial in a criminal court. Then, uh the issue of sexual abuse had been raised in the previous care case surrounding of that child. So there had been two previous hearings, one criminal, one civil and no findings or convictions had been made against him. And now the local authority wanted to reopen and therefore, it is the third time effectively that he would be tried on that. Uh So he, he appealed. Uh, his appeal was opposed by the other parties like the local authority mother or the one and the child and also the children's guardian. So the appeal was opposed by the other parties. Now, this is where the court specifically referred to the law on reopening of findings. And one of the leading cases, many of everyone know is the case of ve uh Children reopening of findings. Uh The the case of 2019 where the court did say in that judgment that there needs to be solid grounds for believing that the early findings require revisiting. And that's part of the evaluation process that needs to be done. It's not a substitute for it. But one of the things the court did say here is you can't reopen findings just because one didn't like the early outcome or the person missed a deadline. So here, if for example, a local authority missed the appeal deadlines or they didn't like the outcome, you can't reopen just because of that. That's where obviously the principle of Judy Carter comes in in that regard. But in many cases where there is uh a applic where there are applications to reopen, there may be new evidence that becomes available. Uh But here, that wasn't the case because there was no new evidence in relation to his stepdaughter. The new evidence was more in relation to the other child, ie his own daughter. So that was the issue. But nonetheless, the two matters were linked, obviously, he was the, he was the same father. There was an allegation made by one child. And then subsequently, there was an allegation made by a subsequent child thereafter. So the argument was that there was enough of a connection to look at the family dynamics and then to reopen the previous position. So that was what's been suggested by the uh local authority. Did it matter if the previous hearing had led to a non finding as opposed to finding or exoneration? The court said, no, that doesn't prevent the court from reopening. What about the fact that the child now wanted to give evidence? Ie if child a ie his stepdaughter wanted to give evidence, is that enough? And the court said, no, that's not enough to reopen. What about the fact that the child that the allegation was now made by Iedie, his daughter, uh, is the allegation comes from that child, is that enough to suggest that you will reopen and that in itself wouldn't necessarily be enough. But the court did allow to reopen and this was on the basis that they would allow a global factors m fa factual matrix to be considered. So, uh, a reopening will allow an unhindered consideration of the alternative basis threshold. So to really, you know, catch then achieving if possible a global factual matrix for the Children. And therefore, looking at really the global situation in relation to the relationship, uh that the father had with his stepdaughter and also his daughter and looking at the family composition in those circumstances. Now, the judge, the court of appeal did say that if we do allow this, which they did, then of course, it would be hard on F two that he should be facing the prospect of responding to A I Ds allegations for third time. But his interests were not the only ones in play here. Of course, the court would have to look at the, uh, the wider issue there and if on that basis, the court dismissed his appeal. Now, this other case that I wanted to mention the case of VC looks at the issues surrounding separate representation. So this is particularly relevant for some of you who will be on a Children accredited scheme. Those of you who will be appointed as 16.4 lawyers. Uh And also when you are then taking instructions from guardians and also when you're uh separately representing Children in, in public law proceedings, and what this case emphasizes is, in fact, it's the court who's the final arbiter in determining if the child has capacity to instruct it separately. So it's the case of VC ability to instruct solicitor handed down by the court appeal on the 26th of July this year leaving judgment by Lord Justice Peter Jackson. And this was a case involving a 14 year old. The issue was whether or not this 14 year old should be able to instruct his own solicitor in proceedings that were brought by his parents to discharge care orders in relation to both him and his sister. Then aged 13, now, he had been previously assessed by psychiatrist uh in relation to private law proceedings between the parents. And it was said that uh he did not have capacity to instruct it separately. Uh given his views even though they were diff differing from those of the guardian in terms of competency. It was felt that uh he was not competent to instruct his own solicitor. His views were very much uh clouded by the position that his father had taken in. In particular, the influence that his father had subjected him to in terms of alienating behaviors later, uh there were care pursuers brought, there was a discharge application by mother. The psychiatrist was once again instructed to assess his capacity, a 14 year old's capacity and the psychiatrist still held the same view that there was a high risk of emotional damage. If the child did instruct his own solicitor, he would be more, he would feel even more responsible for anything that his father was uh saying or doing uh or be angry about. And this is where subsequently the judge then decides to meet with the child. And as many of you will know, there is obviously the guidance of April 2010 which allows a judge to meet with the child. But that's for the purpose of enabling the child to understand the proceedings, the process and what what uh what is happening not for the purposes of the child to assess competence. Uh The judge to assess competency. The meeting itself lasted for one hour 25 minutes in the presence of Charles Lister and the foster carer. And this is where following that meeting, there was an application made by the uh solicitor for a child for separate representation. And this is based on the meeting that the judge had with the child and the uh the views that the child had expressed, uh it was said that the child had engaged with the judge and did understand the proceedings could articulate and provide responses. And this is where it was argued that the child was sufficiently competent to be able to instruct separately. So, in fact, the court did allow that to allow uh ultimately for the child to then separately uh instruct, but that's what led to the appeal. And in fact, the mother said that this was an error on the part of the judge. The judge relied inappropriately on her own evaluation of the child from meeting with him. Uh And uh the judge relied upon her own evaluation without the parties even being aware until after the decision had been made. Uh, there was insufficient weight on the conclusions of the psychiatrist as to why the child wasn't competent to give instructions in those circumstances. And there was insufficient consideration of the extent to which the child had been alienated by the father an impact that had on his understanding. So on that basis, it was argued that there shouldn't have been a case of separate representation. Mother argued that it was improper for the judge to have conducted the meeting with the child the way the judge did. Uh and really uh insofar as uh using that to assess the child's competency. And the court did refer to the case of VW where if, as in this case, one is arguing that uh because of alienating behaviors, the child effectively may be the mouthpiece uh in those circumstances of the parent, then that in itself doesn't necessarily mean that they may lack understanding. One has to be very careful if one is going to be running that case. But here on the facts, the decision to allow separate representation was in fact wrong on the facts. It was said there was an error on approach for a number of reasons. One, it was the judge's role to adjudicate not to assess, but she made her own assessment of a child's ability to instruct in a manner which we went well beyond the use of meetings in these circumstances. It shouldn't have been done in the circumstances. And it was compounded by the fact that uh the judge did not disclose the parties, the reliance she was planning uh to place on her own being those circumstances. So that was not sustainable in that regard. And thirdly this, uh the judge described the child as very mature and insightful. But the expert who had seen the child twice had said that the child had absorbed his father's damaging belief uh structure in the circumstances. And even though the judge preferred her personal assessment rather than that of the expert, although the judge can detract and go against the opinion of an expert, the judge had to set out why that is. Uh but she had given no reason for rejecting the expert evidence in that regard. So based on those factors, the court did say that the order uh would be set aside whereby the uh the child was to be able to separately instruct. It's a very, very important decision. You can see there. Now, many of you know that when you're dealing with deprivation of liberty cases where you're inviting a court then to use section 100 of the uh Children Act to invoke the inherent jurisdiction. And this is where it's very important to make sure that uh local authorities in this instance, if they are looking to place a child in a placement, are ensuring that that placement is one that uh is registered or in the purse have been registered with Ofsted in, in England or with the Welsh Inspectorate. And this is this recent guidance that's been handed down by Ofsted in relation to this about placing Children uh in relation to deprivation liberty Orders. This was handed down on the 14th of August 2023. So what this emphasizes this one is uh a local authority to place a child. They should check whether the placement is registered with Ofsted in England or the care inspectorate in Wales. Uh And it's a legal requirement at a children's home in England registered with TED and a care home in Wales, registered with the CIW. And in fact, it's defense to manage your operator, children's home if one is not registered. So it's emphasizing that and it's emphasizing that that registration should take place. The provider should inform the local authority about the steps to take to register in those circumstances. Now, just this week, in fact, uh the president has now confirmed following on from the views from the President's change of July 2023 that rather than the label um dolls court, which was started on the fourth of July 2022 the more accurate label now is the National Doles list. So many of you will know that Dole's applications will be lodged uh in the uh Royal Courts of Justice and the national do list applications will continue to be issued there. But those cases where there may be a number of hearings going forward, they would then be looking to be transferred to the relevant regional center and allocated to a local judge there. And the president also wants to make sure that there is the reduced requirement on the court with respect to monitoring or policing the registration and tied in with that uh coming into effect in a few weeks time in England, we will have the supported accommodation. England regulations of 2023. These will be coming into effect on the 28th of October 2023. And there's also ad fe guidance which relates to this and this is emphasizing that uh support accommodation, which is that for Children aged 16 and 17, as well as those Children who are care leavers when these regulations come into play. Uh what it provides for uh is that in these circumstances, if the child is going to be placed in these other arrangements, then providers must make sure that they have submitted application to registered uh that uh that placement with Ofsted by the 28th of October 2023. Uh after it states it's an offense for provider to provide supported accommodation without having had complied with this provision. So even though registration has been optional since 27th of April this year, it's now going to become mandatory as from the 28th of October this year and Austin are gonna start carrying out inspections from April next year. So again, very important to make sure that these provisions are being complied with. And finally, I just wanted to remind you about the position with the leave to oppose adoption. Uh Guidance or the most recent case at the moment is the case of re ma child leave to oppose adoption whereby here. Uh Lord Justice Jackson effectively said that if you are applying for leave to oppose to make an adoption order, it's a two pronged test. Has there been a change in circumstances since the placement order was made and then taken all that into account. Does this child's welfare require the court to revisit the plan for adoption in those circumstances? Ok. So there's a two pronged test, changing circumstances and then seconded child welfare insofar as that's concerned. And one of the things this case also emphasizes is to enable the judge to see what change there has been. It's very important that when the court is handed down the placement order, they should order the local authority to obtain a transcript of the judgment unless it's handed down a written version or made other arrangements. And the same should also apply when there's a final care order order made. Although the court wasn't focusing on that in the appeal. Ok. So there we are. So you can see a number of key updates, insofar as the public childcare is concerned as well. You can see a number of updates insofar as that's concerned. Ok. So I hope this session has been useful for you. Can I thank you very much indeed for listening and uh I'll speak to you next time. Thanks very much. Indeed. Bye for now.
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