Public Law Children's Seminar by no5chambers

Contents

Public Law Children’s Seminar

Friday 8th November 2024

Wolverhampton Racecourse

Section 1

Programme – Page 2 - 3

Section 2 – Page 4 - 6

Welcome

Presented by Lorna Meyer KC

Section 3 – Page 7 - 20

Representing Vulnerable Parties

Presented by Faye Edwards

Section 4 – Page 21 - 29

Necessity and the role of the expert Presented by Heather Popley

Section 5 – Page 30 - 43

Transparency – Behind closed doors

Presented by Naomi Dean

Section 6 – Page 44 - 46

“It’s all gone wrong”: Appeals - procedure and practical considerations Presented by Orla Grant

Section 7 – Page 47 - 66

Case Law Update

Presented by Grace Gwynne & Rhianna Manani

Section 8 – Page 67 - 80

Are children at risk from substance misuse?

Presented by Paul Hunter

Section 9

Members List - Page 81 – 82

Programme

Public Law Children’s Seminar

Friday 8th November 2024

Wolverhampton Racecourse

10:00 – 10:30 Registration and Breakfast

10:30 – 10:40 Welcome

Lorna Meyer KC, No5 Barristers’ Chambers

10:40 – 11:25 Representing Vulnerable Parties

Faye Edwards, No5 Barristers’ Chambers

11:25 – 12:10 Necessity and the role of the expert

Heather Popley, No5 Barristers’ Chambers

12:10 – 12:55 Transparency – Behind closed doors?

Naomi Dean, No5 Barristers’ Chambers

12:55 – 14:15 Lunch

14:15 – 15:00 “It’s all gone wrong”: Appeals – procedure and practical considerations

Orla Grant, No5 Barristers’ Chambers

15:00 – 15:45 Case Law Update

Grace Gwynne & Rhianna Manani, No5 Barristers’ Chambers

15:45 – 16:05 Refreshment Break

16:05 – 16:50 Are children at risk from substance misuse?

Paul Hunter, Forensic Testing Service

16:50 – 17:00 Q&A followed by drinks

Lorna Meyer KC

Call: 1986 | Silk: 2006

"Lorna offers outstanding representation and advice. Her advice is detailed, robust and always thorough. If senior counsel is required, Lorna would always be first consideration." "Lorna provides excellent client care combined with incisive understanding and excellent advocacy skills." "She is composed and completely in control of the courtroom - judges listen to Lorna."

Chambers UK 2023

Similar skills are also engaged for work pursuant to the High Court s Inherent Jurisdiction involving adult children under a disability and issues concerning the withdrawal of medical treatment from children.

Lorna is co-author of the book Challenging and Defending Local Authority Child Care Decisions , which was published in March 2013.

Expertise

Family

Lorna has forged a strong reputation in all areas of children work. Her regular appearances in the High Court and Court of Appeal are testament to the energy, detailed preparation and skill she brings to each case.

Her primary focus is on those cases where expert medical or scientific evidence requires scrutiny or challenge and those where interpretation or application of statutory provision, or case law, is the subject of uncertainty or dispute. She has a keen interest in cases with cross-border and international dimensions.

Lorna has the ability to ensure that each client, in the midst of complex, sensitive and emotionally charged situations, feels able to have their case understood whether they are social work professionals, teenage parents, adults facing allegations of abuse, children themselves

or members of a family brought into being with the assistance of fertility treatment or surrogacy.

She has a lengthy history of working with those with reduced capacity and understanding. She has the ability to anticipate all sides of the argument, a benefit drawn from acting for Local Authorities, CAFCASS Guardians, parents, the child direct and as an advocate to the Court.

In Silk her advisory and advocacy work has also extended beyond the Family Court to include Inquests, Judicial Review and Human Rights claims connected with vulnerable and looked after children.

Her areas of expertise include cases involving:

Children or other vulnerable witnesses giving evidence, Inherent Jurisdiction and the extent of its powers, Physical abuse (brain injury, sudden death in infancy, starvation and FII), Death of children and of parents, Sexual abuse (Child Sexual Exploitation, paedophile rings and online protection issues), Scrutiny of local authority decision making processes, Human Fertilisation and Embryology Act Issues (parenthood, surrogacy and same sex parenting), Child Abduction and International Movement of Children, Recognition and Enforcement of Foreign Orders, International Adoptions, Disputes over jurisdiction of UK courts, Concurrent criminal proceedings (murder, allowing the death of a child, cruelty and terrorism) and associated issues of disclosure, Disputes over medical treatment and withdrawal of treatment, Vulnerable and mentally incapacitated adults, Privacy versus publication.

International

Lorna s experience includes Children Act and Adoption Proceedings. She has a keen interest in cases with international dimensions with a particular emphasis on International Movement of Children.

Lorna has forged a strong reputation in all areas of children work. Her regular appearances at High Court and Court of Appeal level in private and public law spheres are testament to the energy, detailed preparation and skill she brings to both the advocacy and written elements of each case.

Lorna has the ability to ensure that clients who find themselves in the midst of complex, sensitive and emotionally charged situations feel able to have their cases understood whether they are social work professionals, teenage parents, alleged abusers or children themselves. She has a lengthy history of working with those with reduced capacity and understanding. She has acted for Local Authorities, Cafcass Guardians, parents, the child direct and as an advocate to the Court.

Please click here to read Lorna Meyer QC s article entitled When The Dream Turns Sour: The Lesser Known Face of Child Abduction which discusses child abduction laws in an international context.

Notable Cases

Re W (A Child) [2013] EWCA Civ 1227

RE E (A Child) [2012] EWCA Civ 1773 [2013] Fam Law 399

Re X and Y (Children) [2012] EWCA Civ 1500 [2013] 1FCR1

Re CA (A Baby) [2012] EWHC 2190 (fam)

Re D (A Child) [2011] EWCA Civ 684, [2011] 4 All ER 434, [2011] 2FLR 1183

Re S (a child) [2010] EWCA Civ 219

In the Matter of S (A child) [2010] EWCA Civ 325

WCC, TE, SH, S [2010] EWHC B19 (Fam)

Re X, Y and Z (children) [2010] EWHC B12 (Fam)

LAB v KB (ABDUCTION: BRUSSELS II REVISED) [2009] EWHC 2243 (FAM), [2010] 2 FLR 1664

Re MA(Care Threshold) [2009] EWCA Civ 853; [2010] 1FLR 431

BCC v- AG and Others [2009] EWHC 3720 (fam); [2010] 2FLR 580

Re T (Children: Placement Order) [2008] EWCA 248; [2008] 1FLR 1721

Re AJ (Adoption order or special guardianship order) [2007] EWCA Civ55; [2007]1FLR 507

Re T and J (abduction recognition of foreign judgment) [2006] EWHC 1472 (fam); [2006] 2FLR 1290

Re G (children) [2006] UKHL 43; [2006] 2FLR 629

Re G (Residence: Same sex Partner) [2005] EWCA Civ 462; [2005] 2FLR 957

A County Council v- A Mother, A Father and XY and Z [2005] EWHC 31 (fam) [2005] 2FLR 129

Press

Challenging and Defending Local Authority Child Care Decisions , March 2013 Lorna is co-author of the book.

Faye Edwards

Call: 2017

Faye has expertise in the areas of:

Notable Cases

DCC v M v F v A and B [2023] EWHC 2552 (Fam)

Sitting in the High Court, Junior counsel acting on behalf of the Applicant local authority on a Finding of Fact hearing of a near fatal stab injury to a child, at which significant findings were made against both parents.

Y and E (1996 Hague Convention: Article 11) [2023] EWCA Civ 817

Junior counsel acting on behalf of the Applicant local authority following success in the Court of Appeal. The Appeal Court determined the need for finding of fact hearings as a proper basis for risk assessments. Further, the interplay of Articles 9, 11 and 12 of the Hague Convention for children not habitually resident in the United Kingdom but where significant risks to their safety arise within our jurisdiction.

E (A Child) (Care and Placement Orders) [2023] EWCA Civ 721

Original trial counsel for the first respondent mother, Miss Edwards secured permission to appeal on all grounds relating to a final placement order of a baby, which on Appeal, was successful and remitted to the Family Court for further consideration and assessment.

R v DB

Faye represented a father, in lengthy complex private law proceedings over a 2 year period. At the start of proceedings, the father was having no contact with his young child and the matter proceeded through to a 5 day-fact-find on allegations of physical assault, control and two allegations of rape. Faye was successful in defending the allegations such that they were unproven. The matter further proceeded to a psychological assessment and following expert cross-examination and a 4 day final hearing, Faye secured a live with order in favour of the father, at the conclusion of proceedings.

R v Y

Faye represented the local authority in an application before the Royal Courts of Justice on a complex deprivation of liberty matter in relation to a child at risk of continued radicalisation.

R v M

Faye represented a mother in public law proceedings, at the initial contested removal hearing. Following rigorous challenge to the local authority, child s Guardian and a thorough analysis of the case law, Faye was able to persuade the Court that the test for immediate separation of the mother and her new-born baby was not met.

Public Law Children

Faye has a busy and well-developed children law practice, in both public and private law. She is frequently instructed on multi-day final hearings, fact-finding hearings, as well as case management and direction hearings. Faye has exceptional interpersonal skills and experience representing parents with severe mental health, drug and alcohol difficulties, matters where domestic violence is featured and parents with cognitive functioning difficulties.

Faye also regularly represents local authorities in public law proceedings, from initial removal hearings through to final hearings. Recently, Faye has undertaken work in the High Court on complex deprivation of liberty safeguards for local authorities, fact-finds involving fabricated illness and matters involving allegations of serious abuse of a child, requiring extensive cross examination of medical experts. Faye has recently been described by those instructing her as the voice of reason, committed and simply excellent.

Faye continues to develop this area of her practice and accepts instructions representing all parties in public law proceedings, across all types of hearings.

Private Law Children

Faye accepts instructions across all areas of private law proceedings and has a busy practice representing parents in all types of hearings, including those with serious allegations of domestic violence, including sexual abuse and rape.

Throughout her practice, Faye has experience defending and proving allegations of rape and/or sexual abuse, parental alienation and domestic violence.

Faye undertakes all hearings in proceedings and has undertaken many fact-finding and final hearings that involve the crossexamination of expert medical professionals relating to fabricated induced illness, parental alienation and non-accidental injuries in both a public law and private law sphere.

Faye understands the importance of developing a positive rapport with clients and prides herself on her sympathetic, considerate and calm approach.

Accreditations

Middle Temple Pupillage Award (2018)

Lord Rothermere Harmsworth Award (2016), Middle Temple

Jeremy McMullen Scholarship (2016), Middle Temple

Memberships

Middle Temple

The Midland Circuit

Qualifications

BPTC, BPP University very competent LLB Law, University of Liverpool 2:1

Representing Vulnerable Parties

Faye Edwards

4 Topics of discussion

1. Consideration – The Starting Point

2. Ground Rules Hearing and Intermediaries

3. Cognitive Assessments

4. Psychological Assessments

1. Consideration – The Starting Point

Practice Direction 3AA

FPR 3A

1.1 Part 3A FPR makes provision in relation to vulnerable persons (parties and witnesses), including protected parties, in family proceedings.

1.2 Rule 3A.2A FPR sets out the assumption that where it is stated that a party or witness is, or is at risk of being, a victim of domestic abuse carried out by a party, relative of another party, or a witness in the proceedings, they are vulnerable. Where the assumption applies, the court must consider whether it is necessary to make a participation direction.

1.3 Rule 3A.4 FPR places a duty on the court to consider whether a party’s participation in the proceedings is likely to be diminished by reason of vulnerability and, if so whether it is necessary to make one or more participation directions (as deﬁned in rule 3A.1 FPR). Rule 3A.4 FPR does not apply to a child or to a party who is a protected party, or to those who fall within the assumption at rule 3A.2A FPR.

1.4 Rule 3A.5 FPR places a duty on the court to consider whether the quality of evidence given by a party or witness is likely to be diminished by reason of vulnerability and, if so whether it is necessary to make one or more participation directions. Rule 3A.5 FPR does not apply to a party who is a protected party, or to those who fall within the assumption at rule 3A.2A FPR.

1.5 Rule 3A.6 FPR places a duty on the court to consider whether it is necessary to make one or more participation directions to assist a protected party in proceedings, or a protected party giving evidence.

1.6 For the avoidance of doubt, it should be noted that the assumption that a person is vulnerable, as referred to in rule 3A.2A FPR and in paragraph 1.1 above, only applies for the purposes of the court considering whether it is necessary to make a participation direction and not for any other purpose.

1.7 It is the duty of the court (under rules 1.1(2); 1.2 & 1.4 and Part 3A FPR) and of all parties to the proceedings (rule 1.3 FPR) to identify any party or witness who is a vulnerable person at the earliest possible stage of any family proceedings.

1.8 All parties and their representatives are required to work with the court and each other to ensure that each party or witness can participate in proceedings without the quality of their evidence being diminished and without being put in fear or distress by reason of their vulnerability as deﬁned with reference to the circumstances of each person and to the nature of the proceedings

Factors to which the court has to have regard when considering the vulnerability of a party or witness mentioned: rule 3A.3(1) FPR

2.1 Rule 3A.3 FPR makes clear that when considering the vulnerability of a party or witness for the purposes of rule 3A.4 FPR (the court’s duty to consider how a vulnerable party other than a child can participate in the proceedings) or rule 3A.5 FPR (the court’s duty to consider how a vulnerable party or witness can give evidence), the court must have regard in particular to the matters set out in paragraphs (a) to (j) and (m) of rule 3A.7 FPR. Where rule 3A.7(d) refers to questions of abuse, this includes any concerns arising in relation to any of the following-

a) domestic abuse, b) sexual abuse;

c) physical and emotional abuse;

d) racial and/or cultural abuse or discrimination;

e) forced marriage or so called “honour-based violence”; f) female genital or other physical mutilation; g) abuse or discrimination based on gender or sexual orientation; and h) human traﬃcking.

2.2 As provided by rule 3A.2A FPR, where it is stated that a party or witness is, or as at risk of being, a victim of domestic abuse carried out by certain third parties, it is to be automatically assumed for the purposes of Part 3A FPR that they are vulnerable. For such parties and witnesses, the court should proceed directly to a consideration of whether a participation direction is necessary.

Guidance about vulnerability: rule 3A.3(2) FPR

3.1 Rule 3A.3 FPR requires the court to have regard in particular to the matters set out in paragraphs (a) to (j) and (m) of rule 3A.7 FPR when considering the vulnerability of a party or witness other than a protected party or victim of domestic abuse. When addressing this question, the court should consider the ability of the party or witness to-

a) understand the proceedings, and their role in them, when in court;

b) put their views to the court;

c) instruct their representative/s before, during and after the hearing; and d) attend the hearing without signiﬁcant distress.

2. Ground Rules Hearing and Role of Intermediaries

Participation directions: participation other than by way of giving evidence

Rule 4.1 This section of the Practice Direction applies where the assumption at rule 3A.2A FPR applies to a party, or where a court has concluded that a party’s participation in proceedings (other than by way of giving evidence) is likely to be diminished by reason of vulnerability, including cases where a party might be participating in proceedings by way of asking questions of a witness.

Rule 4.2 The court will consider whether it is necessary to make one or more participation directions. The court may make such directions for the measures specified in rule 3A.8. In addition, the court may use its general case management powers as it considers appropriate to facilitate the party’s participation. For example, the court may decide to make directions in relation to matters such as the structure and the timing of the hearing, the formality of language to be used in the court and whether (if facilities allow for it) the parties should be enabled to enter the court building through different routes and use different waiting areas.

Participation directions: the giving of evidence by a vulnerable party, vulnerable witness or protected party

5.1 This section of the Practice Direction applies where a court has concluded that a vulnerable party, vulnerable witness or protected party should give evidence.

What the court must have regard to:

3A.7 - When deciding whether to make one or more participation directions the court must have regard in particular to

a) the impact of any actual or perceived intimidation, including any behaviour towards the party or witness on the part of—

b) any other party or other witness to the proceedings or members of the family or associates of that other party or other witness; or

c) any members of the family of the party or witness;

d) whether the party or witness—

e) suﬀers from mental disorder or otherwise has a signiﬁcant impairment of intelligence or social functioning;

f) has a physical disability or suﬀers from a physical disorder; or

g) is undergoing medical treatment;

h) the nature and extent of the information before the court;

i) the issues arising in the proceedings including (but not limited to) any concerns arising in relation to abuse;

j) whether a matter is contentious;

k) the age, maturity and understanding of the party or witness;

l) the social and cultural background and ethnic origins of the party or witness;

m) the domestic circumstances and religious beliefs of the party or witness;

n) any questions which the court is putting or causing to be put to a witness in accordance with section 31G(6) of the 1984 Act( );

o) any characteristic of the party or witness which is relevant to the participation direction which may be made;

p) whether any measure is available to the court;

q) the costs of any available measure; and

r) any other matter set out in Practice Direction 3AA.

Ground rules hearings

5.2 When the court has decided that a vulnerable party, vulnerable witness or protected party should give evidence there shall be a “ground rules hearing” prior to any hearing at which evidence is to be heard, at which any necessary participation directions will be giveni. as to the conduct of the advocates and the parties in respect of the evidence of that person, including the need to address the matters referred to in paragraphs 5.3 to 5.7, and ii. to put any necessary support in place for that person.

The ground rules hearing does not need to be a separate hearing to any other hearing in the proceedings.

5.3 If the court decides that a vulnerable party, vulnerable witness or protected party should give evidence to the court, consideration should be given to the form of such evidence, for example whether it should be oral or other physical evidence, such as through sign language or another form of direct physical communication.

5.4 The court must consider the best way in which the person should give evidence, including considering whether the person’s oral evidence should be given at a point before the hearing, recorded and, if the court so directs, transcribed, or given at the hearing with, if appropriate, participation directions being made.

5.5 In all cases in which it is proposed that a vulnerable party, vulnerable witness or protected party is to be cross-examined (whether before or during a hearing) the court must consider whether to make participation directions, including prescribing the manner in which the person is to be cross-examined. The court must consider whether to direct that-

i. any questions that can be asked by one advocate should not be repeated by another without the permission of the court;

ii. questions or topics to be put in cross-examination should be agreed prior to the hearing; iii. questions to be put in cross-examination should be put by one legal representative or advocate alone, or, if appropriate, by the judge; and

iv. the taking of evidence should be managed in any other way.

Measures 3A.8

1. The measures referred to in this Part are those which—

(a)prevent a party or witness from seeing another party or witness; (b)allow a party or witness to participate in hearings and give evidence by live link; (c)provide for a party or witness to use a device to help communicate; (d)provide for a party or witness to participate in proceedings with the assistance of an intermediary;

(e)provide for a party or witness to be questioned in court with the assistance of an

intermediary; or (f)do anything else which is set out in Practice Direction 3AA.

2. Nothing in these rules gives the court power to direct that public funding must be available to provide a measure.

3. If a direction for a measure is considered by the court to be necessary but the measure is not available to the court, the court must set out in its order the reasons why the measure is not available.

Intermediary – a basic reminder of their role!

“intermediary” means a person whose function is to—

a) communicate questions put to a witness or party;

b) communicate to any person asking such questions the answers given by the witness or party in reply to them; and

c) explain such questions or answers so far as is necessary to enable them to be understood by the witness or party or by the person asking such questions

3 Cognitive Assessments- case law update

1. Part 25 & the use of experts

2. We know cognitive assessments are used often, however in light of West Northamptonshire Council v The Mother (Psychological Assessments) [2024] EWHC 395 (Fam), a new approach?

3. A warning that “misconceived applications are exceedingly common”.

The case itself:

i. The interim threshold alleged that the mother failed to engage with antenatal services, including mental health services, and that there was a risk of harm from her association with the father, who had a history of oﬀences.

ii. Mrs Justice Lieven noted that there was nothing in the interim threshold or the Social Work Evidence Template which suggested that the mother suffered from cognitive impairment or significant communication difficulties. Nor was there reference to her having a Special Education Needs statement or having attended anything other than a mainstream school.

iii. Mrs Justice Lieven said there was “minimal evidence submitted in support of this application indicating why the solicitor believed that the mother required such an assessment".

iv. This was important, the judge said, “both because…. the test is one of 'necessity' and there was no evidence or submissions that supported such a test; and because the late withdrawal of the application is an indication that it should never have been made”.

v. Mrs Justice Lieven said the matters stated in the statement in support of the application were matters that were exceedingly common in care proceedings. The statement had suggested that: “The Mother is deemed vulnerable due to her age, her past experiences and mental health issues. The mother has indicated that she struggles with engaging within professional meetings and retaining information."

vi. “An application under Part 25 for a psychological/cognitive assessment must be accompanied by proper evidence which explains why the case goes beyond the standard diﬃculties faced

by many parents in care proceedings. The evidence must explain why the parent's needs cannot be properly managed by careful use of language and the professionals taking the time to explain matters in an appropriate manner. The evidence must address why such an assessment is necessary rather than just something that would be ‘nice to have’,” Mrs Justice Lieven said.

vii. “It would often be the case that if one parent does have cognitive issues this will have been identiﬁed at school, during previous interactions with the local authority and/or in preproceedings work. These earlier interventions will frequently identify whether there are cognitive challenges, and how they can best be handled.”

viii. “It will often be the case that parents may struggle to absorb information, to understand the proceedings and to concentrate through meetings and hearing, however, the solution to this problem is not, in the majority of cases, to have cognitive assessments and appoint intermediaries. It is for all the professionals involved, including lawyers and judges, to bear closely in mind the need to use simple language, avoid jargon, and where appropriate check that a litigant has understood what is being said. That is all set out in the Advocates Gateway.”

ix. “Unfortunately, such misconceived applications are exceedingly common, particularly in respect of applications for psychologists to undertake cognitive assessments.”

x. Refusing the application, Mrs Justice Lieven said: “A test of necessity does not mean that a report would be ‘nice to have’ or might help in determining what psychological support the parent might need in the future. That is not necessary to resolve the proceedings.”

The main principles to take from this:

1. The onus is on representatives to explain things in a such manner that can be understood AND check whether it has been understood;

2. The test for the need of a cognitive is high. The ‘usual problems’ we see in the Court arena are not to be out of the norm and therefore it appears the parent must show they have diﬃculties ‘greater than the average person’. What does that mean for consistency and a fair trial?

A Guardian’s Role in Part 25

Side Note but becoming more common and explored within this judgment – Mrs J Lieven’s indication on Guardian’s being neutral on such applications.

xi. Mrs Justice Lieven meanwhile said it was “unfortunate” that the Guardian and her solicitor had stated that they were “neutral” in relation to the application.

xii. “It is quite clear from the Skeleton that the Guardian did not consider the test of necessity in Part 25 to have been met, but still remained neutral on the application. Guardians, and the Children's solicitors, play an important role in care proceedings in ensuring that the interests of the child are met by minimising delay and maximising the eﬃcient use of resources, in particular by assisting the Court to "Make Cases Smaller", see the President of the Family Division's The Road Ahead. If it is clear to the Guardian and the Child's solicitor that an application should be refused, then they should make that clear to the Court,”

Rule 25 of the FPR (2010) 25.4(3) states that the court may give permission ‘only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings’. This provision was amended and one important word was added by s.13 of the Children and Families Act 2014, which states: ‘the court may give permission…only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly’ (s.13 (6)).

‘When deciding whether to give permission …the court is to have regard in particular to-

1. Any impact which giving permission is would be likely to have on the welfare of the children concerned…and the impact on the child of any assessment of them,

2. The issues to which the expert evidence would relate,

3. The issues with which the examination or other assessment would enable the court to answer,

4. What other expert evidence is available (whether obtained before or after the start of proceedings),

5. Whether evidence could be given by another person on the matters which the expert would give evidence,

6. The impact which giving permission would be likely to have on the timetable for, and duration and conduct of the proceedings,

7. The cost of the expert evidence, and

8. Any matters prescribed by the FPR.’

Support from the CoA on expert psychological assessments? - E(A Child) Care and Placement Orders) [2023] EWCA Civ 721

This case highlights the crucial nature of a psy assessment as it was the key to unlocking a child going home to birth parent.

How do we balance this with the approach Courts take in terms of reluctance?

Side Note but for interest

Psychological assessments – Parental Alienation “Mother accused of parental alienation wins appeal over psychological assessment by an expert ”

Recent Update on Alienation Cases to have a note of:

Parental alienation and the use of ‘experts’ to diagnose it has been in the news recently, following the case of Re C (‘Parental alienation’; Instruction of Expert) [2023] EWHC 345 Fam, in which the court accepted the opinion of an unqualiﬁed ‘psychologist’ that the mother had alienated the children from the father, and ordered that the children should live with the father: (link to case: https://www.bailii.org/ew/cases/EWHC/Fam/2023/345.html).

Re C:

The case of Re C was signiﬁcant because it set out new guidance from Sir Andrew McFarlane, President of the Family Division, applicable to similar cases. Re C has now been considered by the High Court in another case Re GB (Part 25 Application: Parental Alienation) [2023] EWFC 150.

In Re C set out the following principles to be applied in similar cases where the permission of the court is sought to instruct an ‘expert’:

1. There is no proper deﬁnition of an ‘expert’ in Family proceedings, except in rule 23.2(c) of the Family Proceedings Rules 2010 (‘FPR 2010’), which says that an “expert” means a person who provides expert evidence for use in proceedings.

2. There are certain statutory exceptions to the term “expert” for Cafcass Officers, Local Authority officers and adoption agency staff, set out in s13(8) of the Children and Families Act 2014 [‘C+FA 2014’].

3. Expert evidence will only be permitted in children proceedings if the court is of the opinion that the evidence is “necessary” to assist the court to resolve the proceedings justly: s13(6) C+FA 2014].

4. An “expert” witness’ opinion will only be admissible on any relevant matter on which s/he is qualified to give expert evidence: s3 of the Civil Evidence Act 1972 [‘CEA 1972’]. The term ‘qualified’ is not defined in the CEA 1972.

5. The question of whether an “expert” is qualiﬁed to give expert evidence is a matter for the court in each individual case: s3 CEA 1972.

6. The instruction and role of experts in the Family Court is governed by the Family Procedure Rules 2010.

7. Whilst certain categories of psychologist have a protected title (e.g. clinical psychologists), the title “psychologist” is not protected, and may be used by an individual regardless of their regulatory status.

Re GB

In summary, the facts of Re GB (Part 25 Application: Parental Alienation) [2023] were that there were two children, aged nine and 12, who live with their mother, and had only indirect contact with their father. The father accused the mother of alienating their children against him.

After the father claimed the mother had alienated their children from him, the children’s guardian ﬁled an application for new expert evidence. The District Judge agreed the application to assess the family, against the objections of the mother, and made an order permitting the instruction of a new expert, a psychologist, and approved a set of questions for the expert to answer in their report. One such question asked the new expert to examine whether either parent had tried to alienate the children, and if yes, to comment on the impact of that on the children, and set out what work the parents would need to undertake to remedy any such negative inﬂuence, as well as the timescales and cost of such work.

The mother appealed the decision to instruct the expert, and won her appeal on the basis that disputed factual matters are for the court to decide, not experts, overturning the District Judge’s direction to instruct a psychological expert

Giving judgment on the appeal, Judge Middleton-Roy said the District Judge of the Family Court was wrong to invite the expert to undertake a psychological assessment.

Judge Middleton-Roy said, “the expert was being invited to provide an opinion about parental alienation. In the judgment of this court that is outside the expert’s remit” adding that “it is the court’s function to make factual determinations necessary to inform welfare decisions for the child, not to delegate that role to an expert.”

Is this a step away from the growing use of ‘experts’ who advertise themselves as specialising in parental alienation?

RepresentingVulnerableParties

FayeEdwards fe@no5.com

1.Consideration–TheStartingPoint

Whoisavulnerableperson? Whatfactorsdothecourthavetohaveregardtowhenconsideringvulnerability? GeneralGuidance

PracticeDirection3AA

FamilyProcedureRules3A

Ofnote:Itisthedutyofthecourtandallpartiestoidentifyanypartyorwitnesswhoisavulnerable personattheearliestpossiblestageofanyfamilyproceedings.

Ofnote:Underrule3A.2A,DVorriskofDVisautomaticassumptionthatthevictimisvulnerableandthe courtshouldproceeddirectlytoconsiderationofwhetherparticipationdirectionsarenecessary.

2.GroundRulesHearingandIntermediaries

Participationdirectionswhennotgivingevidence? Participationdirectionswhengivingevidence? GroundRulesHearingspriortothegivingofevidence? Whatmeasurescanbeputinplacetoassistavulnerableperson? Whatisanintermediary?–abasicreminder!!

-Ofnote:Nothingintherulesgivesthecourtpowertodirectthatpublicfundingmustbeavailable toprovideameasure.

Part25

3.CognitiveAssessments

Caselawupdate;WestNorthamptonshireCouncilvTheMother(Psychological Assessments)[2024]EWHC395(Fam)

Ifnecessary,awarningthatpsychologistsshouldn’tbeundertakingassessments?

Thetestofnecessityandmorethan‘nicetohave’ beyondthestandarddifficultiesfacedbymanyparentsincareproceedings.” Itwilloftenbethecasethatparentsmaystruggletoabsorbinformation,tounderstandthe proceedingsandtoconcentratethroughmeetingsandhearinghowever,thesolutiontothis problemisnot,inthemajorityofcases,tohavecognitiveassessmentsandappoint intermediaries.Itisforalltheprofessionalsinvolved,includinglawyersandjudges,tobear closelyinmindtheneedtousesimplelanguage,avoidjargon,andwhereappropriatecheckthat alitiganthasunderstoodwhatisbeingsaid.ThatisallsetoutintheAdvocatesGateway.”

4.PsychologicalAssessments

Part25

1.Anyimpactwhichgivingpermissioniswouldbelikelytohaveonthewelfareofthechildren concerned…andtheimpactonthechildofanyassessmentofthem,

2.Theissuestowhichtheexpertevidencewouldrelate,

3.Theissueswithwhichtheexaminationorotherassessmentwouldenablethecourttoanswer,

4.Whatotherexpertevidenceisavailable(whetherobtainedbeforeorafterthestartofproceedings),

5.Whetherevidencecouldbegivenbyanotherpersononthematterswhichtheexpertwouldgiveevidence,

6.Theimpactwhichgivingpermissionwouldbelikelytohaveonthetimetablefor,anddurationandconduct oftheproceedings,

7.Thecostoftheexpertevidence,and 8.AnymattersprescribedbytheFPR.’

4.PsychologicalAssessments

Caselawupdate/discussion:E(AChild)CareandPlacementOrders)[2023]EWCACiv721 Areminderoftheprinciplesthatgovernlocalauthority’sdutiestoaparent: “PartIIIoftheChildrenAct1989,towhichHedleyJreferred,isheaded“Supportforchildrenand familiesprovidedbylocalauthoritiesinEngland”containsdetailedprovisions,thefirstofwhichis section17,headed“Provisionofservicesforchildreninneed,theirfamiliesandothers”.Section17(1) “Itshallbethegeneraldutyofeverylocalauthority(inadditiontotheotherduties imposedonthembythisPart)–

a.tosafeguardandpromotethewelfareofchildrenwithintheirareawhoareinneed; and b.sofarasisconsistentwiththatduty,topromotetheupbringingofsuchchildrenby theirfamilies, c.byprovidingarangeandlevelofservicesappropriatetotheirneeds.”

5.PsychologicalAssessmentsFor ParentalAlienation

Notlinkeddirectlytovulnerablepartiesbutthereisanargumentthataparentwhoisthe victimofsignificantPAcouldbeatriskofemotionalabuseandunderRule3FPR,avulnerable personasaresult.

ReC(ParentalAlienation,InstructionofExpert)[2023]EWHC345Fam;and ReGC(Part25Application:ParentalAlienation)[2023]EWFC150

FayeEdwards fe@no5.com

Heather Popley

Call: 2003

"Heather is a very strong advocate, she is well prepared, personable and makes herself available."

Chambers UK 2024

Heather practices the following areas: Notable Cases

Re M [2023] EWFC 17

A v B [2022] EWHC 3238 (Fam)

Re T (A Child) [2016] EWCA Civ 1210

BCC v Riaz et al [2014] EWHC 4247 (Fam)

Private Law Children

Heather has extensive experience of private law children cases involving complex issues, including parental alienation and intractable contact disputes; fact findings, such as those involving allegations of domestic violence, physical and sexual abuse; removal out of the jurisdiction, and internal and international relocation.

Heather provides written advice in all areas of her family practice along with other written work, such as skeleton arguments, Scott Schedules, threshold documents and submissions. She appears regularly in the Family Court and High Court and has appeared in the Court of Appeal.

Heather is sensitive to the needs of each individual party she represents, rigorously putting their position, whilst providing clear and practical advice having regard to the overall circumstances of each case. She has experience working with clients who are vulnerable, and parties with learning difficulties requiring a litigation friend to be appointed, including cases involving the appointment of the Official Solicitor.

Public Law Children

Heather represents local authorities, parents, other relatives and children s guardians in care proceedings, including Special Guardianship, placement and adoption applications, secure accommodation orders and deprivation of liberty applications.

Heather has experience of cases involving serious allegations of sexual abuse (including child sexual exploitation); non-accidental injury including brain injury, multiple fractures, suffocation; factitious or fabricated illness; chronic neglect; and domestic abuse.

Heather is experienced in dealing with cases that have concurrent criminal proceedings and issues regarding disclosure that may arise. She often appears in complex cases involving vulnerable witnesses and applications necessitating Re W arguments and ground rules hearings.

Qualifications

LL.B. (Hons)

Called to the Bar 2003 Gray s Inn FLBA Advocacy and the Vulnerable Training

Necessityandtheroleoftheexpert–Ageneralupdateincludingthe SuspectedInflictedHeadInjuryServicePilot [SIHIS]

Presentedby–HeatherPopley Presenter’semail–HPO@no5.com

ExpertInstruction–AGeneralUpdate

Thelegaltesttobeapplied

Necessity

Thecurrentapproachtotheroleofexpertevidenceincareproceedings

SuspectedInflictedHeadInjuryServicePilot

Part25FamilyProcedureRules2010

Part25proceduralrequirements

Re-LaunchofPublicLawOutlineFPRPD12AMrJusticeKeehan “8.Part25applicationsmustbefiledandservedinadvanceoftheCMH.The courtshouldapplythetestofnecessityfortheappointmentofanexpert stringently.”

Section13ChildrenandFamiliesAct2014

(1)Apersonmaynotwithoutthepermissionofthecourtinstructapersontoprovideexpert evidenceforuseinchildrenproceedings.

(2)Whereincontraventionofsubsection(1)apersonisinstructedtoprovideexpert evidence,evidenceresultingfromtheinstructionsisinadmissibleinchildrenproceedings unlessthecourtrulesthatitisadmissible.

(3)Apersonmaynotwithoutthepermissionofthecourtcauseachildtobemedicallyor psychiatricallyexaminedorotherwiseassessedforthepurposesoftheprovisionofexpert evidenceinchildrenproceedings.

(4)Whereincontraventionofsubsection(3)achildismedicallyorpsychiatricallyexamined orotherwiseassessed,evidenceresultingfromtheexaminationorotherassessmentis inadmissibleinchildrenproceedingsunlessthecourtrulesthatitisadmissible.

Section13(1)preventsapartyfromseekingexpertevidencebyany meansotherthanwithpermissionof,andbydirectionof,thecourt.

President’sMemorandum:ExpertsintheFamilyCourt(4thOctober 2021)

Section13ChildrenandFamiliesAct2014

(5)Inchildrenproceedings,apersonmaynotwithoutthepermissionofthe courtputexpertevidence(inanyform)beforethecourt.

(6)Thecourtmaygivepermissionasmentionedinsubsection(1),(3)or(5) onlyifthecourtisoftheopinionthattheexpertevidenceisnecessaryto assistthecourttoresolvetheproceedingsjustly.

NB:…itisimportanttoemphasisethatthequestionisnotsimplywhether expertevidenceis‘necessary’butwhetheritis‘necessarytoassistthecourt toresolvetheproceedingsjustly’.Therearefiveelements,notone: ‘necessary’,‘assist’,‘resolve’,‘theproceedings’(ietheseparticular proceedings),and‘justly’.

“Necessary”

Suchexpertevidencewillonlybe‘necessary’whereitisdemandedbythe contestedissuesratherthanbeingmerelyreasonable,desirableorof assistance(ReH-L(AChild)[2013]EWCACiv655).

WestNorthamptonshireCouncilvTheMother[2024]EWHC395 (Fam)–LievenJ-Thejudgmentisintendedtoprovideguidanceto practitionersinrelationtomakingapplicationsforexpertevidencewiththe keymessagebeingunderlinedthatapplicationsshouldnotbegrantedif thelegaltestofnecessityisnotsatisfied.

Section13ChildrenandFamiliesAct2014

(7)Whendecidingwhethertogivepermissionasmentionedinsubsection(1),(3)or(5)thecourtistohave regardinparticularto–

(a)anyimpactwhichgivingpermissionwouldbelikelytohaveonthewelfareofthechildrenconcerned, includinginthecaseofpermissionasmentionedinsubsection(3)anyimpactwhichanyexaminationorother assessmentwouldbelikelytohaveonthewelfareofthechildwhowouldbeexaminedorotherwiseassessed, (b)theissuestowhichtheexpertevidencewouldrelate, (c)thequestionswhichthecourtwouldrequiretheexperttoanswer,

(d)whatotherexpertevidenceisavailable(whetherobtainedbeforeorafterthestartofproceedings), (e)whetherevidencecouldbegivenbyanotherpersononthemattersonwhichtheexpertwouldgive evidence, (f)theimpactwhichgivingpermissionwouldbelikelytohaveonthetimetablefor,anddurationandconduct of,theproceedings, (g)thecostoftheexpertevidence,and (h)anymattersprescribedbyFamilyProcedureRules.

Admissibilityofevidence

Therearefourcriteriawhichgovernadmissibility(seeKennedyvCordia (Services)LLP(Scotland)[2016]UKSC6at[44]): (i)whethertheproposedexpertevidencewillassistthecourtinitstask; (ii)whetherthewitnesshasthenecessaryknowledgeandexperience; (iii)whetherthewitnessisimpartialinhisorherpresentationand assessmentoftheevidence;and (iv)whetherthereisareliablebodyofknowledgeorexperiencetounderpin theexpert’sevidence.

SuspectedInflictedHead InjuryServicePilot

[SIHIS]

AViewfromThePresident’sChambers:July2024

“AyearPilothasbeenlaunchedinthree NHSFoundationTrustswhichhasbeen developedbytheDfEandtheFJCExperts Committee(FJCEC).SIHISinvolvesthe creationofaclinicalmulti-disciplinaryteam todealwithsuspectedinflictedheadinjury inchildrenagedbetween0-8yearsold.”

3NHSFoundationTrusts

•BirminghamWomenandChildren’sNHS FoundationTrust

•SheffieldChildren’sNHSFoundationTrust

•ManchesterUniversityHospitalsNHS FoundationTrust

•“Themulti-disciplinaryteam[MDT]will produceaClinicalReportbasedonatemplate thatwillbringtogetherinonereportthe resultsofalltheclinicalinvestigationsandwill containtheteam’sassessmentofthecase fromtheclinicalperspective.Thisteam’s reportwillbeavailabletosocialservices, police,thecourtsandlawyersastheprincipal recordoftheclinicalevaluation.”

ThePresidentstates:

“Itishopedthatthismulti-disciplinaryapproachwillhaveclinicalbenefitsintheinvestigation andtreatmentofSIHIandthatchildrenwillbethemainbeneficiaries.Inaddition,fromthe FamilyJusticeperspective,thehopeisthatitwillassistthecourtindeterminingwhatPart 25medicalexpertsarenecessaryandwillencourageclinicianstojointhepoolofexperts offeringtheirservicestotheFamilyJusticesystem.”

•Weareinformedthat“Afullconsultationwillbeundertakenaspartoftheevaluation processinduecourse.”

ThePresidentfurthernotes:

“However,asthosetruststakereferralsfromawidegeographicalrangetheMDT reportsmayrelatetoachildwhoisthesubjectofproceedingsacrossthecountry. SIHISdoesnotalterthelaworpracticeinrelationtoPart25experts.Thehopeofthe FJCECisthatthisapproachwillensureallnecessaryclinicalinvestigationsarecarried outpriortoproceedingsandthattheclarityofpresentation,content,andopinionthat theClinicalReportwillbringshouldassistinreducingthenumberofPart25expertsthe courtconsidersitnecessarytoinstruct.

RecentCourtofAppealdecisionsregardingtheapproachtoexpert evidenceandwiderissuesrelatingtoexperts: DandA(FactFinding:ResearchLiterature)[2024]EWCACiv663 providesfurtherpointstoconsidernotleastinlightofthenewpilot.

PandE(CareProceedings:WhethertoHoldFact-Finding)[2024] EWCACiv403–anappealofacasemanagementdecisionregarding whethertoholdafact-findinghearingornot.

Necessityandtheroleoftheexpert–Ageneralupdateincludingthe SuspectedInflictedHeadInjuryServicePilot [SIHIS]

Presentedby–HeatherPopley Presenter’semail–HPO@no5.com

Naomi Dean

Call: 2016

"Naomi is a truly excellent children s barrister and very much a rising star. She is always thoroughly prepared and is a strong advocate with excellent attention to detail."

Legal 500 2024

Expertise

Family

Naomi has developed an extremely busy children law practice over the past few years, in both private and public law. She is frequently instructed on multi-day fact finds and final hearings. She is recognised by her peers and instructing solicitors as a star of the future. Naomi is frequently applauded for her attention to detail in cases, which means that every case she prepares is to the highest standard. She has exceptional interpersonal skills and is recognised as an outstanding advocate.

Notable Cases

BCC v M & F [2023]

Naomi (led by Kristina Brown) appeared in the High Court representing the mother whose children were in care proceedings. The M s partner was found to have sexually abused M s children.

BCC v R [2024]

Naomi (led by Kristina Brown) represented the child in these very complex proceedings where the child s sibling had been killed by his mother.

LCC v B [2023]

Naomi represented the local authority in public law proceedings at a multi-day (five day) finding of fact hearing in respect of two serious fractures: a fracture to the child s left clavicle and a linear fracture to the left side parietal bone. The expert paediatrician and radiologist disagreed as to whether the injury was nonaccidental or not. This required extensive cross-examination of both experts; a high level of understanding of medical injuries/concepts, and the ability to understand complex medical jargon. This was particularly challenging: cross-examination of medical experts in this manner is often done by counsel who are around 10+ years

LCC v P [2023]

Naomi successfully represented the local authority at this multi-day (four day) final hearing. The local authority recommended a special guardianship order to be made for the child to live with the maternal grandmother. The matter was complex due to the plethora of evidence, the issues in the case and the number of witnesses required. The court heard evidence from an expert psychologist which required careful and complex cross-examination of the psychologist. The papers were in excess of 1200 pages; there was a plethora of medical and police evidence, which required careful case analysis and close scrutiny.

T v R [2020]

Naomi represented the local authority throughout this 10-day final hearing which took place as a hybrid hearing. This required knowledge of Brussels II and the working arrangements of the local Polish local authority and the Polish courts. There was an additional complicating factor due to the British exit from the European Union which was scheduled for the 31st of December 2020. Therefore, for the Court to utilise Brussels II, the decision had to be made and the plans approved prior to this date.

N v P [2021]

Naomi represented a local authority in the High Court where she successfully argued the issue of designation. She was complimented by the High Court Judge on the skeleton argument she had produced for the hearing.

W v H [2020]

Naomi represented the Mother at a multi-day final hearing where the local authority had applied for a care and placement order of the parents child. Mother an extremely low IQ and a significant learning disability . Naomi had to be extremely vigilant during the course of Mother s evidence to ensure that Mother was receiving a fair hearing in light of her learning disability. This case had complicated factors due to the legal aspects that were involved, due to the local authority applying for both care and placement orders and the Mother having a learning disability.

B v H [2020]

Naomi was instructed to represent the Mother at a multi-day complex hybrid finding of fact hearing. The finding of fact comprised cross-allegations of sexual

abuse of the parties daughter, allegations of parental alienation and allegations of exposure to an intrusive and inappropriate sexual examination.

Public Law Care

For example, within the last twelve months she has been instructed on cases involving the following issues: cases where a child had been killed by the mother, cases of sexual abuse, cases where the parents lack capacity and the Official Solicitor has been instructed; cases involving serious allegations of non- accidental injuries to a child; cases where fabricated illness has been a live issue before the Court; finding of fact hearings involving allegations of sexual abuse of a child; and cases involving deprivation of liberty safeguards in respect of children.

Naomi has also built up a strong parent practice within public law proceedings, alongside her local authority practice. She has represented parents with significant learning disabilities at final and interim hearings. In a recent multi-day final hearing she challenged the local authority extensively about the lack of support they had provided to her client, referring in detail to the case law and regulations and criticising the local authority for not exercising their duties in accordance with the law and regulations. She was recognised by the judge for her painstaking analysis of the case and that her client could not have been better represented , which was recorded within the written judgment.

Naomi has also been instructed on a 10-day final hearing for the local authority in a complex private law matter involving jurisdictional elements.

Naomi wishes to progress her public law work further and has a particular interest in developing her practice in cases involving medical evidence and NAIs.

Private Law Children

Naomi is very experienced in private children cases. She is experienced in acting for parents, children, and members of the extended family in all aspects of private-law disputes. Naomi prides herself on her ability to build a strong rapport with clients from the outset; giving straightforward and practical advice to help the situation that the individual family member finds themselves in.

Naomi has recently been instructed in cases with issues including the following issues:

Parental alienation

Sexual and physical abuse of the child and/or the parent

Transfer of living arrangements

International and national relocation

Serious psychiatric and psychological issues where experts have been cross-examined and challenged

Accreditations

During pupillage, Naomi was recognised as being an outstanding pupil barrister and was awarded the Ann Goddard Scholarship for publicly funded pupillages (Gray s Inn, 2017). This is a highly prestigious scholarship which was awarded to her after a competitive interview and application process.

Lord Justice Holker Scholarship, Gray s Inn, 2015 University of Law Performance Award for the BPTC, 2015 University of Law Wig Scholarship, 2016

Lady Barber Prize for Mooting, University of Birmingham, 2015 Runner-up in the Camm Cup Mooting Competition, 2015

Appointments

Naomi is a committee member of Young Resolution, and undertakes a role in overseeing the education for the members of the organisation.

Naomi is a mentor at Gray s Inn and regularly provides training to students, which comprises the following: reading over pupillage applications; judging advocacy exercises and mooting competitions for the Inn and on circuit; she has attended pupillage advice evenings whereby she has provided intensive advice to prospective candidates.

Qualifications

LLB University of Birmingham 1st Class

BPTC University of Law

[In the High Court of Justice, Family Division

Sitting at ]

[In the Family Court sitting at ]

(Delete as appropriate)

The Children Act 1989

The Senior Courts Act 1981

The Inherent Jurisdiction of the High Court

Case no.

TRANSPARENCY ORDER MADE BY [ ] ON [ ]

TO ANYBODY WHO HAS SEEN THIS ORDER OR IS AWARE OF ITS CONTENTS: You must obey the terms of this order. If you do not, you may be held in contempt of court and punished by a fine, imprisonment, confiscation of assets or other punishment under the law.

Notice and Definitions:

1. This case has been included in the Reporting Pilot, which allows pilot reporters to, subject to the terms of this order, discuss certain aspects of the case with the parties, and report on what they see and hear in court hearings that they attend.

2. This order is an injunction, which means that you must do what the order says.

3. The point of contact for any pilot reporter is the Court Office. The details are at the foot of this order.

4. Nothing in this Order affects the ability of parties or their representatives to publish or communicate information as permitted by Family Procedure Rules 12.73, 12.75, 14.14 or Practice Directions 12G (para 2.1) and 14E to the Family Procedure Rules 2010.

5. In this order, "pilot reporters" means duly accredited representatives of news gathering and reporting organisations and duly authorised lawyers attending for

journalistic, research or public legal educational purposes (legal bloggers) (together referred to in this order as ‘pilot reporters’) who are entitled to attend a hearing under r.27.11 of the Family Procedure Rules 2010 (‘FPR’).

6. Section 12 Administration of Justice Act 1960 continues to operate save and insofar as this Order varies it. This means that any publication of information relating to the proceedings which is not permitted by this Order is a Contempt of Court.

Who does this order apply to?

7. The Order applies to:

a. The parties and their lawyers;

b. Any witnesses in the case;

c. Anybody who attends some or all of a hearing in the case;

d. Any authority, body or organisation (and their officers, employees, servants and agents) for whom any such person works, is employed, engaged or is giving evidence.

e. Anybody who is served with a copy of this order or is aware of its contents.

8. This Order will be served on the parties and their lawyers, and any pilot reporter who attends a hearing and wishes to report on what they see, read, and hear.

It is ordered that:

9. This Order will remain in force until [ ; usually the 18th birthday of the youngest child].

10. Except where allowed by this Order, no person is permitted to publish, or to communicate information relating to the proceedings except as already permitted under Family Procedure Rules 12.73, 12.75, 14.14 or Practice Directions 12G (para 2.1) and 14E to the Family Procedure Rules 2010, or by discussion between a party to the proceedings (or their legal representative) and a pilot reporter as permitted under the terms of this order.

11. This order applies to any person who is aware of its contents, including those set out in above under the heading ‘Who does this order apply to?’.

What may and may not be published?

12. A pilot reporter may publish any information relating to the proceedings save to the degree restricted below.

13. No person may publish any information relating to the proceedings to the public or a section of it, which includes:

a. The name or date of birth of any subject child in the case.

b. The name of any parent or family member who is a party or who is mentioned in the case, or whose name may lead to the child(ren) being identified;

c. The name of any person who is a party to, or intervening in, the proceedings;

d. The address of any child or family member;

e. The name or address of any foster carer;

f. The school/hospital/placement name or address, or any identifying features of a school of the child;

g. Photographs or images of the child, their parents, carer or any other identifying person, or any of the locations specified above in conjunction with other information relating to the proceedings;

h. The names of any medical professional who is or has been treating any of the children or family member;

i. In cases involving alleged sexual abuse, the details of such alleged abuse;

j. For the purposes of s.97(2) Children Act 1989, any other information likely to identify the child as a subject child or former subject child.

14. This Order does not disapply s.97(2) Children Act 1989 unless expressly stated.

15. For the avoidance of doubt, no body, agency or professionals may be identified in any information relating to the proceedings published to the general public or a section of it by a pilot reporter, save for:

a. The local authority/authorities involved in the proceedings;

b. The director and assistant director of Children’s Services within the LA (but no other person from the local authority, including the social worker, without express permission of the court);

c. Cafcass (but not the children’s guardian or reporting officer without express permission of the court);

d. Any NHS Trust;

e. Court appointed experts (but not treating clinicians or medical professionals);

f. Legal representatives and judges;

g. Anyone else named in a published judgment.

Documents

16. A pilot reporter who attends a hearing in family proceedings in accordance with FPR r.27.11, or who indicates in advance that they wish to attend a hearing, is entitled to see, quote from, or publish:

a. Documents drafted by advocates (or litigants if a party is self-representing): i.e. Case outlines, skeleton arguments, summaries, position statements threshold documents and chronologies.

b. Any indices from the Court bundle.

c. Any suitably anonymised Orders within the case.

17. Parties to the proceedings and their representatives may not disclose documents from the proceedings to pilot reporters, except as specified above, or with the specific permission of the court. This includes where a document is referred to or quoted from in court that the pilot reporter would not otherwise have access to.

18. Any such requests for copy documents must be made at or before a hearing which the pilot reporter has attended pursuant to FPR r.27.11.

a. Upon a request being made, the author of the document shall as soon as practicable provide a copy of the document to the pilot reporter.

b. The pilot reporter may quote from or publish the contents of the document, save that the details under heading ‘What may or may not be published?’ of this Order may not be published. Where any document referred to above quotes from a document to which the pilot reporter would not be entitled to see (such as source evidence), the passage quoted may not be reproduced or reported without permission of the court.

19. No other document may be provided to a pilot reporter without permission of the court.

20. A pilot reporter may share documents or information with their editorial team or legal advisor responsible for the publication of their proposed report of the case, providing that they also provide any such person with a copy of this order which will be binding upon that editorial team or legal advisor.

Discussions between pilot reporters and parties and their representatives

21. The parties to the proceedings and their representatives may disclose information from proceedings, and share any hearing dates, with a pilot reporter for the purpose of discussing the case and informing the pilot reporter of the circumstances of the case.

22. Where the parties or their representatives have invited reporters to attend a hearing, permission is given retrospectively for any discussions that took place with reporters.

Operation

23. Permission to report is not effective until [the end of the hearing at which this Order is made, amend as appropriate].

Other Orders

24. Permission for this Order to be served by email. Email shall be effective service for the purposes of FPR Part 6 and FPR Part 37.

25. Liberty to the parties and any pilot reporter to apply on notice to vary or discharge this Order. Any application to vary or discharge this Order should be made by way of C2 application, with the fact and nature of any objection being clearly set out in an accompanying position statement.

26. When a transparency order is made, or received, a pilot reporter must confirm to the court that they have read and understand the terms of this Order.

Dated, etc.

Transparency:BehindClosedDoors

PresentedbyNaomiDean nde@no5.com

Questiontotheroom

Doyouthinkthepressshouldbeabletoattendyourfinalhearingandreportaboutthe case,wouldyouagree?

Principlesengaged

Openjusticevprotectionofthechild Justice/thestatenotoperatinginsecretv protectionoftheparties Publicrighttoknowwhatishappeningvgetting thebestevidence?

Background

Thedebateisdone:

“ConfidenceandConfidentiality:TransparencyintheFamilyCourt” (October2021),SirAndrewMcFarlanePconcluded: [35]Myoverallconclusionisthatthetimehascomeforaccredited mediarepresentativesandlegalbloggerstobeable,notonlyto attendandobserveFamilyCourthearings,butalsotoreport publiclyonwhattheyseeandhear.Reportingmustbesubjectto veryclearrulestomaintainboththeanonymityofthechildrenand familymemberswhoarebeforethecourt,andconfidentialitywith respecttointimatedetailsoftheirprivatelives.Opennessand confidentialityarenotirreconcilable,andeachisachievable.The aimistoenhancepublicconfidencesignificantly,whilstatthe sametimefirmlyprotectingcontinuedconfidentiality.

TransparencyImplementationGroup

•TransparencyImplementationGroup(TIG)inNovember 2021

•TransparencyReportingPilot,whichpermittedthe contemporaneousreportingofproceedingsatthreecourt centres(Carlisle,LeedsandCardiff),inJanuary2023.

•On29January2024,thePilotwillbeexpanded

Midlands:Nottingham,Stoke,Derby,Birmingham

TheStatutoryFramework

•FamilyProcedureRule(“FPR”)27.10

•FPR27.11(2)PersonsattendingundertheprovisionofFPR27.11(2)(f)and(ff)shouldbe invitedtomakerepresentationsonanysuchapplicationandthecourtshouldgivereasonsfor itsdecision(PD27B5.5).

•Noexpectationthatthehearingshouldbeadjournedtoaccommodaterepresentationsby membersofthepresswhoarenotpresentatthehearing(PD27B6.1).

•Thecourtretainsthepowertoexcludeanypersonwhowouldotherwisebepermittedtoattend (FPR27.11(3)).

•Theanonymityofthechildispreservedbys.97oftheChildrenAct1989(“s.97CA”),

•However,s.97CAceasestohaveeffectupontheconclusionofproceedings(Claytonv Clayton[2006]EWCACiv878,[2005]Fam83).

ThePilot

•Presumptionthataccreditedmediaandlegal bloggersmayreport

•strictrulesofanonymity.

•Theabilitytoreport:canitbedonesafelyandwith minimumdisruption

•makinga‘TransparencyOrder’

•Rule27.11oftheFamilyProcedureRules 2010andPracticeDirection27Bas modifiedunderthetermsofthepilot

•Atemplate TransparencyReportingPilot Guidance(https://www.judiciary.uk/wpcontent/uploads/2023/05/TIG.TOv2FINA L.docx). Transparencyorderscontinued

(1)Thenameordateofbirthofanysubjectchildin thecase;

(2)Thenameofanyparentorfamilymemberwhois aparty;

(3)Thenameofanypersonwhoisapartyto,or interveningin,theproceedings;

(4)Theaddressofanychildorfamilymember;

(5)Thenameoraddressofanyfostercarer;

(6)Theschool/hospital/placementnameor address,oranyidentifyingfeaturesofaschoolof thechild;

(7)Photographsorimagesofthechild,their parents,careroranyotheridentifyingperson

8)Thenamesofanymedicalprofessional;

(9)Incasesinvolvingallegedsexualabuse, thedetailsofsuchallegedabuse;and

(10)Anyotherinformationlikelytoidentifythe childasasubjectchildorformersubjectchild Whatcan’tbeidentified

(1)Thelocalauthority/authoritiesinvolvedin theproceedings.

(2)Thedirectorandassistantdirectorof children’sserviceswithinthelocal authority

(3)SeniorCafcasspersonnel(butusually nottheguardianappointedforthechild).

(4)AnyNHSTrust.

(7)Anyoneelsenamedina publishedjudgment Whatcanbeidentified

(5)Court-appointedexperts (butnottreatingcliniciansor medicalprofessionals).

(6)Legalrepresentativesand judges.

Caselaw

•ClaytonvClayton[2006]EWCACiv878, [2005]Fam83)

•ReWebsterinNorfolkCountyCouncilv Webster[2007]1FLR1146

•TicklevHerefordshireCountyCounciland Ors[2022]EWHC1017(Fam)(Mrs JusticeLieven)

•TicklevFatherandMother[2023]EWHC 2446(Fam)(MrsJusticeLieven)5October 2023

Risks

-Article8(righttofamilylife)andArticle10 (freedomofexpression).

-Howwillthataffectjudicialdecision making?

-Cherrypicking?

-Independenceandintegrity,openness?

-Abilitytoparticipateinproceedings? -Thechildren?

Transparency:BehindClosedDoors

PresentedbyNaomiDean nde@no5.com Thankyouforlistening!

Orla Grant

Call: 2005

"Orla is brilliant, well organised and methodical in her approach."

Chambers UK 2024

Orla is an experienced junior barrister who regularly advises, drafts documents and appears in Court at all levels (including the High Court and Court of Appeal) in all aspects of family law including ancillary relief, injunctions and children both private and public law.

Notable Cases

Re CTD (A Child: Rehearing) [2020] EWCA Civ 1316

Re L (A Child) [2014] 2 FLR 972

Orla represented the child in this case, before the Court of Appeal. The mother of the child was accused of having sexually abused her younger brother and the family court was proceeding to a fact finding hearing on these allegations to enable the court to determine the risks posed to her own child. The court had heard an application for the younger brother (who was still a minor) to give evidence in the proceedings and refused the application. The appeal related to this decision. On behalf of the child, it was contended that the decision could not be upheld due to procedural irregularity, in support of the mother s appeal. Orla was complimented for her Skeleton Argument by the Court of Appeal judges.

Injunctions

Orla is regularly instructed in applications for injunctions, for both applicants and respondents, including non-molestation orders, occupation orders and injunctions under the inherent jurisdiction of the High Court. She is also experienced in conducting finding of fact hearings.

Private Law Children

Orla regularly represents applicants, respondents, children and extended family members in private law applications. She has experience of all aspects of such applications, including applications to relocate with children within and outside of the jurisdiction. Orla is regularly instructed by NYAS and Rule 16.4 Guardians in private law cases and is accustomed to dealing with complicated cases including those with issues of parental alienation, forced removal of one parent from the jurisdiction by another parent to preclude contact, sexual abuse, physical abuse and emotional abuse. She is accomplished in cross-examining experts and conducting fact finding hearings.

Public Law Children

Orla has extensive experience of public law work and represents Local Authorities, parents, children, extended family members and intervenors. She is regularly instructed in cases involving non-accidental injury, factitious illness, sexual abuse, physical abuse, neglect and emotional harm and has appeared in high profile cases and cases involving numerous experts. She also has experience in dealing with cases with cross-jurisdictional and immigration issues, where extended family members in other countries are being considered as carers, foreign states are seeking to intervene or a parent is being deported. Orla also represents clients who require the assistance of the Official Solicitor or who have cognitive functioning difficulties.

Across all aspects of her practice, Orla is meticulous in her preparation, this has been noted by judges and clients, and robust in her argument. She is known for her professional manner and sensitive approach to clients.

Memberships

Lincoln s Inn

Midland Circuit Association of Lawyers for Children

Qualifications

BA (Hons) Law with Spanish, University of Sheffield and Universidad de Granada, Spain

Orla is qualified to accept instructions on a Direct Access basis

Previous experience and other activities

Prior to undertaking pupillage at No5 Chambers, Orla gained experience across a broad range of practice areas through working at Donaldson and McConnell Solicitors in Northern Ireland and Quin and Hampson Barristers and Attorneys-at-Law, in the Cayman Islands.

Having studied law at the Universidad de Granada she gained an interest in foreign jurisdictions, which was further developed through her work at Quin and Hampson. Her employment in the Cayman Islands also involved translating and interpreting for Spanish speaking clients.

Orla has recently undertaken a personal challenge, sailing half way around the world as crew on a racing yacht participating in the Clipper Round the World Yacht Race. She sailed from Rio de Janeiro, Brazil to Cape Town, South Africa (in 2013) and from Qingdao, China to London (in 2014), raising money for Marie Curie in the process.

Grace Gwynne

Call: 2017

"Grace was an absolute powerhouse! She was fearless and confident in her questioning and stood her ground against a (in my opinion) very difficult Coroner. Her ability to multitask and think on the spot was phenomenal. Whilst questioning the witnesses, she also somehow managed to transcribe their answers, take instruction from me and cross reference medical notes/ exhibits"

Lay client from a clinical negligence inquest

Family

Grace is a highly regarded advocate regularly instructed in serious and sensitive cases. Her work sees her act as both alone or as a led junior in a range of complex cases.

Private Law Children

In private law, Grace represents parents and 16.4 guardians at all stages of proceedings. Grace has extensive experience in representing parents in multi-day fact-finding hearings involving allegations of sexual assault, domestic violence and implacable hostility within a relationship. Grace has particular expertise in cases involving significant parental alienation.

Grace provides written advice in these areas and will draft documents including case summaries, chronologies, skeleton arguments and position statements.

Grace regularly receives instructions in serious Family Law Act applications, including Non-Molestation Orders and Occupation Orders, Grace accepts last minute instructions.

Grace is adept at protecting vulnerable clients throughout proceedings, with a particular emphasis on ensuring that a client feels safe within proceedings. Grace has also successfully opposed malicious applications of this nature.

Public Law Financial Remedies

Grace accepts instructions on behalf of local authorities, parents, Guardians, competent children and intervenors. Her experience encompasses a wide variety of issues including serious domestic violence, intergenerational sexual abuse, child abuse, child sexual abuse, chronic neglect, significant emotional harm, substance abuse and non-accidental injuries.

Grace conducts fact-finding hearings with complex issues including inflicted injuries such as brain injury and multiple fractures, child trafficking, child sexual exploitation, factitious or fabricated illness. Advocacy frequently involves co-ordination of specialist expert evidence.

Grace also accepts instructions in FDAC proceedings.

Grace is skilled at conducting client conferences with vulnerable clients on sensitive matters and is often instructed due to her approachable nature and compassionate approach.

Before coming to the Bar, Grace worked as a criminal defence advocate in Connecticut, USA. Her criminal law background assists her in preparing family law cases that involve previous or concurrent criminal proceedings. Grace is used to dealing with cases where there ae concurrent criminal proceedings and issues of disclosure and PII.

Grace has experience of emergency hearings and is happy to accept last minute instructions.

Personal Injury

Grace is frequently instructed in: trials; interlocutory hearings; CCMCs; Stage 3 hearings; Infant approval hearings; pleadings advices on quantum.

Grace has a thriving personal injury practice and is regularly instructed by both Claimants and Defendants.

Grace is experienced in advising upon workplace accidents, RTAs, occupiers liability accidents and highways claims which result in catastrophic and life changing injuries. Grace s experience has also focused upon cases where there are allegations of fraud, including dealing with allegations of fundamental dishonesty. Grace is a thorough and meticulous cross-examiner. Grace has particular expertise in advising on cases that raise complex issues of procedure or law.

Prior to pupillage, Grace worked as a criminal defence and personal injury advocate in Connecticut, USA. The majority of her caseload involved assisting in catastrophic personal injury cases such as brain injury and fatal accidents.

Clinical Negligence

Grace regularly appears in interlocutory hearings, including case and cost management hearings and application hearings on behalf of

both the Claimant and the Defendant.

Inquests, Public Inquiries & Coronial Law (Personal Injury)

Grace represents clients at inquests, both in personal injury and clinical negligence. Recently, she represented the family of a 13 year old girl who was killed when her father was driving under the influence of alcohol and cocaine and collided with a brick wall. Grace secured an unlawful killing conclusion.

Grace is known for her compassionate approach with families whilst simultaneously able to grapple with In addition, Grace carries out clinical negligence inquests. Her recent inquests relate to a delayed diagnosis, a failure to act upon a sepsis diagnosis and delayed treatment.

Accreditations

Advocacy Scholarship from BPP University

Memberships

The Honourable Society of Lincoln s Inn

Awards

Junior Barrister of the Year Award 2024 Birmingham Law Society

Qualifications

Bar Professional Training Court, BPP [2016-2017] Law LLB, University of Manchester [2016]

Rhianna Manani

Call: 2018

authorities, parents, children s guardians, competent children, interveners and related parties in cases involving a wide range of issues including domestic violence, mental health, substance misuse and neglect. Rhianna also accepts instructions in FDAC proceedings. Rhianna is often instructed to represent vulnerable clients due to her compassionate and patient approach.

Rhianna represents parties in all aspects of financial remedy proceedings, from preliminary hearings through to final hearings.

Rhianna is often instructed by the Crown Prosecution Service in criminal proceedings across the Midlands.

Client Recommendations

I first instructed Rhianna while she was still a pupil and found her to be excellent. She is always very well prepared, knows her law, takes everything in her stride, is unflappable and confident, has excellent lay client care and achieves excellent results. I am delighted to continue to instruct her.

Rhianna is a tenacious advocate. Her preparation and attention to detail are second to none. Rhianna has the ability to tailor her excellent advocacy skills to suit each individual she represents in even the most challenging of circumstances. Rhianna is dedicated to achieving the best possible outcome for each of her clients. It is always a pleasure to work with Rhianna whether instructing her or appearing on the same case.

Other Experience

Prior to commencing practice, Rhianna worked as a County Court Advocate in the Civil Courts across the country for approximately 18 months. Rhianna also spent some time marshalling at the High Court of Hong Kong. During her studies, Rhianna worked in the events industry for 7 years, developing numerous transferable skills which she has brought with her to the Bar.

Rhianna currently undertakes pro-bono work via Advocate.

Accreditations

Advocacy Scholarship BPP University

Career Guarantee Scholarship BPP University

Bronze Duke of Edinburgh Award

Memberships

The Honourable Society of Gray s Inn

Appointments

Committee Member of the Midland Circuit Social Mobility Committee

Qualifications

Economics BSc Honours (2:1)

Graduate Diploma in Law (Commendation)

Bar Professional Training Course (Very Competent)

CASE LAW UPDATE 2024

1. Y (Failure to Clarify Immigration Status), Re [2024] EWFC 159

“This application demonstrates the need to ensure that the immigration status of a subject child in public law proceedings before the Family Court is clarified at the earliest opportunity and that any issues with respect to that child's immigration status are dealt with before final orders are made.”

“In circumstances where the evidence before the court at the IRH on 2 December 2022 demonstrates that it had been confirmed in June 2022 that Y had no immigration status in the United Kingdom and faced difficulties securing immigration status in Turkey, it is not clear from the papers available to this court why steps to regularise Y's immigration position were not taken prior to the court finalising the proceedings or why the court felt able to make a final order when the question of Y's immigration status in this jurisdiction, and indeed in the other jurisdiction with which she had some connection, remained to be established. The court appears to have simply proceeded on the basis that further steps would be taken with respect to regularising Y's immigration status in this country, with the assistance of the applicant local authority, without any clarity as to what those steps were or the chances that they would be successful.”

“In Re B (Children: Abduction: Consent: Oral Evidence: Art 13(b)) [2023] Fam 77, Moylan LJ made clear that, in circumstances where there are increasing numbers of cases in which the question of immigration status is relevant, it is important that this issue is raised at the outset of the proceedings so that the need for evidence can be addressed at that stage.”

“Part 12 of the FPR and PD12A make clear that in care proceedings under Part IV of the Children Act 1989 the court must consider at the outset of proceedings issues arising from the subject child being a foreign national or the family having a connection to a foreign jurisdiction. PD12A paragraph 1.3 stipulates that in applying the provisions of FPR Part 12 and the Public Law Outline, the parties must have regard, inter alia, to the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. The PreProceedings Checklist in the Public Law outline in PD12A specifies that the Checklist Documents will include foreign orders and judgments and Immigration Tribunal

documents. The Public Law Outline requires the court, within a day of issue, to consider the question of jurisdiction in a case with an international element. The Standard Directions on Issue and Allocation that the court is required to give within a day of issue include a direction identifying whether a request has been made, or should be made, to a Central Authority or other competent authority in a foreign state or a consular authority in England and Wales in a case with an international element. The Standard Directions on Issue and Allocation also provide for directions to send requests for disclosure to public bodies in this jurisdiction.”

“With respect to the question of immigration status, in care proceedings involving a foreign national child or a family with a connection to a foreign jurisdiction, the immigration status of the subject child(ren) and the parents must be considered at the point the proceedings are issued. This will involve, as a first step, the court making a Standard Direction on Issue and Allocation under the Public Law Outline within a day of issue seeking disclosure from the Home Office via Form EX660 of information on the immigration status of the child and the parents. Once that information is available, and pursuant to Stage 2 of the Public Law Outline, the parties must at the Advocate's Meeting, and the court must at the Case Management Hearing, identify any issues arising from the child's immigration status and finalise further directions for securing the evidence or expert opinion required to address those issues at the Issues Resolution Hearing, or at the final hearing if one is required, before a final order is made. It is not acceptable for issues regarding immigration status to be left to be investigated at the IRH or final hearing and even less acceptable for them to be left unresolved at the point the court makes a final order.”

2. M (a child) [2024] EWCA Civ 1000

Appeal by a Local Authority against refusal of an application for a placement order in respect of a 4 year old child (M). The appeal was allowed in a decision of Lady Justice Macur DBE, which reminds of the dangers of using Lady Hale’s phrase ‘nothing else will do’ as a hyperlink so as to bypass the need for a full welfare evaluation of all relevant factors.

The Judge had 3 options:

1) Reunification with the Mother;

2) Long term-foster care; and

3) Adoption

The Judge, had dismissed the option of the child returning to the Mother’s care. He then went on, through his comments, to dismiss the prospective of a placement order by stating that ‘this was never really an adoption case’. Therefore, unsurprisingly, he was left with long term foster care.

The Court of Appeal stated that once the judge had dismissed the option of M returning to her mother’s care, a proper consideration of ‘nothing else will do’ required the Judge to evaluate the pros and cons of long-term fostering versus adoption. The options were to be compared side by side in a balanced, holistic fashion, further to guidance from the Supreme Court in B (a Child), Re [2013] UKSC 33 (12 June 2013) and as set out in subsequent court of appeal decisions such as re B-S [2014] 1 WLR 563, In re R (A Child) (Adoption: Judicial Approach) [2015] 1WLR 3273

The Judge failed to do this. Instead the Judge adopted a linear approach which has been cautioned against in the illustrated examples given by McFarlane LJ in G (A Child) [2013] EWCA Civ 965 (30 July 2013) para 50, and repeated in para 43 onwards in B (A Child), Re (Adequacy of Reasons) [2022] EWCA Civ 407 (25 March 2022)

The court of appeal reminded itself of Re W (A child) (Adoption: Grandparents’ Competing Claim) [2017] 1 WLR 889, § 68 and 69 when McFarlane LJ (as he then was) cautioned against utilising the phrase “nothing else will do” as a “sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons. However this is exactly what this Judge did. In his extempore judgment he stated, ‘the law is clear, Re BS, nothing else will do.’

The case was remitted for a re-hearing before a different judge.

3. Re D (Children: Interim Care Order: Hair Strand Testing) [2024] EWCA Civ 498

This case demonstrates the importance of:

a) Carefully analysing and examining hair strand test results in detail;

b) Position statements and the duty of all advocates to ensure accurate and detailed information is provided to the Judge, who is likely to have a busy list;

c) The high test for interim removal from a parent or a primary care giver;

“In all cases involving this type of evidence (hair strand testing), it is vital that the advocates:

i) Draw the Judge's attention to what the science can and cannot tell you, as explained in Islington v M and Re H;

in London Borough of Islington v M & R [2017] EWHC 364 (Fam), a case of hair strand testing for drugs. He said this at paragraph 32:

“It is particularly important to emphasise that each of the three experts in this case confirmed that hair strand testing should never be regarded as determinative or conclusive. They agree, as do I, that expert evidence must be placed within the context of the broader picture, which includes e.g. social work evidence; medical reports; the evaluation of the donor's reliability in her account etc. These are all ultimately matters for the Judge to evaluate.”

ii) Carefully examine the hair strand test reports in full; as far as it is thought helpful or appropriate to do so, they should distil their contents accurately so as to provide with Judge with a reliable summary, not just a rehearsal or précis of the general 'Summary' or 'Opinion' section;

iii) Assist the Judge to consider the hair strand test results in the context of the whole of the evidence, including:

a) The statements of those who are alleged to have exposed the children to the drugs identified;

b) Other evidence (i.e., from observation) which may suggest drug use within the home;

c) Other evidence which may suggest that drugs are not used within the home;

d) The presentation of the children and the adults;

e) The history of the family generally.

This is all the more important, of course, in cases where the test results are in the lower range.”

“Before leaving this aspect of the appeal, I would like to make an observation about an aspect of the case which did not feature large in the submissions but which concerned me, namely the fairness of the process which led to the decision to remove these children. In particular:

i) The application of the Local Authority seeking 'case management' (29 February 2024) "to deal with continued placement" (see §16 above) did not specifically refer to the prospect of removal of the children, and was not expressed to require urgent determination; the letter issued on the same day simply said that "the Local Authority may ask the court to approve the removal of the children" (§16). The Local Authority's radical change of care plan was only articulated formally and unambiguously for the first time at the hearing on 22 March 2024, one working day before the hearing itself (note that the Judge herself commented that "the local authority applied last week at short notice for the court to endorse the removal of all four children": my emphasis); the intention of the Local Authority to remove the children should have been made more clear at a much earlier stage;

ii) There was some uncertainty about the extent of disclosure of the written evidence to the maternal grandmother and uncle prior to 26 March 2024 (she was and is not a party to the proceedings and not therefore entitled to the documents); the order made on that date specifically provides for extensive disclosure of documents to her, but only after removal had been ordered;

iii) The maternal grandmother was neither present nor represented at the hearing on 26 March 2024; the hearing had been listed at short notice and, given her work commitments, she was not able to participate effectively or at all; she should have been given the chance to attend, and the process would have been more complete had the Judge known her view;

iv) The children had not had any chance to participate in the process, and/or contribute (through the articulation of their wishes and feelings) to the decisions made about them,

v) It was important that all of the key participants in the process should have access to the relevant evidence. The social work statement had been delivered only on the morning of the hearing (in breach of the direction for it to have been filed and served the day before) denying the grandmother and the uncle any (or any real) chance to consider it.

vi) In a case involving such a drastic change of plan, the Judge might have permitted or possibly encouraged some limited oral evidence to test out the plans.”

“There are of course cases where there is no alternative to interim removal. But whenever a child is removed from a family placement on an interim basis, the court must recognise that its

short term order may have lasting consequences. A move into the care system can become a watershed that progressively limits the options for family placements as time passes (see Re DE and G v N County Council at paragraph 50 above). In this case, whatever the ultimate decision about the children's futures, it is fortunate that there was someone (the mother) who was motivated to seek and obtain a stay of the Judge's order on the afternoon that removal was due to occur. Had that not happened, the children would already have been in foster care when the latest test results were received and, once their lives had been so disrupted, it cannot be known what position the local authority and the Guardian would then have adopted, what the reaction of the family would have been, and what course the court would then have taken. These events illustrate why it is so important that orders for interim removal are only made when the exacting legal test is satisfied.”

4. W & Ors (Implementation of Adoption Plan Pending Appeal) [2024] EWCA Civ 837

The Court of Appeal gave a judgement setting out what should be done if there was an appeal pending against a placement order and criticising the local authority for its conduct in arranging farewell contact and despite a stay matching the children with adopters.

Baker LJ gave clear guidance as to what the Local Authority should do when a care and placement order was being appealed and a stay had been granted:

(1) A local authority should take no steps to implement a placement order and care plan for adoption until after the expiry of the 21-day period for filing a notice of appeal against the order.

(2) After that point, an application for permission to appeal can only proceed if the proposed appellant is granted an extension of time for filing the notice pursuant to CPR 52,25(1) and Practice Direction C paragraph 4. In practice, given the life-changing importance of placement orders, extension of time is frequently granted if the appeal notice is filed fairly shortly after the appeal period has expired.

(3) In cases where, after the expiry of the 21-day appeal period no appeal notice has been filed and the local authority is concerned that further delay would be contrary to the child’s interests, it should inform the other parties that it intends to proceed to take steps to implement the placement order and care plan. Having been given such notice, the onus is then on any

party wishing to appeal to file an appeal notice without further delay and seek an immediate stay of the order.

(4) Once an appeal notice has been filed and served on the local authority, but before a decision has been made on the application for permission to appeal and/or on an application for a stay, if the local authority is concerned that delays in the process are having a damaging effect on the child, it should contact the Civil Appeals Office so that consideration can be given to accelerating consideration of the application for permission to appeal. It is not acceptable for the local authority to proceed as if the application for permission to appeal has never been filed.

(5) The local authority and any other respondents to the application for permission to appeal against a placement order must give urgent consideration to whether they should file a respondent’s statement pursuant to CPR Practice Direction 52C Paragraph 19(1) and, if they decide to file such a statement, to do so without delay.

(6) If this Court, either before or on granting permission to appeal, grants a stay of the proceedings and directs that no further step be taken with regard to the placement of the children under the placement orders pending determination of the appeals, any step taken in breach of such a direction by this Court is manifestly unlawful and prima facie a contempt of court.

(7) If there is any particular step that the local authority wishes to take to implement the placement order, it may apply to this Court for the stay to be varied . Reasonable requests of this sort are unlikely to be refused provided they do not adversely affect the welfare of the children or prejudice the outcome of the appeal. But it is difficult to think of any circumstances in which it would ever be appropriate for a farewell contact visit to go ahead when an appeal against a placement order is outstanding.

5. A (Notification of Father and other Family Members), Re [2024] EWHC 1747 (Fam)

Mr L. Samuels KC, sitting as a Deputy High Court Judge, considered applications by a mother in care proceedings about a baby for an order pursuant to FPR PD12C dispensing with service of form 6A (notice to non-parties) on the putative father and an order under the inherent jurisdiction to prevent any party from notifying other relatives.

Peter Jackson LJ has previously summarised the principles to be applied when this issue arises:

Peter Jackson LJ said that the principles governing decisions as to whether a putative father or a relative should be informed of the existence of a child who might be adopted can be summarised as follows:

“(1)The law allows for “fast-track” adoption with the consent of all those with parental responsibility, so in some cases the mother alone. Where she opposes notification being given to the child’s father or relatives her right to respect for her private life is engaged and can only be infringed where it is necessary to do so to protect the interests of others.

(2)The profound importance of the adoption decision for the child and potentially for other family members is clearly capable of supplying a justification for overriding the mother’s request. Whether it does so will depend upon the individual circumstances of the case.

(3)The decision should be prioritised and the process characterised by urgency and thoroughness.

(4)The decision-maker’s first task is to establish the facts as clearly as possible, mindful of the often limited and one-sided nature of the information available. The confidential relinquishment of a child for adoption is an unusual event and the reasons for it must be respectfully scrutinised so that the interests of others are protected. In fairness to those other individuals, the account that is given by the person seeking confidentiality cannot be taken at face value. All information that can be discovered without compromising confidentiality should therefore be gathered and a first-hand account from the person seeking confidentiality will normally be sought. The investigation should enable broad conclusions to be drawn about the relative weight to be given to the factors that must inform the decision.

(5)Once the facts have been investigated the task is to strike a fair balance between the various interests involved. The welfare of the child is an important factor but it is not the paramount consideration.

(6)There is no single test for distinguishing between cases in which notification should and should not be given but the case law shows that these factors will be relevant when reaching a decision:

(i)Parental responsibility. The fact that a father has parental responsibility by marriage or otherwise entitles him to give or withhold consent to adoption and gives him automatic party status in any proceedings that might lead to adoption. Compelling reasons are therefore required before the withholding of notification can be justified.

(ii)Article 8 rights. Whether the father, married or unmarried, or the relative have an established or potential family life with the mother or the child, the right to a fair hearing is engaged and strong reasons are required before the withholding of notification can be justified.

(iii)The substance of the relationships. Aside from the presence or absence of parental responsibility and of family life rights, an assessment must be made of the substance of the relationship between the parents, the circumstances of the conception, and the significance of relatives. The purpose is to ensure that those who are necessarily silent are given a notional voice so as to identify the possible strengths and weaknesses of any argument that they might make. Put another way, with what degree of objective justification might such a person complain if they later discovered they had been excluded from the decision? The answer will differ as between a father with whom the mother has had a fleeting encounter and one with whom she has had a substantial relationship, and as between members of the extended family who are close to the parents and those who are more distant.

(iv)The likelihood of a family placement being a realistic alternative to adoption. This is of particular importance to the child’s lifelong welfare as it may determine whether or not adoption is necessary. An objective view, going beyond the say-so of the person seeking confidentiality, should be taken about whether a family member may or may not be a potential carer. Where a family placement is unlikely to be worth investigating or where notification may cause significant harm to those notified, this factor will speak in favour of maintaining confidentiality; anything less than that and it will point the other way.

(v)The physical, psychological or social impact on the mother or on others of notification being given. Where this would be severe, for example because of fear arising from rape or violence, or because of possible consequences such as ostracism or family breakdown, or because of significant mental health vulnerability, these must weigh heavily in the balancing exercise. On the other hand, excessive weight should not be given to short term difficulties and to less serious situations involving embarrassment or social unpleasantness, otherwise the mother’s wish would always prevail at the expense of other interests.

(vi)Cultural and religious factors. The conception and concealed pregnancy may give rise to particular difficulties in some cultural and religious contexts. These may enhance the risks of notification, but they may also mean that the possibility of maintaining the birth tie through a family placement is of particular importance for the child.

(vii)The availability and durability of the confidential information. Notification can only take place if there is someone to notify. In cases where a mother declines to identify a father she may face persuasion, if that is thought appropriate, but she cannot be coerced. In some cases the available information may mean that the father is identifiable, and maternal relatives may also be identifiable. The extent to which identifying information is pursued is a matter of judgement. Conversely, there will be cases where it is necessary to consider whether any confidentiality is likely to endure. In the modern world secrets are increasingly difficult to keep and the consequences, particularly for the child and any prospective adopters, of the child’s existence being concealed but becoming known to family members later on, sometimes as a result of disclosure by the person seeking confidentiality, should be borne in mind.

(viii)The impact of delay. A decision to apply to court and thereafter any decision to notify will inevitably postpone to some extent the time when the child’s permanent placement can be confirmed. In most cases, the importance of the issues means that the delay cannot be a predominant factor. There may however be circumstances where delay would have particularly damaging consequences for the mother or for the child; for example, it would undoubtedly need to be taken into account if it would lead to the withdrawal of the child’s established carers or to the loss of an especially suitable adoptive placement.

(ix)Any other relevant matters. The list of relevant factors is not closed. Mothers may have many reasons for wishing to maintain confidentiality and there may be a wide range of

implications for the child, the father and for other relatives. All relevant matters must be considered.

(7)It has rightly been said that the maintenance of confidentiality is exceptional, and highly exceptional where a father has parental responsibility or where there is family life under article 8. However exceptionality is not in itself a test or a short cut; rather it is a reflection of the fact that the profound significance of adoption for the child and considerations of fairness to others means that the balance will often fall in favour of notification. But the decision on whether confidentiality should be maintained can only be made by striking a fair balance between the factors that are present in the individual case.”

The Judge confirmed that the maintenance of confidentiality in cases where one of the possible options may be adoption is ‘exceptional’. The Judge went on to say “In the vast majority of cases a father without parental responsibility should be notified of the existence of Part IV proceedings, even where previously unaware of the existence of the child. Equally, a local authority needs to be empowered to discuss the situation with a wide range of family members to ensure that all possible family placements options are considered as an alternative to adoption.”

However, in this case, notwithstanding a possible adoption being adoption, the Judge determined that confidentiality should be maintained. It is clear that there is no ‘one size fits all’ answer and each case will depend on its facts. What is of note in this case is that the concerns were not only in relation to the father. The mother was fearful of the maternal grandfather’s reaction, due to cultural and religious factors.

6. D (Parentage: Local Authority Application) [2024] EWHC 305 (Fam)

Mr Justice Poole has refused the local authority’s applications for DNA testing and declaration of parentage, in the context of public law proceedings, notwithstanding that the adults involved created what he called ‘a welfare minefield’ in conceiving the child (D) and had the potential to cause the child emotional harm.

The Court proceeded to determine 3 preliminary issues:

1) Does the Local Authority have ‘sufficient personal interest’ in the determination of the section 55A Family Law Act 1986 application? If not, then in accordance with s.55A(3), the Court must refuse to hear that application

Section 55A Family Law Act 1986 states that, ‘Except in a case falling within subsection (4) below, the court shall refuse to hear an application under subsection (1) above unless it considers that the applicant has a sufficient personal interest in the determination of the application’

There is no guidance from case law as to what ‘interest’ means however the Court determined that the words should be given their plain, literal and ordinary sense. Therefore ‘interest’ is not just having a desire to know but in the sense of having a stake in the determination. Once ‘interest’ is determined, it then needs to be enough to cross the threshold of the definition of ‘sufficient’ (it cannot be of little substance).

In this case, the Court determined that the Local authority did not have a stake in, or connection with, the determination of the child’s paternity therefore the Local Authority did not have sufficient personal interest and therefore the Court must refuse to hear its application.

2) Is the child’s parentage a matter that ‘falls to be determined’ in the public law proceedings?

Section 20(1) of the Family Law Reform Act 1969 states, ‘in any civil proceedings in which the parentage of any person falls to be determined, the court may, either of its own motion or on an application by any party to the proceedings…’

It was agreed that public law proceedings were civil proceedings but that the court may only make a direction under s.20 if the child’s parentage ‘falls to be determined’.

The Court took guidance from the January 2023 view of the President of the Family Division when re-launching the Public Law Outline which states that once threshold has been met, the remaining issues for the Court to consider are:

i. The permanency provisions (within the s31A care plan)

ii. Contact arrangements; and

iii. What final orders should be made

This present case was not one in which the Local Authority was seeking or likely to seek a care order therefore consideration of the permanence provisions of a section 31A care plan would not be required.

The Court was therefore tasked to determine questions of contact and final orders and the Court could not see that the determination of D’s biological parentage was needed to resolve those issues. The Court held that D’s parentage does not fall to be determined and therefore a section 20 order for testing cannot be made.

3) If so, would it be contrary to the child’s best interests to make a direction for DNA testing?

The court noted that if parentage “falls to be determined” then the court has a discretion whether to make a s20 direction but ought to permit testing of a child unless satisfied that it would be against their best interests; this follows from the court of appeal decision in Re L (Paternity Testing) [2009] EWCA Civ 1239, applying the House of Lords decision in S v S [1970] 3 All ER 107; W v Official Solicitor[1970] 3 All ER 107.

The court noted that the circumstances of this case are exceptional, and the exercise of the discretion in this case would be finely balanced. the court concluded that in the event that D’s parentage fell to be determined, it would not be contrary to his best interests to direct DNA testing. However, the court would in those circumstances direct a plan for the communication of the results of testing, and a further hearing at which the court would consider the communication plan and have given directions accordingly.

In case the court was wrong to consider that the local authority does not have sufficient personal interest to apply for a declaration of parentage, the court went on to consider whether the court should nevertheless refuse to hear the application under FLA 1986 s55A on the grounds that “the determination of the application would not be in the best interests of the child.”

7. London Borough of Enfield v E (Unconscionable Delay) [2024] EWFC 183

“As noted above, I cannot leave this case without addressing the manifest and wholly unconscionable delay that has occurred. Bluntly, this case has demonstrated nearly every type of poor practice that FPR 2010 Part 12 and, in particular, the Public Law Outline in PD12A was intended to eradicate. That these matters of poor practice are still occurring demonstrates that the provisions of the PD12A are still not being applied consistently and with sufficient rigour by the courts, legal practitioners and welfare professionals.”

“In the foregoing statutory context, there have been multiple examples in this case of a failure by the court, legal practitioners and welfare professionals to comply with the law put in place by Parliament to ensure that children do not suffer damaging delay in the determination of care proceedings brought in respect of them. The failure in this case to comply with law governing delay and the case management of proceedings under Part IV of the Children Act 1989 has led to a new-born child remaining in foster care for over two years whilst the errors and omissions summarised above played out before nine different judges over seventeen hearings involving thirty-three different advocates.”

“A particular feature in this case has been the repeated applications and directions for assessment of the mother notwithstanding the breakdown of the residential assessment within two weeks in circumstances where the mother required prompting with respect to each and every parenting task, the psychological assessment by Dr Braier which concluded that the mother did not have the parenting knowledge needed to understand a child's practical or emotional needs and the conclusion of the PAMS parenting assessment that the mother would need another suitable adult to take on the role of primary carer for E's care at all times. It is to be acknowledged that, for the reasons set out in Re H (Parents with Learning Difficulties: Risk of Harm), care must be taken to ensure that a parent with learning difficulties is given a fair chance to demonstrate that they have the capacity to care for their child, that compassionate welfare professionals will find it hard to rule out a parent who is unable to parent through no fault of their own and that legal practitioners are required to act in the best interests of their client. However, to continue to pursue assessments in the face of clear forensic evidence that a parent does not have the capacity to parent their child not only causes prejudicial delay for the child. It also amounts, ultimately, to cruelty masquerading as hope for the parent.”

“As made clear by Sir James Munby in Re P-S (Children) [2018] 4 WLR 99 at [68], if the child has never lived with the proposed Special Guardian the court will need to consider what steps

need to be taken and over what period to test the proposed placement, in respect of which question the opinion of professionals will be of crucial importance. Having regard to the evidence of the professionals in this case, I am satisfied that the transition plan across two months by which E's will move into the care of the paternal aunt is appropriate, subject always to the need for flexibility having regard to any change of circumstances consequent on E's forthcoming surgery.”

PAUL HUNTER Forensic

Testing Service

• 14yearsdevelopingBestPracticeinCareProceedings

• SupportedbySeniorJudges,Barristers,FamilySolicitorsLocalAuthorities'

• 13Experts,combinedexperience>75yearsinthissector

• ForensicLaboratorybasedinMirfieldWestYorkshire

• OfferthemostcomprehensiveandcurrentrangeofdrugsinHSTintheUK

• UKAS17025accreditedandcompliantwithlatestEuropeanLab51standards

• Certifiedby SocietyofHairTesting and SocietyofToxicologicalForensicChemistry HomeOfficeLicensed

• OperateForensicstandard,mobilecollectionclinicsacrosstheUK ParliamentaryReviewCommitteeBestPracticeRepresentativefrom2020

•Testresultsinisolationcan’tanswerthisquestion

•Testresultsareonlyonepieceofalargejigsaw

•ProcessusedforinstructingHSTevidenceandused bytheindustry toproduceandreporttheevidenceisnolongerfitforpurpose

• ThesciencesupportingHairStrandTestresultsisveryreliable

•Extractingdrugsfromhair

•Findingdrugsiftheyarepresentinthehair

•Correctlyidentifyingthedrugspresent

•Providingapproximatelevelsofthedrugs(withinacceptablevariation)

•Testresultscanthereforebeconsideredas‘factualevidence’

•Thisoversimplifiedprocessofinterpretationcannotachieve‘balanceof probability’ IsHSTEvidenceReliable

However,compellingevidenceconfirmsthattheprocessusedforthe last30years tointerprettestresultsisunreliableandmisleading

ReportingProcess>30yrsOld

•Science,knowledgeandprocesseshavedevelopedexponentiallyoverlast30yrs

•However,thisknowledgeisignoredwheninterpretationandopinionisformed

•TestingcompaniesreportTest Resultsapplyingarigidcut-offlevel:

• Resultabovecut-offlevel= ‘Positive’ =Chronicdrug/alcoholuse

• Resultbelowcut-offlevel= ‘Negative’ =Noevidenceofdruguse

•CrudeattemptbySoHTtodifferentiate DrugUse from PassiveExposuretodrug

•Intendedasgeneralguidelines fornon-specialistlabs

•DoesnotrequireExpertintervention,butopinionspresentedin ‘Expert’reports!!

•ThisprocessonlysuitableforWorkplace,ClinicalandEpidemiologicaltesting

•IthasnoplaceasevidenceincourtorPLOprocess

•InterpretationandreportingbyuseofCut-Offsignores:

•Allprevailinginfluences (Haircolour,Hairhygiene,Hairtreatments,Environmentetc.)

•Allrelevantcontext (previoushistory,changesinlivingenvironment,socialpatterns,etc)

•CrucialChainofEvidence (HDphotographycollectionprocess,Observations,etc.)

•Allpreviouscomprehensivecasedatafiles (Resultswithallaboveforeachcase)

•Resultsinmisleadinginterpretations,misreportingandmiscarriagesofjustice

•IndustriesuseofHigh,MediumandLow descriptorsconfuseandmisleading

•Evidenceconfirmsusingcut-offs can’tachieve ‘balanceofprobabilities’

•HighCourtconcludedcut-offsforHSTevidencenotsuitableforcourt (ReH.2017)

CannabisProfile–Regularuser

VariabilityofTestResults

Differentlaboratoriesprovidedifferentresultsforthesamesamples

SocietyofHair

Testing EQAS (ExternalQuality Assessment Scheme) forCocaine inHair

HairColour&EthnicityBias

Testingformelanin contentineachhair segmentcanensure haircolourand ethnicityare accountedforinthe interpretationand opinionsformedin eachcase.

Cocaine-SignificantBiasfromHairCollectionSite

• Collectinghairfromdifferentareas onthescalpleadstotestresults havingavariabilityofupto105folddifferenceinlevelreported

• Upto~10-folddifferenceon adjacentsites

• Differentfordifferentdrugs

EtGSignificantBiasfromHairCollectionSite

Resultsaboveor belowCut-off dependingonthe siteofcollection

• EtGvariance rangedfrom2.5 to7.5fold differences

Overallminimal influencefrom sweat

Influences-HairTreatments

• BleachandPermanentHairDyecan removeupto80%ofdrugfromhair

• TestingforMelanincontentand Oxidative markerstoestablishifhairis representativeofdrug/alcoholuse

• Drugstransferredalongthehair

• Drugsabsorbedintothehair

• Thermalstraighteninghairconverts cocainetoAEME–compound associatedwithCrackCocaine

Distributionof Cocaine Levels

Distributionof Sweatlevels

UlfMeier. 5August2019

ImpactofHairDyeandThermalTreatment

£30to£40per

Whenhaircompromised:NailClippings

•Collectedineverycasewhereavailable

•Usedtoidentify drug use and alcohol use (EtG)

•Nomelaninso nocolourdiscrimination likehair

•Drugsidentifiedwithinaroundafewdays toaweek ofuse

•Periodscalculatedbylength,region and growthrates

•Fingernailsusuallyaround3to9month history

•Toenailsusuallyaround5to16month history

Whenhaircompromised:BodyhairTesting

•Collectedineverycasewhereavailable

•Differentsites-differenttimeperiods

•Chest–around4to9months

•Arm–around2to6months

•Leg–around9to12months

•Axillary(armpit)–4to9months

•Lesssusceptibletopassivecontamination

ChainofEvidence

MisreportingWhenUsingCut-offs

•Applying SoHTCut-offs toresultsof~3000FTShairsamples

•~12%hairsamplesincases ‘not’ usingHeroin ‘Positive’

•~18%hairsamplesincases ‘not’ usingCocaine ‘Positive’

•~22%hairsamplesfromchronicHeroinusers ‘Negative’

•~20%hairsamplesfromchronicCocaineusers ‘Negative’

•~60%hairsamplesfromchronicCannabisusers ‘Negative’

• Numerousabuseddrugsnottestedfor!!

ReH(AChild:HairStrandTesting)[2017]EWFC64, [2018]1FLR762PeterJacksonJ

• JudgmentincareproceedingsinwhichMrJusticeJacksonconsiderstheaccuracy ofhairstrandtestingforcocaineuse.

• 5expertsdebatedwhetherresultsrepresentedCocaineuse or Passiveexposure DebatecenteredonthelevelsofCocaineinhairwhichwereconsideredas‘Low’

• Expertscouldnotagreeonwhethermotherhadusedcocaineornot!!

• OneExpertexplainedwhytheycouldnotreachanagreedpositionandnotedwhy: “therearevariablesinrelationtohaircolour,race,haircondition(bleachingand straighteningdamageshair),pregnancyandbodysize.Thentherearethe variablesinherentinthetestingprocess.”

• However,theseandotherinfluencingfactorsandcontextwerenotestablishedin thiscaseandthereforetheirinfluencecouldnotbeconsidered

H(AChild-HairStrandTesting)[2017]EWFC64

TestResultsfortheMother

(6cm)

ImpactofHairDyeandThermalTreatment

£30to£40per day3to4days perweek

UseofCocaine£100perdayfrom OcttoJan

Cut-OffLevelforCocaine

£20to£30per day2to3days perweek

HighCourtGuidance (ReH)

• Whenreferencingthedruglevelsandapplicationofcut-offsMrJusticeJackson providedthefollowingguidance:

“Iwouldsuggestthatreportsrecordallfindings,….”

“Itisattheinterpretationstagewheretheresultscanbejudgedinthefull contextofthecaseandallassociatedinfluencing factors.”

“Itwouldbeartificialtorequirevaliddatatobestruckfromtherecordbecauseit fallsbelowacut-offlevelwhenitmaybesignificantinthecontextof other findings.

IndustryResponsetoChallenge

InaletterfromCompanyXtosolicitorsandaLocalAuthority, whenchallengedon whethertheyfollowHighCourtguidanceReH 2017:

• “WhilstithasbeenstatedbyFTSthattheydonotapplyreportingcutofflevels, CompanyXusethereportingcutofflevelsrecommendedbytheSocietyofHair testing(SOHT)toidentifychronicrepeateduse,andlevelspresentbelowthese cutoff’saredetailedas‘NotDetected’.

• WhilstitwasrecommendedinthejudgementofReHthatresultsbelowthecut offlevelsarereported,currentlyCompanyXdonotdothis.Thisisbecause CompanyXarerequestedtotestthehairforevidenceof use.Therefore,to minimisethelikelihoodofaresult duetoexposurebeingreportedasuse, CompanyXapplythesecutofflevelstoevaluatetheresultswithcaution.”

ReD(ChildrenInterimCareOrderHairStrandTesting) [2024]EWCACiv498(10May2024)

• ThiscasehighlightedagainthemisguidedassumptionsthatHSTresults aredefinitiveevidence,resultinginadvocatesonlypresentinga summaryandnotthefullexpertopinionleadingtoremovalofchildren

• Guidanceprovided: Itisstillanevolvingfield,and,aspreviouscaselawhascautioned, hair strandtestinghasitslimitations.

Thevariabilityoffindingsfromhairstrandtestingdoesnotcallinto questiontheunderlyingscience butemphasisestheneedtotreatdatawith propercaution.

Secondly,ReHPeterJacksonJreinforcedtheneedforexpertsto fullyand faithfully explaintheirfindings

ProfessorA.RobertW.Forrestpresentedapaper; ‘HairStrandAnalysisEvidence inCourt’whichconcluded: “Toxicologistsreportinghairstrandanalysisresultsshould moveawayfromsimplyprovidingresultsbytheapplicationof cut-offs,toaprocessofassistingtheCourtsasexpertsby providingdatasupported,evidence-basedopinions.”

PLOLaunchGuidance

•AtthePLOrelaunchKeehanJsetout20keypointsincluding:

• Assessmentcarriedoutinpre-proceedingsaretostandasevidenceincare proceedingsandarenotgenerallytoberepeated.

• Everyhearingmustbeeffective (KeehanJ)

TheSolution– ChangetheProcess

•Thisis opinionevidence soengageandinstructanexpert attheoutset

•Providecasespecificcontext,historyandthequestionsissuesthatneedto beaddressed,andupdatetheexpert onnewinformationpostinstruction

•EnsureexpertprovidesguidanceonP25applicationtocoverallprocesses andstepsrequiredintheinvestigationandtestingtomakecertainthe evidenceisreliable,sothereportaddressestheissuesineachcase

•Fullforensicinvestigationmustbeundertaken,andfullrangeofsamples takenalongwith crucialchainofevidence

•Fullstatementoftruthmustbetakenfromtheclienttoestablishprevailing contextandinfluencingfactorsthatlikelyimpactthefindingsfromthetesting

LaboratoriesMustAddresstheChallenges

•Nocut-offsusedtofilterresults–reportallfindings (ReH2017)

•Moresophisticatedandcost-effectivetestingprocess–

•Covercomprehensiverangeofrelevant/currentdrugs (NPS’s)

•Testingtoestablishifthehairisrepresentativeofdrug/alcoholuse

•Testingtomeasuredrugincorporation(melanin)

•Moresensitivetesting–detectdrugsindamagedhair,poorlyincorporated drugs(Spice,Cannabis)andRed,GreyandBlondehair

•Additionalsamples (eg.moresegments,bodyhair,nails) testedasrequired

•AdditionalcompoundsincludingNPS’sshouldbenotifiedwithout costand reportedwhenrequiredwheninstructed

Reporting

•Comprehensivepreviousdatausedandsophisticateddatacollection and processingtoolsappliedtoachievebalanceofprobabilities

•ForFTSinvolvesutilisationofAIandMLtoolswhichprovideshigheststatistical significanceforeachopinioncapturedinExpertRulesystems forreporting

•Processcontinuallyimprovesstrength,reliabilityandutilityofevidence

•Providesandconsistencybetweenexperts

•Producesbalancedevidencetoassistinunderstandingwherethisispositioned incontextwithotherknowledgeandevidenceinthecasetoassistdecision making

BalancedEvidence SupportsDecisionMaking

•Whenpresentingthisevidence,theexpertopinionsmustbebalanced, not binary

•Morelikelythannot–Verylikely–Extremelylikely

•Morelikelyopinionbalancedwithpossiblebutlesslikelyexplanation[s]

•Equallylikelyscenariosproviding2or3possibleexplanations

•Inallcaseswhereevidenceisinconclusive,guidanceisprovided

•Recommendationsgivenonfurthertestingandinvestigationrequiredto enable afinalopiniontobeprovidedthatachievesbalanceofprobabilities

•Thelikelihoodoftherecommendedworkachievinganopinionthatis‘more likelythannot’orthatitwouldstrengthentheevidenceisalsoprovidedfor informeddecisionstobemadeintermsofproportionalityandcost

NovelPsychoactiveSubstances

•UKisEurope’sbiggestmarketforNPScompounds

•Newsubstancesconstantly beendevelopedandintroduced

•Presentsasignificantchallengefordetectionandmonitoring

•FTSworkwith MANDRAKE‘earlywarning’groupto identifynewsubstancesso newtestscanbeintroduced

•Presently4maingroupsofNPScompounds ofconcern

• SyntheticOpioids

•SyntheticCannabinoids(Spicecompounds)

•StimulantsandHallucinogen’s

•DesignerBenzodiazepines

SyntheticOpioid-Nitazines

•TalibanstoppedopiumproductionMay22,Afghanistan>95%reduction inopiumproduction-whichsupplies~85%oftheEuropeanheroin

• Nitazenes (Protonitazene,Metonitazene)50to250xmorepotentthan Heroinandare causingaccidentaloverdoseanddeathsinseveral areasacrosstheUK

• NationalCrimeAgency earlierthisyearreported 65deaths from Nitazenesover6months,whichislikelyjustthetipoftheiceberg 20fataloverdoses inSouthWorcestershireareaalonefromNitazenes

• DeathsinTeessideandBirminghamfrom Nitazineshasprompted doctorstowarnpatientsofincreasedriskofoverdoseanddeath

•Nitazenesfoundmixedwithherointabletsandpowder

•Syntheticcannabinoids–mimiccannabis

• 32 differentsyntheticcannabinoidsreportedbyFTS,but constantlychanging.9commonpresently,latestadditionsare:

•ADB-BUTINACA,MDMB-4en-PINACA,5F-emb-PICAand newcompoundsINACA?andHEXANACA?

•UsedincombinationwithCannabisasminorormajor constituent

• d8-THC anewformofcannabisproducedfromCBDoil, avoidsdetectionwithconventionalcannabistestinginHair

OtherNPSCompounds

•StimulantsandHallucinogen’s (Cathinones,Piperazines)

•15identified: MonkeyDust presentlyamajorconcern

• MonkeyDust ishighlypotentcathinone–‘Zombiedrug’

•Whitepowder,snort,smokeorinject effectssimilartococaine andMDMA,popularasitscheaperandtriggerslongerhighs

•Life-changingimpact:aggression,violence,paranoia,psychosis,

•DesignerBenzodiazepines/Tranqualizers

•Changingcompoundfrom MDPV α-PV MDPHP

•Bromazolamandetizolamsoldonstreetasdiazepam(Valium) andalprazolam(Xanax)–avoidsdetection!!

•Abusedincombinationwithheroinandotheropioids

•Xylazine–potenttranquilizerusedinveterinary

BriefAlcoholUpdate-PEth

•Formedinthebloodwhenethanolpresent

•Asfordrugsandotheralcoholmarkers,interpretationisoversimplified

•Cut-offsorthresholdsappliedtoreportasfollows

•>220ng/ml=Chronicexcessivealcoholconsumptionover4weekperiod

•70to220ng/mg=“socialdrinking”

•<20ng/ml=abstinence.

•Highestleveldetectedby FTS4200ng/mlandit canbehigher

•However,thereissignificantvariabilitybetweenindividualswithregards:

•Howquickly PEthisformedinthebody

•HowquicklyPEthiscleared fromthebody – 4to14daystoreduce PEthlevelby50%

•Chronicconsistent drinkerwithPEthof1800ng/mlandaPEthhalf-lifeof10 days,followingabstentionfromalcohol:

•After 10days PEthlevel900ng/ml-

•After 20days PEthlevel450ng/m-

•After 30days PEthlevel225ng/mg-

SCRAMMonitor (SecureContinuousRemoteAlcoholMonitoring)

Howitworks:

•Braceletfittedtotheankle

•SCRAMworkslikeabreathalyser

•Provides24/7transdermalalcoholtesting

•Sensorautomaticallysamplesperspirationevery30minutes

SCRAMMonitor

SCRAM,usesacut-offof 0.02ng/mlblood alcoholconcentration,

• Thistypicallyrequiresaround2to3unitsof alcoholtoexceedthiscut-off

• Thiscanresultinindividualsconsumingupto around20to30unitsofalcoholeachweekto goundetected

• SCRAMonlyreliablydetectsconsumptionof5ormorestandardbeersordrinks

• 45.9%ofalloccasionsofdrinking1to3beerswentundetected

1)RoacheJD,KarnsTE,Hill-Kapturczak N,MullenJ,LiangY,LambRJ,Dougherty DM.ClinExpRes.2015

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