Presented by Artis Kakonge and Geraldine More O’Ferrall
Section 4 – Page 23
The new pilot scheme SIHIS programme and the implication on care proceedings and instructions of experts
Presented by Heather Popley
Section 5 – Page 33
Post Adoption Contact – A new approach?
Presented by Stefano Nuvoloni KC
Section 6 – Page 37
Evidence gathering in sex offence cases
Presented by Orla Grant
Section 7 – Page 45
Case law update
Presented by Rhianna Manani and Grace Gwynne
MembersList FamilyGroup
ToviewordownloadmembersCVspleasevisitNo5.com
LornaMeyerKC (Silk:2006 Call:1986)
StefanoNuvoloniKC (Silk:2017Call:1994)
RichardHadleyKC (Silk:2024Call:1997)
AnneSmallwood (1977)
StephanieBrown (1982)
JoannaChadwick (1988)
RichardAlomo (1990)
AshleyWynne (1990)
MicheleFriel (1991)
NandiniDutta (1993)
GeraldineMoreO’Ferrall (1993)
KristinaBrown (1998)
RebekahWilson (1998)
JamesSnelus (1999)
FemiOgunlende (2000)
ParamBains (2001)
SimonWorlock (2001)
WendyFrempong (2001)
VictoriaClifford (2002)
HeatherPopley (2003)
LouiseHiggins (2003)
AmiBartholomew (2003)
DavinaKrishnan (2004)
ChristopherMcWatters (2004)
JamesLeslie (2004)
KathrynTaylor (2005)
OrlaGrant (2005)
KirstyGallacher (2006)
ArtisKakonge (2006)
KatieLangdon (2007)
LauraO’Malley (2007)
LauraVickers (2007)
KatieMiller (2010)
NishaBambhra (2011)
RickySeal (2012)
BaldipSingh (2013)
ArrinNouri (2014)
LucyCash (2015)
HannahCourt (2015)
JenniferMoles (2015)
AnnaRohan (2015)
GraceWright (2016)
NaomiDean (2016)
FayeEdwards (2017)
EleanorBerney-Dale (2018) GraceGwynne (2017)
OliviaWhitworth (2018)
RhiannaManani (2018)
MarkJones (2019)
MicheleFriel (1991)
KatieLangdon (2007)
Tel:08452105555
Email:familyclerks@no5.com
Programme
6 CPD
Local Authority Seminar Thursday 3rd October 2024
No5 Barristers’ Chambers
10:00am – 10:30am Registration
10:30am – 10:40am Welcome
Lorna Meyer KC
10:40am – 11:25am DOLS under and over 16 years of age Artis Kakonge and Geraldine More O’Ferrall
11:25am – 12:20pm The new pilot scheme SIHIS programme and the implication on care proceedings and instructions of experts
Heather Popley
12:10pm – 12:55pm Post Adoption Contact – A new approach?
Stefano Nuvoloni KC
12:55pm – 2:15pm Lunch
2:15pm – 3:00pm Evidence gathering in sex offence cases
Orla Grant
3:00pm – 3:45pm Case law update
Rhianna Manani and Grace Gwynne
3:00pm – 4:00pm Q&A
4:00pm – 4:50pm Networking 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.
Artis Kakonge
Call: 2006
Artis has a broad family practice dealing with all aspects of relationship breakdown, child protection, domestic abuse and advising individuals and couples on how to start or grow their family through adoption and surrogacy. Artis also has an interest in the intersections between family law and education law, and addressing the challenges parents and carers obtaining appropriate provision for special educational needs.
Notable Cases
A Local Authority v M & Ors [2022] EWHC 81
Suffolk CC v RD and others [2020] EWHC 323 (Fam)
A (A Child) (Rev 1) [2020] EWCA Civ 731
Re TY Adoption (Jamaica) [2019] EWHC 2979 (Fam)
Re A (A Child: Female Genital Mutilation: Asylum) [2019] EWHC 2475 (Fam)
H (Step-Parent Adoption: Human Rights), Re [2023] EWHC 3186 (Fam)
Public Children
Artis spent a number of years in local government as a senior childcare advocate at Suffolk County Council, LB Barking & Dagenham, LB Islington, LB Brent and LGSS (covering Central Bedfordshire Council and Northamptonshire County Council). She represented children s services at all levels of court in complex cases including non-accidental injury, sexual abuse, county lines, and secure accommodation. She has provided specialist advice to Children with Disabilities teams on applications for DOLs/restrictions of liberty and appeared in cases involving young persons before the COP. She has also managed her own caseload of care proceedings providing her with an in-depth understanding of the PLO and the workings of children s services.
Private Law Children
Provides advice and representation to parents, stepparents, grandparents, and other concerned relatives seeking to make arrangements in the best interests of a child. She is also regularly instructed to represent rule 16.4 guardians including in complex cases involving alienating behaviours.
Her practice covers child arrangements, specific issue orders (name change, medical treatment, religion and schooling); private adoption and special guardianship applications; LGBTQIA family issues; fertility law and surrogacy; and domestic and international relocation.
Domestic Abuse
Provides representation in applications for domestic violence injunctions and occupation orders. She has provided training on Coercive and Controlling Behaviour and the Domestic Abuse Act 2021.
Finance
Artis is an experienced practitioner in financial remedies following divorce and regularly undertakes cases from modest to medium net worth cases involving companies and pensions. She also undertakes Schedule 1 applications. She is regularly instructed to represent clients with related children and finance matters.
International
Provides advice and representation to prospective adopters, local authorities/adoption agencies and guardians in international adoption cases including kafala adoptions and involving older children.
Provides representation in child abduction cases, applications to secure rights of access pursuant to Article 21 Hague Convention 1980 and wardship proceedings.
Accreditations
Coca-Cola Global Women s Leadership Scholar- Bayes Business School
Memberships
Lincoln s Inn CPBA
CoPPA FLBA Association of Lawyers for Children Resolution CPBA
Qualifications
Executive MBA, Bayes Business School, City University Bar Vocational Court, Inns of Court School of Law LLM, S.O.A.S., University of London MSc Criminal Justice Policy, L.S.E. LLB, Oxford Brookes University
Geraldine More O Ferrall
Family
All aspects of the law relating to children including complex public law cases involving non-accidental injury, factitious illness, sexual abuse, neglect, cases involving disputed medical and psychiatric evidence and adoption. Geraldine acts for parents, local authorities and Guardians.
Extensive experience in international cases involving child abduction and relocation, Hague Convention and non-Hague Convention countries and other international treaties. Geraldine has successfully pursued cases to the Court of Appeal and to the Supreme Court.
Notable Cases
Re H (2024)
Lead counsel representing a MGM in complex non-accidental injury case where MGM was a possible witness to one of the injuries to a 5 year old child.
A LA v KB & Anor [2022] EWFC 39
Represented LA in High Court case arising after child born to mother who had significant cognitive disabilities and could not consent to sexual relations. Linked COP proceedings. COP papers including trial bundle of over 8000 pages. Father was mother's stepfather. Sentenced to 12 years for rape of mother. Fact finding hearing required as family members sought to care for child and the court needed to determine whether any had knowledge of the circumstances of the conception, as alleged by father. Issues of financial abuse also required determination involving English and foreign financial records. Three separate trial bundles due to various disclosure restrictions to family and interveners.
Re F [2022]
Lead counsel representing mother in case where child had suffered a shaking /impact injury to the head. Mother only possible perpetrator, issue was causation. Paediatric neurosurgeon, paediatric radiologist and paediatric evidence obtained. One expert was discharged due to inconsistencies in reports. 10 day fact finding hearing. Negative pre-hearing SW assessment successfully challenged. Child ultimately returned home.
Re L (A Child:Step-parent adoption) [2021] EWCA Civ 801
Represented a Guardian in an appeal against a step-parent adoption order
Re AO 2018
Represented a mother in High Court case involving a toddler suffering from sickle cell disease. Medical reports indicated that without regular blood transfusions there was a 10% risk of stroke. The mother had refused transfusions on grounds of religious beliefs. Care proceedings issued. Preliminary ruling that transfusions were necessary. Mother ultimately agreed transfusions. At ineffective IRH the judge expressed a view that a care order seemed likely. The same judge was allocated to hear the adjourned IRH. The judge was requested by letter to recused themselves. No decision on letter but case was relisted on another day to another judge. A supervision order was made.
NIB v TS & ES [2016] EWHC 3213 (Fam)
Application to discharge wardship when child found to have been wrongfully removed from jurisdiction had lived in Egypt for five years
PH v AH [2016] EWHC 1131 (Fam)
Circumstances in which oral examination of a CAFCASS officer in a final Hague Convention hearing may be dispensed with
MD v CT [2014] EWHC 871 (Fam)
Acted for appellant mother against registration and enforcement of a French order granting sole residence to father. First case on consideration of the effect of Article 23(c), Brussels II a when French service rules complied with Annex II certificated granted but actual service had not been effected. Appeal allowed.
X v Y & Z Police Force, A, B and C [2013] 1 FLR 1277
Police joined as parties in child abduction case where client was an undercover police officer.
Re S (A Child) [2012] UKSC 10
Further consideration of Art 13(b) of the Hague Convention 1980 in case where client resisting return of a toddler to Australia and had a pre-existing anxiety condition and applicant had admitted domestic abuse.
Re W [2012] 2 FLR 133
First case where successive orders for committal were made against abducting father. Acted for mother whose three year old daughter was abducted to father's family in Pakistan. The daughter was finally returned to the Mother's care
Re D (Abduction: Child's Objections) [2012] 2 FLR 266 CA
Consideration by Court of Appeal of its discretion to return when child's objections defence is made out.
DT v LBT (Abduction: Domestic Abuse [2011] 1 FLR 1215
Junior Counsel in case where client raised Art 13(b) defences to Hague Convention return order. Unusually evidence was heard at length and court made findings in respect of serious and sustained domestic abuse including sexual violence. Consideration of ECJ decision of Neulinger in respect of Art 13(b) and compliance with Article 8 of the Human Rights Act 1998.
Re B (Care Proceedings: Withdrawal [2010] AllER (D) 190
Acted for Local Authority in case of child with severe physical disabilities. Parents would not agree recommended radical treatment plan resulting in treating hospital referring case to Local Authority. At final hearing hospital indicated it would not seek court authority for recommended treatment if parents did not agree. Care proceedings withdrawn.
Other Reported Cases include:
Camden LBC v Goldenberg [1997] 1FLR 556 Court of Appeal
Re E (Child Abduction: Non Convention Country) [1999] 2 FLR 642 CA
Re RC and BC (Child Abduction) (Brussels II Revised: Art 11(7) 2009 1 FLR 574
Memberships
Family Law Bar Association (FLBR) Middle Temple
Qualifications
LLB (Hons) University College, London
Inns of Court School of Law
Neutral Citation Number: [2023] EWHC 133 (Fam)
IN THE HIGH COURT OF JUSTICE FAMILY DIVISION
Case No: MA22C50418
Liverpool Civil and Family Justice Centre Vernon Street Liverpool L2 2BX
Date: 27/01/2023
Before: THE HONOURABLE MR JUSTICE MACDONALD
Between: Manchester City Council
(A Child acting by her Children’s Guardian)
Ms Emma Whelan (instructed by Manchester City Council) for the Applicant The First Respondent did not appear and was not represented The Second Respondent did not appear and was not represented Miss Martine Swinscoe (instructed by Alfred Newton Solicitors) for the Third Respondent
Hearing dates: 17 January 2023
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Neutral Citation Number: [2024] EWHC 1690 (Fam)
Case No: FD24C40148 IN THE HIGH COURT OF JUSTICE FAMILY DIVISION
Royal Courts of Justice Strand, London, WC2A 2LL
Date: 25/06/2024
Re J: Local Authority consent to Deprivation of Liberty
Before :
MRS JUSTICE LIEVEN
Ms Tanya Zabihi (instructed by Banes and North East Somerset Council) for the Applicant
Ms Sophie Smith-Holland (instructed by RWK Goodman Solicitors) for the First Respondent
Ms Sorrel Dixon (instructed by Lyons Davidson Solicitors) for the Second Respondent
Ms Libby Harris (instructed by Daniel Woodman Solicitors) for the Third Respondent
Hearing dates: 1 March 2024
Approved Judgment
This judgment was handed down remotely at 10.30am on 25 June 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Neutral Citation Number: [2023] EWHC 2494 (Fam)
IN THE HIGH COURT OF JUSTICE FAMILY DIVISION
Case No: FD23C40336
Royal Courts of Justice Strand, London, WC2A 2LL
Date: 9 October 2023
Before:
Paul Bowen KC (sitting as a Deputy Judge of the High Court)
Between:
A LOCAL AUTHORITY Applicant - andEBY (a child) (1) AY (mother) (2) BY (father) (3)Respondents
Re. EBY (A Child) (Deprivation of Liberty Order: Jurisdiction) (17-year-old)
Colin Morgan (instructed by a Local Authority) for the Applicant James Turner (instructed by Jackson West, Solicitors) for EBY Simon Miller (instructed by HLA Family Law) acting pro bono for the Second Respondent, BY (the father)
The mother (AY) attended with her communicator but was not represented The Guardian attended but was not represented
Hearing dates: 3 October, 9 October 2023 (remotely via Microsoft Teams)
APPROVED JUDGMENT
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Deprivation of Liberty Case-law update
Geraldine More O’Ferrall
No 5 Chambers
03 October 2024
1. Origin, scope and development of the DOLs jurisdiction relating to children
Leading cases:
P (by his litigation friend, the OS) v Cheshire West and Chester Council [2014] UKSC 19
Re C (A Child) [2016] EWHC 3473 (Fam)
X (A Child) and Y (A Child) [2016] EWHC 2271 (Fam)
AB (A Child: Deprivation of Liberty) [2015] EWHC 3125 (Fam)
AF (Children) 2018 EWHC 138 (Fam)
2. National DOLs court
3. Recent cases:
Re X (Child: Deprivation of Liberty: Lack of Placement) [2023] EWHC 3416 (Fam)14 year old girl
Re EBY (A Child) (Deprivation of Liberty order: Jurisdiction) (17 year old) [2023] EWHC 2494 (Fam)
Manchester City Council v P (Refusal of Restrictions on Mobile phone) (Rev 1) [2023] EWHC 133 (Fam) 16 year old girl
Re J: Local Authority consent to Deprivation of Liberty [2024] EWHC 1690 (Fam) (14 year old boy)
Case No: FD23C40559
Neutral Citation: [2023] EWHC 3416 (Fam)
IN
THE HIGH COURT OF JUSTICE FAMILY DIVISION
Before :
HHJ MORADIFAR
(SITTING AS A JUDGE OF THE HIGH COURT)
In the matter of;
Re X
(Child: Deprivation of Liberty: Lack of Placement)
Miss Asma Nizami (Instructed by Clyde & Co) on behalf of the applicant Hospital Trust
Mr Martin Downs (Instructed by Goodman Ray) on behalf of the parents
Miss Gemma Kelly (Instructed by Freemans solicitors…) on behalf of the child through her guardian
Miss Kerrie Croxford (Instructed by LA Legal Services) on behalf of the local authority
Hearing dates: 8 December 2023
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
ExpertInstruction–Ageneralupdateincludingthe SuspectedInflictedHeadInjuryService Pilot [SIHIS]
"Stefano is technically excellent, he works exceptionally hard and has a reassuring bed-side manner with clients." "Mr Nuvoloni KC is an extremely impressive advocate, he is strategically minded and thorough in his preparation. He is calm yet confident in his approach." "Stefano is helpful, approachable, and an extremely strong advocate."
Chambers UK 2024
Having been part of the ground-breaking team that secured the first CSE injunctions Stefano continues to advise local authorities and police forces nationally on the disruption of Child Sexual Exploitation. He drafted the working Protocol for use by Local Authorities and Police Authorities commended in BCC v SK [2016] EWHC 310.
His work with local authorities also encompasses the broad spectrum of policy review, Human Rights Act claims and Court of Protection work.
Stefano regularly acts in protracted and complicated private law proceedings covering the full range of disputes; residence and contact, relocation and child abduction. In cases of parental alienation Stefano has conducted numerous findings of fact hearings, successfully reinstating Child Arrangement Orders and re-establishing disrupted relationships.
Stefano is often instructed to advise clients in pre-proceedings, the emphasis being on how to create frameworks for agreement and avoid litigation.
Expertise
Family
His public law child care work covers the most serious of physical and fatal injuries, parental murder, exploitation, ritualised and organised
abuse and intricate medical evidence, including fabricated and induced illness.
Having been part of the ground-breaking team that secured the first CSE injunctions Stefano continues to advise local authorities and police forces nationally on the disruption of Child Sexual Exploitation. He drafted the working Protocol for use by Local Authorities and Police Authorities commended in BCC v SK [2016] EWHC 310.
Stefano recently secured the innovative use of s28 of Youth Justice and Criminal Evidence Act 1999 hearings within the course of public law children act proceedings.
His most recent appellate work includes the case of Y and E (1996 HAGUE CONVENTION: ARTICLE 11) [2023] EWCA Civ 817.
Notable Cases
Y and E (1996 HAGUE CONVENTION: ARTICLE 11) [2023] EWCA Civ 817
C (A Child)(Interim Separation) [2019]
M v DCC [2018] EWHC 3734 (Fam)
Wolverhampton City Council v JA and Ors [2017] EWFC 62
Birmingham City Council v SK [2016] EWHC 310 (Fam)
Birmingham City Council v Sarfraz Riaz and Others [2014] EWHC 4247 (Fam)
Re J (A Child) [2009] EWCA Civ 1210
Sandwell Metropolitan Borough Council v GC and HC and X and MMC [2008]
EWHC 2555 (Fam)
RE S (A child) [2008] EWCA Civ 1140
Re F (A child) [2008] EWCA Civ 218
Evans v Amicus [2003] EWHC 2161 (Fam)
Re S and Ors; Re W and Ors Sub nom Re W and B [2002] UKHL 10
Child Sexual Exploitation
Having been part of the ground-breaking team that secured the first CSE injunctions Stefano continues to advise local authorities and police forces nationally on the disruption of Child Sexual Exploitation. He drafted the working Protocol for use by Local Authorities and Police Authorities commended in BCC v SK [2016] EWHC 310.
Private Law Children
Stefano acts in highly charged private law proceedings covering the full range of disputes; residence and contact, relocation and child abduction. He is regularly instructed to act for clients in a pre-proceedings advisory role.
In cases of parental alienation Stefano has conducted numerous findings of fact hearings, successfully reinstating Child Arrangement Orders and re-establishing disrupted relationships.
Awards
Qualifications
LLB (Hons) Queen Mary College University of London MA (Medical Law and Ethics) Kings College University of London
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.
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)
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.
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]
CASE LAW UPDATE 2024: LA SEMINAR
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;
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.”
