Private Children Law Seminar

PrivateChildren FamilyLaw Seminar

Thursday 14th March 2024

Malmaison, 1 Wharfside Street, Birmingham, B1 1RD

Private Children Family Law Seminar

14th March 2024

Malmaison, Birmingham

Contents

Section 1

Programme – Page 1

Section 2 – Page 3

Welcome

Presented by Richard Hadley

Section 3 – Page 8

Getting it right the first time and sorting interim contact at FDRA

Presented by Arrin Nouri

Section 4 – Page 19

Words hurt: Finding of fact hearings where non – physical abuse is alleged. Presented by Ricky Seal

Section 5 – Page 35

Section 7 reports: An independent social worker’s perspective

Presented by Carolyn Adams

Section 6 – Page 37

Our Family Wizard

Presented by Katie Deans

Section 7 – Page 49

Why bother? Costs in private children law proceedings

Presented by Hannah Court

Section 8 – Page 55

Pleasing your judge at finding of fact hearings and final hearings

Presented by HHJ Helen Arthur

Section 9 – Page 64

When it all goes wrong: Set asides and appeals

Presented by Heather Popley and Orla Grant

Section 10 – Page 75

When it all goes wrong II: Committals

Presented by Jennifer Moles

Section 11 – Page 83

Back, back, back again: Dealing with repeat applications

Presented by Mark Jones

Members List – Page 89

Private Children Family Law Seminar

14th March 2024

Malmaison, Birmingham

9:00 – 9:30 Registration

9:30 – 9:45 Welcome

Richard Hadley, No5 Barristers’ Chambers

9.45-– 10:15

10:15 – 10:50

10:50 – 11:25

Getting it right first time and sorting interim contact at FHDRA

Arrin Nouri, No5 Barristers’ Chambers

Words hurt: Finding of fact hearings where non-physical abuse is alleged

Ricky Seal, No5 Barristers’ Chambers

Section 7 reports: An independent social worker’s perspective

Carolyn Adams, Independent Social Worker

11:25 – 11:35

11:35 – 11:50

11:50 – 12:25

12:25 – 13:00

Our Family Wizard

Katie Deans

Refreshment Break

Why bother? Costs in private children law proceedings

Hannah Court, No5 Barristers’ Chambers

Pleasing your judge at finding of fact hearings and final hearings

HHJ Helen Arthur

13:00 – 14:00

14:00 – 14:45

14:45 – 15:15

15:15 – 15:35

Lunch

When it all goes wrong: Set asides and appeals

Heather Popley and Orla Grant, No5 Barristers’ Chambers

When it all goes wrong II: Committals

Jennifer Moles, No5 Barristers’ Chambers

Refreshment Break

15:35 – 16:00

Back, back, back again: Dealing with repeat applications

Mark Jones, No5 Barristers’ Chambers

16:00 – 16:30 Q&A

Richard Hadley

Family

Year of Call: 1997

Email Clerks: family@no5.com

Richard now specialises exclusively in matters relating to children, where he regularly appears in all levels of the Family Division. His case load consists of the most complex and sensitive care proceedings where he represents many local authorities throughout the country in addition to his representation of parents and children. He is particularly skilled at unravelling complicated medical evidence and is highly sought after for lengthy High Court cases by parents, guardians and local authorities alike. He is regularly instructed in high profle cases involving the most serious of injuries, sexual abuse and fabricated or induced illness. He is well known for cases involving issues relating to immigration and the placement of children abroad.

Areas of Practice

Complex care proceedings

Allegations of Physical and sexual abuse

Non- accidental injury and Non- accidental head injury

Fabricated and induced illness

Cases involving the death of a child

Cases involving medical complexity and/or controversy

Lengthy fact-fnding hearings

Complex adoption proceedings including those with an international element Cases involving child abduction (Hague convention and Brussels II Revised)

Recommendations

“Richard is an outstanding junior who has been instructed on many occasions in some extremely complex matters. Richard offers an excellent service to his clients.” “Richard has a measured and engaging advocacy style.” “Richard is a superb advocate. He has the ability to simplify matters with ease, and a sharp mind, and his tactical awareness is second to none.”

Chambers UK 2023

“He is particularly skilled in complex medical and sexual abuse cases.”

Chambers UK 2022

“He has an assured and confdent style. His cross-examination is erudite and purposeful. His case preparation is fawless and he is always willing to help and advise.” “He is the best junior barrister on the West Midlands Circuit. So calm, assured and well prepared, and you know that the other parties respect what he has to say. He is a master tactician, always thinking two or three moves ahead of his opponents.”

Chambers UK 2021

Notable Cases

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

Wolverhampton City Council v JA and Ors

[2017]

EWFC 62

RO v A local authority (1),N (2), TM (3),F (4) [2014]

EWHC 97 (Fam)

A City Council v DC [2013] EWHC 8 (Fam) [2013]

1 W.L.R. 3009, Re X, Y and Z (children)

[2010] EWHC B12 (Fam) [2011 1 FLR 1045

LAB v KB (Abduction: Brussels II Revised)

[2009] EWHC 2243 (Fam) [2010] 2 FLR 1664

Re T (Abuse: Standard of Proof)

[2004] EWCA Civ 558 [2004] 2 FLR 838

Arrin Nouri

Family

Year of Call: 2014

Email Clerks: family@no5.com

Introduction

Arrin is a barrister specialising in family law, with a particular focus on Children Act proceedings. She has appeared at all levels up to and including the High Court. She has been led by, and appeared against, King’s Counsel. She is ranked as a leading lawyer in the Legal 500.

Arrin has significant experience in Private Law Children cases and frequently deals with Child Arrangements, Specific Issue, Prohibited Steps and Enforcement applications. She is regularly instructed in complex disputes involving allegations of domestic abuse, harm to children, parental alienation and implacable hostility. She is well equipped to handle cases which involve Rule 16.4 Guardian appointments and detailed expert evidence.

Arrin’s experience also covers the full range of Public Law Children cases including Care, Supervision, Placement and Special Guardianship applications. She represents local authorities, parents, children and interveners at all stages of proceedings from emergency hearings to final hearings. Her caseload has featured issues of neglectful parenting, physical, emotional and sexual abuse, substance misuse, mental health difficulties and radicalisation concerns.

Another aspect of Arrin’s practice includes representing applicants and respondents to NonMolestation and Occupation Order applications under the Family Law Act 1996.

Arrin is a resilient advocate who strives to achieve the best possible outcomes for those she represents. She has an approachable manner and will thoroughly explain matters to clients and provide realistic and pragmatic advice. Arrin is known for her forensic approach and attention to detail. In the courtroom she is a persuasive advocate who delivers arguments clearly and effectively.

Client Testimonials

“Her legal knowledge and ability to deal with complex cases is outstanding. She is a hardworking, robust advocate and her attention to detail is excellent. Highly recommended for private Children Act proceedings. She exceeds expectations and her skill compares with more senior barristers. She is approachable and receives very positive feedback from clients.”

“Arrin has exceptional attention to detail and is extremely diligent when preparing cases. She is a resilient advocate and is excellent at representing clients with learning disabilities.”

“Arrin took over the brief on a private law children matter at the last minute. Despite this she was well prepared and confident, putting the client instantly at ease. She had a great manner in court and was particularly adept at dealing with a difficult litigant in person. The client was very impressed.”

“Arrin’s dedication and tenacity in complex children’s cases is exceptional. She goes above and beyond to deliver an outstanding service to both instructing solicitor and client, and has an incredible capacity to absorb detail to provide considered and careful advice on legal, practical and strategic issues. I would thoroughly recommend her.”

Recommendations

“Arrin is a very thorough barrister who is always very well-prepared. She is calm and excellent with clients. Her advocacy is excellent.”

Legal 500 2024 – Leading Juniors: Family (Children and Domestic Violence) Ranked: Tier 3

“Arrin is incredibly conscientious and hard working. She is thorough and incredibly analytical in her preparation and approach to cases.”

Legal 500 2023 – Leading Juniors: Child Law (Public and Private) Ranked: Tier 3

Published

Arrin was led by King’s Counsel in the High Court in a complex fact-finding hearing lasting 7 days before Knowles J. The case concerned the risks of radicalisation from a mother to her child, in circumstances where the mother had travelled to Syria and lived in territory controlled by the Islamic State before returning to the UK.

Awards

Leonard Woodley Scholarship, Inner Temple, 2016

BPTC Exhibition Award Scholarship, Inner Temple, 2013

Lady Barber Prize for Mooting, University of Birmaingham, 2013

Lady Barber Prize for Mooting, University of Birmingham, 2012

Memberships

Inner Temple

Midland Circuit

West Midlands Family Law Bar Association

Qualifications

BPTC, University of Law Birmingham, 2014

LLB, University of Birmingham, 2013

The FHDRA: Getting it right first time and sorting interim contact

Presented by Arrin Nouri 14th March 2024, Malmaison, Birmingham

The FHDRA

 Common misconception –the early stages of proceedings are the more straightforward

 Orders made at the FHDRA set the tone for the rest of proceedings

 The Midlands Private Law Strategy places considerable emphasis upon the FHDRA

The FHDRA

 The Midlands Private Law Strategy –“The expectation is that the majority of cases will conclude at this hearing”

 Regrettably (although perhaps not for counsel!) this will not always be possible

Three key issues to focus upon (if the matter cannot be resolved at the FHDRA):

1)Allocation

2)Case management

3)Interim contact

Allocation

 Cases are allocated at an early stage of proceedings on the basis of the information provided in the application

 The court has an ongoing duty to keep allocation decisions under review

 The FHDRA is generally the first opportunity for the court to review allocation with input from parties

Allocation

 Raise respectfully!

 Attach a copy of the Guidance1 and Schedule2 to your position statement / note

1.President’s Guidance on Allocation and Gatekeeping for Proceedingsunder Part II of the Children Act 1989 (Private Law)

2.Schedule to the Allocation and Gatekeeping Guidance

Case management

 Generally 3 destinations:

Case management



 Be proportionate –do not throw the kitchen sink at this!

Interim contact

 Follow the rules:

- PD12J

- Children Act 1989

Interim contact

“Where the results of Cafcass or CAFCASS Cymru safeguarding checks are not available at the FHDRA, and no other reliable safeguarding information is available, the court must adjourn the FHDRA until the results of safeguarding checks are available. The court must not generally make an interim child arrangements order, or orders for contact, in the absence of safeguarding information, unless it is to protect the safety of the child, and/or safeguard the child from harm (see further paragraphs 25-27 below).”

Interim contact

“Where the court gives directions for a fact-finding hearing, or where disputed allegations of domestic abuse are otherwise undetermined, the court should not make an interim child arrangements order unless it is satisfied that it is in the interests of the child to do so and that the order would not expose the child or the other parent to an unmanageable risk of harm…”

Interim contact

“In deciding any interim child arrangements question the court should–

(a)take into account the matters set out in section 1(3) of the Children Act 989 or section 1(4) of the Adoption and Children Act 2002 ('the welfare check-list'), as appropriate; and

(b)give particular consideration to the likely effect on the child, and on the care given to the childby the parent who has made the allegation of domestic abuse, of any contact and any risk of harm, whether physical, emotional or psychological, which the child and that parent is likely to suffer as a consequence ofmaking or declining to makean order.”

Interim contact

“Where the court is considering whether to make an order for interim contact, it should in addition consider –(a)thearrangementsrequiredtoensure,asfaraspossible,thatanyriskofharmto thechildandtheparentwhoisatanytimecaringforthechildisminimisedandthat the safetyofthechildandthepartiesissecured;andinparticular: i.whetherthecontactshouldbesupervisedorsupported,andifso,whereandbywhom; and

ii.the availability of appropriate facilities for that purpose;

(b) if direct contact is not appropriate, whether it is in the best interests of the child to make an order for indirect contact; and

(c) whether contact will be beneficial for the child.”

Interim contact

 A v C [2018] All ER (D) 88 (Dec)

Interim contact

 General welfare principles:

- Child’s welfare is court’s paramount consideration: Section 1(1)

- Presumption, unless contrary is shown, that involvement of each parent in child’s life will further their welfare: Section 1(2)

- Welfare check-list factors: Section 1(3)

Interim contact

 If representing a party who is pursuing interim contact…

- Child has a right to a relationship with both parents solong as thiscan be safelymanaged

Court can make interim order based on evidence before it and having regard to welfare checklist

- The effects of stopping contact are significant and can be harmful - Interim contact can assist/inform further assessments

- Disparity between contact arrangements for children in private and publiclaw proceedings

Interim contact

 If representing a party who is on the receiving end of an interim contact application…

- Court should proceed with caution - Interim stage –evidence is incomplete - Even if an arrangement can be made that protects the physical safety of the child and parent with whom theylive,thismaynotaddress issues of emotional/psychological harm - A re-introduction following a break in contact may need to be managed carefully

- Further assessments may be required

Interim contact

 Re D (Contact Interim Order) [1995] 1 FLR 495

- Wall J commented upon the approach to the making of interim contact orders pending Final Hearing at page 505: -”… apart from cases in which previously satisfactory contact has been arbitrarily terminated bythe residential parent, I find it very difficult to envisage circumstances in which an interim order for contact could properly be made in a case in which the principle of contact is genuinely in dispute and where there are substantial factual issues relating to the child unresolved, without the court either: (1) hearing oral evidence, and forming an assessment of the parties and the likely effect on the child of contact; and/or (2) having the advice of a court welfare officer orother expert as to the likely effect of contact on the child.In everycase where contact is disputed the court must remember that it is dealing with a child who is in the middle of a parental conflict, and whose loyalties are likelyto be torn.The court maywell be dealing with a child who has not seen the other parent for a long time.Contact in these circumstances can be very stressful for the child: hence the need to approach it with care."

Interim contact

 Safeguarding Letter:

- Advice to the court –not binding/determinative

- Limitations to a telephone interview

- Can lack detailed analysis or evidence of the balancing exercise to be undertaken

Interim contact

 The Midlands Private Law Strategy:

- Para 7c and Appendix E: “In the event that it is recommended that there is no contact between the child and a parent, then the safeguarding letter shall setout clearlythe analysisin relation to that considering the welfare consequences for the children and family if no contact takes place.”

- Para 9: “We will work with Cafcass to develop and pilot a model for obtaining older children’s wishes and feelings prior to the FHDRA so the child’s voice can be placed at the centre of thathearing.”

- Paras 11 and 13: CAFCASS officer and allocated social worker (if there is one) tobe in attendance at the FHDRA.

Interim contact

 Often being considered by a busy court –the court will have limited time to consider this issue meaningfully

 Be pro-active –make enquiries and go to court (or send counsel) armed with information and proposals

- Contact centre locations / availability / costs

- Confirmation of family members’ willingness and availability

Interim contact

 The Midlands Private Law Strategy:

- Para 6 and Appendix F: ”We will direct that a simplified and revitalised parenting plan is filed in every case by both parties before the FHDRA.The parties will be directed to specifically address how (if at all) safe contact can be achieved, including interim contact, and identifyanyfamilymembers who could potentially assist.”

Interim contact

 Explore every option for spending time together –unrestricted, supported, supervised, telephone/video calls, letters/cards and other indirect forms

 Think outside the box and be creative

 If format of contact cannot be improved, explore extension to frequency or duration

The FHDRA: Getting it right first time and sorting interim contact

Presented by Arrin Nouri ano@no5.com

Ricky Seal

Family

Year of Call: 2012

Email Clerks: family@no5.com

Ricky practises exclusively in family law. He is known for his expertise in Children Act proceedings. He appears at all levels of the Family Court and in the Family Division of the High Court.

Ricky acts in both private law and public law proceedings. He has experience of cases involving

•Parental alienation and implacable hostility;

•Domestic and sexual abuse;

•Inficted injuries to children;

•Jurisdictional disputes; and

•Public interest immunity.

Private Law Children

Ricky is frequently instructed in private law children disputes by parents, family members and children.

Ricky’s private law cases range from those with no safeguarding issues to those involving allegations of signifcant harm. These cases include applications for child arrangements orders, specifc issue orders, prohibited steps orders, enforcement orders and special guardianship orders.

Ricky’s cases have also included disputes around:

-Living arrangements;

-Contact;

-Schooling;

-Internal relocation;

-Temporary removal from the United Kingdom (to both Hague and non-Hague convention countries); and

-Citizenship.

Public Law Children

Ricky is regularly instructed in care proceedings and acts at all stages of proceedings. He represents local authorities, parents, interveners, and children.

Ricky has been instructed in cases involving the inherent jurisdiction, wardship and deprivation of liberty.

Ricky also has experience of contested Adoption Act proceedings both at the permission stage and where parents have been given permission to oppose an adoption order.

Other areas of family law

Ricky also accepts instructions in relation to applications for non-molestation orders and female genital mutilation protection orders.

Other experience

Ricky sits on No5’s pupillage committee and on YRes West Midlands committee.

Previous experience

Prior to joining No5, Ricky was a paralegal and junior fee earner at Hornby and Levy Solicitors in Brixton, South London

specialising in all areas of family law.

Published cases

Re P (Sexual Abuse: Finding of Fact Hearing) [2019] EWFC 27: Ricky represented one of the children (by their guardian) in this 17-week fnding of fact hearing into allegations of serial intra-familial and inter-familial child sexual abuse.

Re A & B (Children) (Contested Adoption) [2022] EWFC 17: Ricky represented the local authority in a contested application for an adoption order where the parents had already been given permission to oppose the making of an adoption order.

Other notable cases

Re NQ: Ricky represented a mother at a three day fnal hearing who was seeking to vary an existing child arrangements order and to defend an application for an enforcement order.

Re RU: Ricky represented a father in linked private law proceedings and public law proceedings (where the father was an intervener). This included a ten-day fnding of fact hearing where the father was alleged to be a potential perpetrator of an inficted injury to a child.

Re LB: Ricky represented the child (by their guardian) in complex and lengthy proceedings involving allegations of signifcant emotional harm and parental alienation. Ricky’s involvement covered private law proceedings, appeal proceedings and public law proceedings. He represented the child at over nine hearings including a four-day private law fnal hearing, an appeal hearing and a four-day interim care order hearing.

Re OS: Ricky represented the child (by their guardian) in public law proceedings and proceedings under the inherent jurisdiction. The case concerned the steps to be taken where a child subject to an interim care order had been abducted abroad.

Re VX: Ricky represented two children (by their guardian) in an application for female genital mutilation protection orders. He represented the children at six hearings including a Re W hearing, a six-day fnding of fact hearing and a three-day fnal hearing.

Re RP: Ricky represented the local authority in a six day fnding of fact hearing into allegations of serious physical abuse and beatings by the parents.

Memberships

Inner Temple Midland Circuit Family Law Bar Association Resolution Association of Lawyers for Children Qualifcations

Bar Professional Training Course (Outstanding; College of Law)

Associateship of King’s College London

LLB in Law with European Legal Studies (First Class Honours; King’s College London)

Words hurt: Finding of fact hearings where non-physical abuse is alleged

Presented by Ricky Seal 14th March 2024, Malmaison, Birmingham

The legacy of Re H-N

 [2021] EWCA Civ448; [2022] 1 All ER 475

 Not again!

 (Still) essential reading





A local strategy for local people

 The Midlands Private Law Strategy (February 2024)

 Ignore at your peril?

 Or more unrealistic expectations?

Proceedings (with FFH) to conclude in 40 weeks

Day One: Issue Week Four: Safeguarding letter Week 6: FHDRA Week 16: DRA

Week 20: FFH Week 32: Section 7 report Week 35: DRA Week 40: Final hearing

What is non-physical abuse?

 Domestic Abuse Act 2021 s 1

“… controlling or coercive behaviour; economic abuse; psychological, emotional or other abuse …”

- “It does not matter whether the behaviour consists of a single incident or a course of conduct.”

Practice Direction 12J definitions

 Incorporates the Domestic Abuse Act 2021

 ‘coercive behaviour’ means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim;

 ‘controlling behaviour’ means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour;

Home Office Guidance

 Home Office’s Controlling or Coercive Behaviour Statutory Guidance Framework (5 April 2023)

 Section 6: Post-separation abuse, related harms, offences and other forms of domestic abuse

What are we not talking about?

“It is equally important to be clear that not all directive, assertive, stubborn or selfish behaviour, will be ‘abuse’ in the context of proceedings concerning the welfare of a child; much will turn on the intention of the perpetrator of the alleged abuse and on the harmful impact of the behaviour.” [Re H-N at [32]]

“Not every act of unkindness, rudeness or misconduct will be such as to justify fact finding.” [A Father v A Mother [2023] EWFC 265]

“The Family Court is not there to adjudicate on why the parents' relationship failed, or past grievances. A fact find is only justified if it is necessary for determining the welfare outcomes for the children.” [TRC v NS [2024] EWHC 80 (Fam)]

Why it matters?

“"The blow of a whip raises awelt, but a blow of the tongue crushes the bones.” [The Book of Sirach]

“Sticks and stones may break my bones Oh but your words they really hurt me” [Pete Doherty]

Why it matters?

“The circumstances encompassed by the definition of ‘domestic abuse’ in PD12J fully recognise that coercive and/or controlling behaviour by one party may cause serious emotional and psychological harm to the other members of the family unit, whether or not there has been any actual episode of violence or sexual abuse” [Re H-N at 31]

Why it matters? Impact on the child

The child can be harmed in any one or a combination of ways for example where the abusive behaviour:

i)Is directed against, or witnessed by, the child;

ii)Causes the victim of the abuse to be so frightened of provoking an outburst or reaction from the perpetrator that she/he is unable to give priority to the needs of her/his child;

iii)Creates an atmosphere of fear and anxiety in the home which is inimical to the welfare of the child;

iv)Risks inculcating, particularly in boys, a set of values which involve treating women as being inferior to men.[Re H-N at [31]]

Getting the best outcome for clients

 Think tactically

 But be realistic

Cafcass’ role

“Schedule 2 safeguarding letters prepared by Cafcass must include clear and focused analysis of the following matters:

If a fact-finding hearing is recommended:

 Identify what factual disputes need to be determined and why they are considered relevant to welfare decision-making; …

 Address whether it is necessary and proportionate for the factual disputes to be determined at a separate fact-finding hearing or can be considered as part ofa composite final hearing to avoid delay.” [Midlands Strategy]

Importance of the FHDRA

 One hearing only!

 Use C1As to your advantage

 Position statements are not optional!

- Midlands Strategy standard orders on issue: Para 13

Peter Myers

Unpredictability of findings of fact hearings

 Whether there will be a FFH is less predictable than ever

 Pendulum swinging away from (separate) FFH?

Necessity

 With regards to the welfare of the child

 PD12J paras 5, 16 and 17 and Re H-N at [8]

 The Midlands Strategy (again!) - “It is reiterated that only allegations which are NECESSARY and PROPORTIONATEfor the Court to resolve inorder to make welfare decisions for the childshould be the subject of a fact-finding hearing.”

A move towards more composite hearings?

 What is a composite hearing?

 Define your facts in dispute early

The Week 16 DRA

This hearing will consider:

i)Whether a finding of fact hearing is necessary and proportionate;

ii)What allegations are to be the subject of a fact-find;

iii)Whether any further evidence is required;

iv)Whether any participation directions are required to ensure a fair and just hearing;

v)The court will actively case manage the factual disputes and focus on narrowing issues to those which are necessary and proportionate for welfare decisionmaking.

To Scott Schedule or not to Scott Schedule?

 Theory vs reality

 Scott Schedules vs lists vs clusters

 Primary vs secondary allegations

 Witness statements?

Reality

Although I accept that the Court of Appeal cast some doubts on the efficacy of a Scott Schedule in the case ofH-N(above), I take the view that there is really no alternative if a court is to deal fairly with multiple allegations in a fact finding case.” (Moor J in AB v CD)

Unfortunately, this case was case managed in its early stages without an appreciation of the difficulties Scott Schedules can present. This issue was discussed during the hearing, and I made it clear that I would not be confining myself to the specific allegations, and that I would be looking more broadly at patterns of behaviour.” [Re A and B (fact finding hearing –sexual abuse: no QLR available) (Recorder O'Hagan)]

“Allegation One is denied”

 What are you really saying?

 What are you seeking?

Witness statements

 “The affidavit/statement must, if practicable, be in the maker’s own words”

 “The child disclosed”

 Link the abuse to the effect on the child

 List your additional witnesses / evidence

Size matters…

 PD27A:

 AB v CD - M’s 26 pages (and would have been longer with the correct font / spacing) - F’s 60 pages - “I made it clear to both advocates at the Pre-Trial Review …that I had no intention whatsoever of reading either of these statements.”

GM and PM v EB and TM [2024] EWHC 288 (Fam)

 Witness statements vs position statements

 The dangers of not setting out allegations properly in advance Police disclosure

 New protocol: Disclosure of information between family and criminal agencies and jurisdictions: 2024 protocol

 12 page application (Annex 1)

 New police disclosure order (Annex 5)

Special measures and ground rules

 Assumption in cases of domestic abuse [r 3A.2A]

 ”Ground rules hearing" prior to any hearing at which evidence is to be heard[PD3AA para 5.2] –NOT optional

 Risk of successful appeal if ignored

TRC v NS [2024] EWHC 80 (Fam)

 A preview of the Midlands Strategy?

 Re-visiting the need for a FFH

 (Agreed) narratives

You can only do so much…

And appeal if you need to!

Words hurt: Finding of fact hearings where non-physical abuse is alleged

Presented by Ricky Seal rs@no5.com

APPENDIX G

THE MIDLANDS PRIVATE LAW OUTLINE

1. The purpose of the Private Law Outline is to provide a clear timetable for the child in private law proceedings. It should be varied only on specific directions by the Judge.

2. Every case should be resolved within 25 weeks, or 40 weeks if a finding of fact is ordered.1

3. All participants within the system are expected to comply with this timetable.

4. An extension to the child’s timetable will only be permitted by the judge if necessary to dispose justly of the proceedings. Reasons for any extensions to the child’s timetable will need to be recorded on the face of the order.

THE CHILD’S TIMETABLE

Day 1:

5. Proceedings are issued and within 24 hours referred to a gatekeeping Legal Adviser or Judge.

6. Compliance with the requirement to attend a Mediation Information and Assessment Meeting (MIAM) is checked. If the gatekeeper is not satisfied an exemption is properly claimed or attendance at a MIAM is nevertheless deemed appropriate, the application will be stayed for 3 weeks and directions given for MIAM attendance to be satisfied.

7. If MIAM attendance is not required or deemed inappropriate, gatekeeping directions will be issued up to the First Hearing Dispute Resolution Appointment (FHDRA)

8. If the gatekeeping judge is satisfied the grounds for an urgent hearing are met, the matter will be listed. Following resolution of any urgent issues, consideration must be given to whether MIAM attendance is now required and the matter stayed in accordance with paragraph 6.

Week 4:

9. Cafcass Schedule 2 safeguarding letter filed.

Week 5:

1 This timetable assumes a 12 week filing date for s 7 reports. It is noted some areas across the Midlands currently stand at 14 weeks.

10. Local authorities are to comply with any directions for disclosure and filing of a report.

11. Parties to file position statements. Bundles to be prepared and filed.

12. Stayed applications only. Any applications stayed for MIAM attendance will be referred back to the gatekeeper for a paper review. If the applicant fails to attend the MIAM and file the relevant evidence as directed, the application may be struck out at this review.

Week 6:

13. The First Hearing Dispute Resolution Appointment will be listed. The expectation is that the majority of cases will conclude at this hearing.

If the matter is not resolved:

14. The FHDRA must address the following case management matters:

a) Listing of the DRA. Unless there are specific reasons to do so on the facts of a particular case, the court will not list a final hearing before an effective DRA has taken place.

b) What further evidence is required from professionals or third party agencies: police, health, education and the Local Authority.

c) Whether scientific testing for substance misuse is required.

d) Whether a finding of fact hearing is necessary and proportionate.

e) Whether factual disputes can be fairly and justly determined within a composite hearing.

f) Whether a s 7 welfare report is required from Cafcass or the Local Authority.

g) Whether the appointment of a Guardian should be considered within the agreed Cafcass protocol.

h) What further evidence is required from the parties or lay witnesses.

i) Arrangements for interim contact.

j) What support or services may be required to assist the family, including any contact interventions.

k) The date and time of the next hearing and any participation directions required for vulnerable parties or witnesses.

15. The following case management principles must be applied:

j) All directions must be realistic and achievable, considering available resources. The same robust principles of case management employed in the public law sphere will be applied to private law disputes.

k) If the court permits or refuses a separate fact-finding hearing, the reasons must be recorded on the face of the order, giving careful consideration to PD12J. It is reiterated that only allegations which are NECESSARY and PROPORTIONATE for the Court to resolve in order to make welfare decisions for the child should be the subject of a fact-finding hearing. The role

of the court in Children Act 1989 proceedings is not to resolve disputed allegations between the adults if they are not relevant to achieving safe arrangements for the child.

l) Further directions hearings or review hearings are to be avoided. Additional hearings outside the Private Law PLO will require specific justification on the face of the order.

m) The court must always consider determining factual disputes as part of a composite welfare hearing to avoid delay and ensure a more holistic approach to decision-making.

n) Decisions regarding interim contact arrangements must be expressly addressed within the case management order.

o) If a party fails to comply with a court direction, the Court will consider (i) dismissing their application; (ii) preventing them from putting a positive case to the court; (iii) making a costs order against them.

Week 10:

16. Last date for any third-party disclosure (including police) or professional reports directed at the FHDRA to be sent to the Court. Any testing for substance misuse to be completed.

Week 18:

17. Latest date at which the section 7 welfare report to be filed by Cafcass or the Local Authority.

Week 19:

18. Parties to file position statements in response to the s 7 report. Bundles to be prepared and filed with the Court.

Week 20:

19. The Dispute Resolution Appointment (DRA) is to be listed. Proceedings are expected to conclude at DRA following the filing of a s 7 report. The following case management principles will apply:

1. To assist the parties to resolve matters, the judge will give a clear indication as to the likely outcome of the proceedings based on the written evidence filed.

2. The court may determine that any remaining matters in dispute can be fairly and justly resolved at the DRA by hearing short submissions or evidence from the parties and giving a decision.

20. Only if a separate finding of fact is being considered following the FHDRA:

Week 12:

• A schedule of the findings sought and any witness statements in support to be sent to the Court and all other parties

Week 14:

• Any witness statements in response to a schedule of findings to be sent to the Court and all other parties.

Week 16:

• Despite Resolution Appointment to be listed.

This hearing will consider:

i) Whether a finding of fact hearing is necessary and proportionate;

ii) What allegations are to be the subject of a fact-find;

iii) Whether any further evidence is required;

iv) Whether any participation directions are required to ensure a fair and just hearing;

v) The court will actively case manage the factual disputes and focus on narrowing issues to those which are necessary and proportionate for welfare decision-making.

Week 20:

• Any separate Finding of Fact hearing should be listed.

Week 32:

• Latest date at which any s 7 welfare report is to be filed.

Week 34:

• Parties to file position statements in response to the s 7 report. Bundles to be prepared and filed with the Court.

Week 35:

• The Dispute Resolution Appointment (DRA) is to be listed. See above for the principles to be applied.

21. The final hearing should be listed where court lists allow within 5 weeks of the Dispute Resolution Appointment.

22. The following case management matters must be addressed at the DRA in preparation for the final hearing:

a) Any final witness statements and/or parenting plans from the parties in response to the section 7 report to be sent to the court and the other parties.

b) A witness template prepared setting out who will give evidence and the time permitted for each witness to be cross-examined.

c) Any participation directions required for vulnerable parties or witnesses.

23. In considering whether to set a matter down for a final contested hearing and, if so, what format that hearing will take, the following case management principles apply:

• It is for the court to control the evidence it requires to resolve the matter fairly;

• It is possible for the court to dismiss the proceedings at an early directions hearing;

• The court will not necessarily list a full contested hearing with parties permitted to call oral evidence and cross-examine any witnesses they may choose;

• Cross-examination of any witnesses may be restricted, including of parents;

• At all times the court will be guided by the overriding objective in exercising its case management powers.

Carolyn Adams

Overview

Carolyn Adams has worked as an independent social worker since the late eighties and predominantly undertakes independent assessments for the Court in both private and public family law matters, ensuring that the child remains at the heart of this process.

Biography

Carolyn Adams has worked as an independent social worker since the late eighties, and also acted as a self-employed Guardian ad Litem for some seventeen years during this time, and prior to the introduction of CAFCASS. Prior to this she worked as a social worker in both voluntary and statutory agencies, managed children’s homes, held senior and management positions in Local Authority, and chaired adoption and fostering panels. She draws on this mixed background in her current practice which mostly sees her undertaking independent assessments for the Court in both private and public family law matters.

Carolyn is particularly passionate about ensuring that humanity and respect are upheld throughout the assessment process. Not only does this lead to better rapport which aids the assessment process, but it ensures that the actual humans, and especially children, who are at the centre of difficult, complicated, and often painful legal disputes are guided through this process with dignity, regardless of the outcome.

Resource Kit for Professionals

Your work with families is essential, and OurFamilyWizard is here to support you

Our web and mobile-based platform are designed to make your job run smoothly. On the parent side, it helps prevent conflict and increase co-parenting confidence—so that children can grow up in healthier, happier homes.

What’s Inside

shield-heart

Communication tools for co-parents

Access for family law professionals rectangle-pro

people-line

Inclusive pricing forms

Draft order template file-spreadsheet

OurFamilyWizard Features & Tools for Parents

Co parenting is complex, but it doesn t need to be chaotic. OurFamilyWizard s tools help co parents stay organised, communicate effectively, and prevent conflict.

Each tool in the app has a built in framework for concrete documentation. From first viewed timestamps to on action notifications, OurFamilyWizard provides peace of mind for families and absolute clarity for family law professionals.

main tools for co-parents

Messaging

Documented communication that cannot be edited or deleted.

Expenses

Expense recording—categorised requests, reimbursements, & receipt files.

Journal Moments

Photos, memories, and notes. Easily shared or kept private.

ToneMeter (Optional add-on)

A tool for identifying language that could escalate conflict, to encourage productive communication.

Calendar

A shared parenting time schedule that includes events, holidays, and schedule change requests.

Info Bank

Organised sections for medical info, school files, clothing sizes, & more.

GPS Check-Ins

Verified arrivals at handovers and other locations.

Professional Accounts for Family Law Professionals

By consolidating co-parents’ communication and coordination, OurFamilyWizard gives family law professionals a simpler and more reliable way to assist their clients. Here’s what the platform offers to legal and mental health professionals, solicitors, social workers, mediators and divorce coaches.

Quickly generate documentation when you need it

You can generate clear, court-admissible reports for any actions in the app. When logged in to your Professional Account from a computer, you can filter by date range, topic, category, and more before downloading a tidy, organised PDF.

What you can download

Messages envelope

Log in history arrow-right-to-arc

Schedule change request calendar-range

Reimbursement requests and payments  receipt

GPSCheck-ins  location-dot

And more sparkles

View client activity

You can directly observe all the in-app interactions between your client and their co-parent .

includedwhenoneparentgrantsaccess   AlsoincludedwhenBothparentsgrantaccess

Send messages to your clients

Create, suggest, & help

If you are working with both parents or their child as a neutral professional, such as a parenting coordinator or a mediator, you can:

    41

Create parenting schedules

Upload shared files

Suggest a schedule change

With our two package levels and our inclusive financial programmes, all co-parents who need extra support can find an option that works for their families.

Choose your own £6.58/Month

£79 billed annually

1 year subscription with access to all our main tools for co-parents

1 GB secure file storage

Unlimited access for family law professionals

Unlimited downloads of PDF records

Optional Add-Ons

Real-time feedback on the tone of messages from ToneMeter

Package A

£8.25/Month

£99 billed annually

1 year subscription with access to all our main tools for co-parents

5 GB secure file storage

Unlimited access for family law professionals

Unlimited downloads of PDF records

Real-time feedback on the tone of messages, journals, and calendar entries from ToneMeter Plus

Two-year subscription plans also available for each package type

M ili t ar y f a m il y d iscoun t

Military families face additional hurdles when trying to stay connected and organised. When one parent purchases a subscription, their co-parent receives a subscription at no additional cost. From 2018 to 2022, we helped over 5,700 military families.

Download the form at:

OurFamilyWizard.co.uk/military-discounts

F ee W ai v ers

Divorce and separation isn t exclusive to those who can afford it. We are proud to be able to offer free and greatly reduced subscriptions for those on low income. From 2018 to 2022, we granted over 23,000 fee waivers.

Download the form at:

OurFamilyWizard.co.uk/fee-waivers

Draft Order Template

With input from family law professionals across the country, we developed a draft order template.

If you are suggesting to the court that OurFamilyWizard be court ordered, consider using the language or the full template as a reference.

Download our draft order template

ourfamilywizard.co.uk/practitioners/ draft-order-template

Haveany questions?

Ifyou’dliketoscheduleaone-on-onetutorial, our Professional Liaisons willbehappyto workwithyou.If you have anyquestions about how OurFamilyWizardcould benefit yourpractice, your role,or your clients,letus know!

KatieDeans

07862 138 264

kdeans@ourfamilywizard.co.uk

NeedTechHelp?

Ifyou need helpcreatingyourfree Professional Account, orif yourun into any tech problems,contactour friendly Customer Support Team:

info@ourfamilywizard.co.uk

+44 (0)203514 0008

Hannah Court

Family

Year of Call: 2015

Email Clerks: family@no5.com

Hannah was called to the Bar in July 2015 after having achieved a First Class Law degree and her performance being graded as ‘Outstanding’ on the Bar Professional Training Course. Subsequent to being called to the Bar Hannah undertook the Bachelor of Civil Law at the University of Oxford where her specialist subjects included Commercial Remedies, Principles of Unjust Enrichment, Corporate Insolvency and Principals of Financial Regulation.

Hannah is a family law specialist. Over the years, she has developed a diverse practice in the area of family law and has acquired a wealth of experience. She accepts instructions in all areas of family law with a specifc focus on Private Children, Public Law Children and Matrimonial Finance. She also has a great deal of experience in both pursuing and defending applications pursuant to the Family Law Act 1996.

She has appeared up to, and including, High Court level. She is patient and compassionate with her clients but will give robust advice.

Children – Public Law

Hannah is regularly instructed to represent Local Authorities, parents, and children throughout all stages of Public Law proceedings. She has also previously represented the interests of Grandparents.

Hannah has been instructed in cases featuring a number of complicated issues, to include: neglectful parenting; domestic abuse; drug and alcohol misuse; sexual abuse; parental alienation; FII; non-accidental injury; DOLs. She has appeared in the High Court in relation to the issue of childhood immunisations and DOLs.

Hannah has experience of representing client’s with signifcant learning disabilities and communication diffculties and is adept at delicately and professionally handling such situations.

Children – Private Law

Hannah has developed a vast amount of experience in Private Law proceedings. Within her Private Law practice, Hannah has often successfully argued the recommendations contained within a Section 7 report should not be followed by the court where these are not accepted by her client. She has also successfully challenged the recommendations of an expert psychologist and persuaded the court not to accept the same following lengthy cross examination.

Hannah has been instructed in multi-day fact fnding hearings involving a number of serious allegations to include: physical violence, sexual abuse (to include the most serious forms), child sexual abuse, honour-based violence, coercive and controlling behaviour, psychological abuse, fnancial abuse and parental alienation.

Hannah has appeared up to Circuit Judge level and has been instructed in appeals in this area.

Matrimonial Finance

Hannah possesses a good level of experience in matrimonial fnance and is keen to further develop this area of her work. She has acted in cases involving: complicated trust fund issues, intervenors, avoidance of dispositions, signifcant pension assets, multiple properties and family businesses. She has experience of representing clients at all stages of fnancial remedy proceedings, to include contested fnal hearings. Hannah always strives to achieve the most pragmatic and cost-effective outcome for her clients.

Recommendations

Client Testimonials

“Impressed…Hannah got to grips with the issues very quickly and thoroughly and got the best result available in the circumstances.” (professional client)

Hannah is consistent in her attitude, thoroughly prepared and extremely professional in her approach. So thoroughly prepared and achieving excellent results. Amazing.” (professional client)

“I was extremely impressed with how Hannah presented my case and her level of professionalism was second to none. I 100% wouldn’t hesitate to use her again in the future!!” (lay client)

“I just wanted to feedback to you that Hannah did an absolutely amazing job in representing my client. She liaised with my client at all times and was able to return the child back to my client, something that seemed very unlikely before the hearing was due to take place. Hannah sent me her attendance note straight away together a well-drafted clear order, she was simply brilliant.” – (professional client)

“Miss Court was a calming infuence in a complex family case. Her ability to swiftly determine key facts and communicate them in a simple way is awe inspiring. She is a very intelligent woman with an innate ability to think on her feet with breath taking speed…She is a woman of exceptionally high intellect and integrity and her conduct was in line with the very best traditions of the bar. I would recommend her to anyone in an instant.” (lay client)

Awards

Middle Temple Pupillage Award (2017)

Middle Temple Certifcate of Honour (2016)

Bristol Futures Award (University of the West of England, 2014)

Memberships

Baron Dr Ver Heyden de Lancey Prize (Middle Temple, 2016)

The Faculty of Business and Law Prize (University of the West of England, 2015)

Middle Temple Midlands Circuit

Qualifcations

LLB Hons, University of the West of England – First Class Bar Professional Training Course - Ranked as ‘Outstanding’

Bachelor of Civil Law, University of Oxford ADRg Accredited Civil and Commercial Mediator.

Costs -Private Children’s proceedings

Presented by –Hannah Court 14th March 2024, Malmaison, Birmingham

General principles…

FPR 28.1 –“the court may at any time make such order as to costs as it thinks just”

Re T(a child) (order for costs) [2005] EWCA Civ311 –costs order against a parent generally considered “exceptional”

Re T (children) (care proceedings: costs) [2012] –there should be no order for costs in the absence of “reprehensible behaviour” or an “unreasonable stance”.

CPR 44.2 (1) –“the court has discretion as to:

(a)whether costs are payable by one party to another;

(b)the amount of those costs; and

(c)when they are to be paid.”

General principles…

CPR 44.2(4) –“in deciding what order (if any) to make about costs, the court will have regards to all the circumstances, including –

(a)Conduct of the parties;

(b) Whether a party has succeeded on part of its case, even if that party has not been wholly successful.

CPR 44.2(5) –“the conduct of parties includes –

(a)Conduct before, as well as during, the proceedings;

(b) Whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(c) The manner in which a party has pursued/defended its case or a particular allegation/issue; and

(d) Whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.”

Some examples

C v S [2022] EWCH 800 (Fam)

Re A and B (Parental Alienation No 3)[2021] EWHC 2602 (Fam)

Re B (A Child) (Unnecessary Private Law Applications) [2020] EWFC

B44:

“the message in this judgment to parties and lawyers is this, as far as I am concerned. Do not bring your private law litigation to the Family court here unless it is genuinely necessary for you to do so. You should settle your differences (or those of your clients) away from court, except where that is not possible. If you do bring unnecessary cases to this court, you will be criticised, and sanctions may be imposed upon you. There are many other ways to settle disagreements, such as mediation.

Fact Finding Hearings

GojkovicvGojkovic(No2)[1991]2FLR233,CA:

“... there still remains the necessity for some starting-point. That starting-point, in my judgment, is that costs prima facie follow the event ... but may be displaced much more easily than, and in circumstances which would not apply, in other Divisions of the High Court.”

ReJ(CostsofFactFindingHearing)[2010]1FLR1893, WilsonLJ:

“theeffectofthedirectionforaseparatefact-findinghearingcanconfidentlybeseentobe whollyreferabletoherallegationsagainstthefather.Therewasinthatsensearingfence aroundthathearingandthusaroundthecostsreferabletoit.Thesecostsdidnotrelatetothe paradigmsituationtowhichthegeneralpropositioninfavourofnoorderastocostsapplies.”

Basis of assessment

CPR44.3 – Basisofassessment

(1)Where the court is asked to assess the amount of costs it will assess those costs

(a)on the standard basis or;

(b)on the indemnity basis

but the court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount.”

Standard basis: The court will only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed/reduced even if reasonably/necessarily incurred. Any doubt as to whether reasonably or proportionately incurred = resolved in paying parties favour.

Indemnity basis: Court not required to consider whether costs are proportionate. Any doubt as to whether reasonably incurred = resolved in receiving parties favour.

Procedure

FPR 2010 –silent on procedure.

Re ABCDE [2018] EWHC 1841 (Fam) -CPR PD44 Para 9.5 provisions should be adopted.

Para 9.5(2) –Each party who intends to claim costs must prepare a written statement of those costs in the form of a schedule (Form N260).

Para 9.5(4) –Statement of costs must be filed at court and copies of it must be served on the other party as soon as possible and in any event not less than 24 hours before the hearing.

Para 9.6 –Failure to comply with para 9.5 without reasonable excuse will be taken into account by the court in deciding what order to make about costs of the application.

Legal aid implications

Re T (children) (care proceedings: costs) [2012] -if it is appropriate to make a costs order, it is irrelevant whether or not a party is legally aided.

LASPO2012,Section26(1):

Costsorderedagainstanindividualinrelevantcivilproceedingsmustnotexceedthe amount(ifany)whichitisreasonablefortheindividualtopayhavingregardtoallthe circumstances,including—

(a)thefinancialresourcesofallof thepartiestotheproceedings,and

(b)theirconductinconnectionwiththedisputetowhichtheproceedingsrelate.

Costs orders against Lord Chancellor

The Civil Legal Aid (Costs) Regulations 2013: Part 3, Regulation 10:

The court may make an order for the payment by the Lord Chancellor to the non-legally aided party of the whole or any part of the costs incurred by that party in the proceedings (other than the costs that the legally aided party is required to pay under a section 26(1) costs order).

An award will only be made if:

(a)Asection26(1)costsorderhasbemadeagainstthelegallyaidedpartyandtheamount (ifany)whichthelegallyaidedpartyisrequiredtopayunderthatcostsorderisless thantheamountofthefullcosts;

(b)Arequestismadewithin3monthsofcostsorder(ifafter,agoodreasonrequired);

(c)Thefollowingconditionsaremet:

i)theproceedingswereinstitutedbythelegally-aidedparty;and

ii)thenon-legallyaidedpartyisanindividual;and

iii)thenon-legallyaidedpartywillsufferfinancialhardshipunlessanorderismade.

(d)Thecourtissatisfiedthatitisjustandequitabletomakeprovisionoutofpublicfunds.

Costs -Private Children’s proceedings

Presented by –Hannah Court hc@no5.com

Heather Popley

Family

Year of Call: 2003

Email Clerks: family@no5.com

Heather’s practice areas include the following:-

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.

Private law Children

Heather has extensive experience of private law children cases involving complex issues, including parental alienation and implacable hostility cases; fact fndings, 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 for complex legal argument, Scott Schedules, threshold documents and submissions. She appears regularly in the Family Court and High Court. She is happy to advise parties in person at conferences not only at Chambers but also at instructing solicitor’s offces if this is more convenient.

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 diffculties requiring a litigation friend to be appointed, including cases involving the appointment of the Offcial Solicitor.

Heather is qualifed to accept public access instructions.

Recommendations

“Heather is a strong advocate who works hard to ensure her clients interests are carefully represented. She is persuasive and articulate. She is popular and respected by her peers as well as the local judiciary. She communicates well and her client care is excellent.”

Legal 500 2023 - Ranked Tier 2

“Heather has incredible attention to detail and is very tenacious. Heather is an excellent advocate. She handles the most complex cases. She provides high levels of client care.”

Chambers UK 2023 - Ranked Tier 3

Ranked Tier 2

Legal 500 2022

Notable Cases

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

RE T(A Child) [2016] EWCA Civ 1210 (06 December 2016)

Memberships

Member of the FLBA

The Honourable Society of Gray’s Inn

The Midland Circuit Association of Lawyers for Children

Qualifcations

LL.B. (Hons)

Called to the Bar 2003 Gray’s Inn

Orla Grant

Family

Year of Call: 2005

Email Clerks: family@no5.com

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.

Ancillary Relief:-

Orla has experience in all aspects of ancillary relief work and has appeared, advised (both in writing and in conference) and drafted documents on behalf of applicants, respondents and intervenors in applications for maintenance pending suit, s.37 injunctions, FDAs, FDRs , Final Hearings, Appeals and Enforcement Applications and Schedule 1 applications. Orla has experience of cases involving substantial assets and is available for instruction in round table discussions.

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 fnding 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 fnding 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 profle 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 Offcial Solicitor or who have cognitive functioning diffculties.

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.

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-atLaw, 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.

Recommendations

“Orla is a true children law specialist. She is superb with clients.”

Chambers UK 2023

Ranked Tier 1

Legal 500 2023 Child Law (Public and Private))

Orla is an incredibly dedicated, diligent and tenacious barrister. Orla always goes the extra mile for her clients and is not afraid to take on diffcult cases.

Legal 500 2022

“Orla garners trust in clients from the get-go and never loses sight of their fundamental objectives and concerns.” “She is well organised and prepares very well for cases.”

Chambers UK 2022

“She pays close attention to detail.”

Chambers UK 2021

“Inspires confdence in solicitors and clients.”

Legal 500 2021

“Her legal knowledge and professionalism are matched perfectly by her complete dedication to each case. She is meticulous in her preparation of every aspect of a case and her planning means she is able to take complex matters and diffcult situations in her stride, whilst making clients feel comfortable in her care, ensuring they get the very best outcomes and access to justice.”

Chambers UK 2020

“Inspires confdence in solicitors and clients.”

Legal 500 2020

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 fnding 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.

Memberships

Lincoln’s Inn Midland Circuit

Association of Lawyers for Children

Qualifcations

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

Orla is qualifed to accept instructions on a Direct Access basis

Appeals and Set Asides in Private Law Children cases

Presented by –Heather Popley and Orla Grant 14th March 2024, Malmaison, Birmingham

Appeals

Legal background

 SinceOctober 2016, all appeals in private law children’s cases from a judge of Circuit Judge level (iecircuit judges, deputy circuit judges and recorders) are to a High Court judge and are not to the Court of Appeal.

 Most decisions of the lower court require leave from that court or, if refused, from the High Court before an appeal may proceed.

 An appeal from a decision of a judge of the High Court lies to the Court of Appeal, unless a certificate has been issued by that judge stating that the case merits a ‘leapfrog’ appeal direct to the Supreme Court. Where such a certificate is granted, a prospective appellant must seek leave of the Supreme Court to appeal direct and, if such leave is refused, he may then appeal to the Court of Appeal (see AJA 1969, s 13). Note, Criminal Justice and Courts Act 2015, s 63(3) amends AJA 1969, s 12 to introduce new grounds for a ‘leapfrog’ appeal.

Procedure -General

 Appeals from lay justices are made without permission to appeal to a judge of Circuit Judge level.

 An appeal from a District Judge (magistrates’ court) requires permission to appeal. Appeals from a judge of District Judge level (including a DJ(MC)) are to a judge of Circuit Judge level. Such appeals may be heard, however, by a judge of High Court level if the designated family judge or a judge of High Court level consider the appeal would raise an important point of principle or practice.

 Appeals from the Senior District Judge of the Family Division or from District Judges of the PRFD in financial remedy matters are made to a judge of High Court level. Appeals from the Senior District Judge of the Family Division or District Judges of the High Court are made to High Court judges: FC(CDB)R 2014, rr2-7 and FPR PD30A, paras 1.2, 2.1, 2.2.

 Note, an appeal from a judge of Circuit Judge level (iecircuit judges, deputy circuit judges and recorders) in all private law children’s matters is made to a judge of the High Court and not to the Court of Appeal: see Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) (Amendment) Order 2016.

General considerations

 Time is limited –21 days to lodge your application unless the lower court has indicated a different timescale.

 In public law cases the appeal should be made as soon as possible (and for example this would apply if an urgent issue is the subject of your appeal.

 A stay should be considered and sought if appropriate (for example a removal case/ immediate ‘lives with’ change).

 An application for permission to appeal does not mean you have a stay of the order –you must seek a stay too.

Who may appeal?

Permission to appeal

 With permission, any party who is aggrieved by the decision may seek permission.

 Required for all cases apart from where the appeal is against:

(a)a committal order

(b) a refusal to grant habeas corpus

(c) a secure accommodation order; or

(d) otherwise as provided by PD.

Permission to appeal

 Application may be made to the judge if possible (if not to a High Court Judge of the Family Division) or, if refused, to a High Court Judge of the Family Division.

 Consideration of permission is without a hearing unless a hearing is requested.

 Respondents will be notified, but do not attend, unless requested by the appeal judge.

 For the permission hearing, the proposed appellant should lodge a Notice and an appeal bundle with as many documents as are available (see below).

 Permission may be subject to conditions or may limit the issues.

Permission to Appeal

 Permission to appeal may only be given where:

(a)the court considers that the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard.

 An order giving permission may:

(a) limit the issues to be heard; and

(b) be made subject to conditions.

Procedure

 Ensure you are familiar with:

-Family Procedure Rules 2010 Part 30 –applicable for Family Court and High Court appeals

-Family Procedure Rules 2010 PD 30A

-CPR 1998, Pt 52 and Practice Direction 52

Grounds of Appeal

 The grounds of appeal need to clearly set out why Rule 30.12 (3)(a) or (b) is said to apply, namely:

“The appeal court will allow an appeal where the decision of the lower court was –(a)wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

And

 Specify whether the ground raises an appeal on a point of law or is an appeal against a finding of fact.

Case law update

HH (A Child: Stay of Order pending Appeal) [2022] EWHC 3369 (Fam)whether a contact order made in private law family proceedings should be stayed pending an appeal against findings of fact.The judgment sets out the key principles to be taken into accountwhen an application for a stay is considered alongside an application for permission to appeal.

Mother v Father [2022] EWHC 3107 (Fam) - appeal against a case management decision taken by a lay bench at a final hearing in a private law children’s matter to not permit cross-examination or hear oral evidence from the parents, and only to permit oral evidence fromthe CAFCASS officer.

Case law update

The Mother v The Father [2023] EWHC 2078 (Fam) (14 August 2023)An appeal before the President of the Family Division relating to costs in Appeal cases. The case involved a lengthy history with a background of parental alienation and failed appeal to reopen a previous factfinding.

K and K [2022] EWCA Civ468: Guidance on Fact-finding Hearings in Private Family Law Proceedings -he court is not obliged to hold a fact-finding hearing in every case where domesticabuse isalleged. The decision, which follows on fromthe seminal case of Re HN(Children) (DomesticAbuse: Finding of Fact Hearings)[2021] EWCACiv 448, instead makes it clear that the court ought only to embark on a fact-finding hearing if “the alleged abuse is likely to be relevant to what the court is being asked to decide relating to the children’s welfare”.

Set Asides

Legal Background

 The law seeks finality in its orders (egin Ampthill Peerage [1977] 1 AC 547, HL, at [569]).

 Exceptional circumstances may occur later that justify reconsideration of the original order. Circumstances may come to light of which the court was not aware at the time of a final hearing (egnon-disclosure of material financial information by one of the parties (Sharlandv Sharland [2015] 2 FLR 1367, SC; Gohil v Gohil [2015] 2 FLR 1289, SC) or background information in relation to a child or a couple’s matrimonial circumstances in relation to their divorce).

 An assumption on which the original order was based may change fundamentally (Barderv Barder [1987] 2 FLR 480, HL). In such instance it may be appropriate to seek permission out of time to appeal against the order.

 In proceedings in the Family Court (but not in the High Court: SCA 1981, s 17) it may be possible formally to apply back to the original court to review its order under MFPA 1984, s 31F(6), instead of by formal appeal and as explained by the Court of Appeal in E (Children: Reopening Findings of Fact) [2019] EWCA Civ1447.

 If circumstances arise after the hearing but which –unknown to the applicant and maybe (or not) to the respondent –existed at the time of the final hearing, it may be open to a party to apply to the court for the original order to be set aside and to seek a re-hearing, whether by interim application (FPR 2010, Pt 18), appeal (SCA 1981, s 16) or originating application (Sharland (above)).

 It may be possible for a party to apply to revoke or vary an order (FPR 2010, r 4.1(6); Tibbles v SIG plc [2012] 1 WLR 2591, CA) or to apply to rescind an order (MFPA 1984, s 31F(6); Norman v Norman [2017] 1 WLR 2554, CA).

 Application to set aside may be made in such circumstances as where an order is vitiated by, for example, non-disclosure, fraud, mistake (see list in PD9A, para 13.5) or other such factors; for example, where judicial bias is successfully alleged (Locabail(UK) Ltd v Bayfield Properties Ltd & Anor [2000] QB 451) or where there has been a material change of circumstances that affects a child (N v J (Power to Set Aside Return Order) [2018] 1 FLR 1409, FD).

Review by the Family Court of findings of fact in children proceedings

 In E (Children: Reopening Findings of Fact) [2019] EWCA Civ1447 the CA specifically considered the ability of the Family Court (but not the High Court) to review its own earlier findings on application back to the original court where further facts have emerged later (egin subsequent criminal proceedings).

 Application can be made by the party seeking ‘review’ (a term used by Peter Jackson LJ in the CA in Re E) under FPR 2010, Pt 18 (and see commentary under MFPA 1984, s 31F(6)).

 In the case of Re EPeter Jackson LJ commented:

(1) to what extent can a court –whether on appeal or by reference back to the trial judge –review earlier findings of fact made in children proceedings; and (2) is this best done by a free-standing application to the judge who made the original decision;or on appeal, with application out of timeand to adduce fresh evidence (as need be)?

 A further recent review of the law in such cases by the Court of Appeal is the matter of J (Children: Reopening Findings of Fact)[2023] EWCA Civ465 in which the court gave the following helpful summary of the 3 stage test for reopening findings:

“6. In summary, the test to be applied upon an application to reopen a previous finding of fact has three stages. Firstly, the court considers whether it will permit any reconsideration of the earlier finding.Ifit is willing to do so,the second stage determinesthe extentofthe investigations and evidence that will be considered, while the third stage is the hearing of the review itself.

7. In relation to the first stage: (i) the court should remind itself at the outset that the context for itsdecision is a balancing of importantconsiderationsofpublic policyfavouring finality in litigation on the one hand and soundly-based welfare decisions on the other; (ii) it should weigh up all relevantmatters, including the need toputscarce resourcestogood use,the effect of delay on the child, the importance of establishing the truth, the nature and significance ofthe findings themselves and the qualityand relevance of the further evidence; and (iii) above all, the court is bound to want to consider whether there is any reason to think that a rehearing ofthe issue will result in anya different finding from that in the earlier trial. There must be solid grounds for believing that the earlier findings require revisiting.”

Thank you for listening

Appeals and Set Asides

Presented by –Heather Popley & Orla Grant hpo@no5.com & og@no5.com

Jennifer Moles

Family - Family

Year of Call: 2015

Email Clerks: family@no5.com

Jennifer is a barrister specialising in all areas of family law and has appeared at all levels up to, and including, the High Court.

Jennifer is a determined and passionate advocate, who works diligently to achieve the best possible result for her clients. Jennifer is adept at building an immediate and strong rapport with those she represents, refecting her compassionate and empathetic approach. Jennifer is able to quickly and meticulously grasp key issues within a case and formulate a clear strategy to achieve the optimum outcome.

Outside of court, Jennifer is an active member of the legal community and sits on a number of professional committees. Jennifer is also a Trustee and Board Member of Northamptonshire Domestic Abuse Service and has delivered several workshops for the Schools Consent Project on issues surrounding sexual consent.

Private Law Children Proceedings

Jennifer has amassed wide experience of representing parties in private law matters. Jennifer frequently represents parties in applications for contact and residence, Specifc Issue Orders, Prohibited Steps Orders and enforcement, at all stages of proceedings. Jennifer has represented parties in multi-day fact-fnding hearings and fnal hearings, entailing the cross-examination of several witnesses, where the allegations have included serious domestic violence, sexual abuse, physical chastisement, substance misuse and parental alienation. Jennifer also regularly acts on behalf of Rule 16.4 Children’s Guardians in cases where there are signifcantly complex issues and allegations, including Female Genital Mutilation, covert recording of children and parents, parental alienation and sexual abuse of both children and parents.

Public Law Children Proceedings

Jennifer has signifcant experience in public law proceedings and is regularly instructed to represent parents, Children’s Guardians, children who are separately represented, extended family members and Local Authorities at all stages of proceedings. Jennifer is often instructed to represent vulnerable parties with complex mental health issues and learning diffculties. Jennifer’s caseload to date has involved allegations of chronically neglectful parenting, physical, emotional and sexual abuse, substance misuse and non-accidental injuries.

Family Law Act Proceedings

Jennifer regularly receives instructions in serious Family Law Act applications, including Non-Molestation Orders and Occupation Orders. Jennifer always ensures that participation directions are sought, where relevant, to protect vulnerable clients throughout the proceedings, and that particular care is given to ensuring the client feels safe within the proceedings. Jennifer has also successfully represented several respondents to such applications.

Financial Remedy Proceedings

Jennifer receives regular instructions in all aspects of fnancial remedy proceedings, including applications for maintenance pending suit and applications pursuant to TOLATA 1996. Jennifer has represented spouses at all stages of proceedings, from preliminary hearings through to fnal hearings.

Professional Background

Prior to commencing her practice, Jennifer undertook an array of legal work experience; this included employment as a Paralegal in private practice and at a Local Authority, in addition to working as a County Court Advocate in the Civil Courts. In 2016, Jennifer was awarded the Anglo-American Exchange Scholarship from Middle Temple to work as an intern in Iowa, USA, along-side senior Counsel, during which time she assisted with mediations, client conferences and prison visits.

In September 2018, Jennifer won the Middle Temple Amity Moot in Hong Kong along with her mooting partner, Queen’s

Counsel, whom she was led by.

Appointments

Committee Member of the Middle Temple Hall Committee

Committee Member of the Midland Circuit Women’s Forum

Awards

Anglo-American Exchange Scholarship – Middle Temple

Treasurer of the Middle Temple Midland Circuit Society

Board Member and Trustee of Northamptonshire Domestic Abuse Service (formerly Northampton Women’s Aid)

Lord Diplock Scholarship – Middle Temple (Major Scholarship)

Blackstone Entrance Exhibition Award – Middle TempleBPTC Award – University of Law

BP Ambition Award – University of Nottingham

Memberships

First in the Family Scholarship – University of Nottingham

Middle Temple Midland Circuit

Qualifcations

BA Honours Philosophy (2:1)

Graduate Diploma in Law (Commendation) Bar Professional Training Course (Very Competent)

When It All Goes Wrong II: Committals

Presented by Jennifer Moles

14th March 2024, Malmaison Birmingham

Issuing a Committal Application: When and Why?

 Committal applications are rare in Children Act proceedings (as they should be).

 Committal falls under the umbrella of enforcement where there has been a breach of a CAO, but are other options more appropriate?

 Referral of the parents to undertake various work (e.g. Parenting Apart);

 Variation of the CAO;

 Contact enforcement order or suspended enforcementorder under section 11J Children Act 1989 (‘Enforcement order’ for unpaid work),

 Order for compensation for financial loss (under section 11O Children Act 1989);

 Afine.

Issuing a Committal Application: When and Why?

 Last resort:

 Party not engaging within the proceedings;

 Repeated failure to comply with a PSO (e.g.to return a child) (see Borg v El-Zubaidy[2017] EWFC 58 and Gibbs v Gibbs [2017] EWHC 1700 (Fam))

 Repeated failure to make a child available for contact (after firstly attempting other avenues of enforcement).

 Where the Defendant’s breach is an active breach that directly strikesat the heart ofwhatthe court ordered, it may be appropriate to impose a custodial sentence (Re X (A Child by His Litigation Friend) [2011] 2 FLR 793, CA).

 Forging of documents? (Griffith v P [2020] EWCA Civ1602)

 Breach of FMPO/FGMPO

Some key questions:

 Do you really want the other parent to potentially go to prison?

 Is this application the only way to achieve the desired outcome?

 Will this irreparably damage the parental/familial working relationship?

Procedure, Procedure, Procedure

 Governed by Part 37 of the FPR

 Needstobesupportedbywrittenevidence;

 Contemptapplicationmustinclude all ofthepointssetoutwithin thissection(sectionsa-sof37.4(2);

 Includesremindingdefendantof theirrighttosilence

 Includesremindingthemthattheyhavearighttobelegally represented(ReO(Committal:legalrepresentation)[2019]EWCA Civ172)

 MustbeextravigilantwheretheDefendantisaLIP (Hammertonv Hammerton[2007]2FLR1133,CA).

 Courtcan(andwillnothesitateto)strikeouttheapplicationifthereisany failuretocomplywitharule,practicedirectionororder (e.g. ReH[2018]

EWCA3761(Fam));NasrullahMursalin[2019]EWCACiv1559.NB: McKayvAllEnglandLawnTennisClub&Ors[2020]EWCACiv695

Procedure, Procedure, Procedure

 Common pitfalls:

 Re L; In the matter of GousOddin[2016] EWCA Civ173, Theis J said at para.78:

“Before any court embarks on hearing a committal application whether for a contempt in the face of a court or for a breach of an order, it should ensure that the following matters are at the forefront of its mind: …(ii) prior to the hearing, the alleged contempt should be set out clearly in a document or application that complies with FPR r.37, and which the person accused of contempt has been served.”

 Some applications fail on both grounds!

 Lack of sufficient evidence and/or application not addressing the matters outlined within r37.4 FPR.

 No penal notice/incorrectly worded penal notice (CH v CT [2019] 1 FLR 700); Re Nasrullah Mursalin [2019] EWCA Civ1559)

More on Penal Notices…

 An order can only be enforced by committal if it is endorsed with a penal notice.

 A defective penal notice similarly makes the order unenforceable (Re Dad [2015] EWHC 2655).

 Do not conflate this with a warning notice contained within a CAO (occurred in CH v CT [2019] 1 FLR 700).

 Wording of penal notice—The former PD37A prescribed the wording of a penal notice. No longer a prescribed form of words but it is suggested that this wording, or wording substantially to the same effect, can be used.

 Ensure the penal notice attaches to relevant paragraph of Order and is also flagged in bold at top of Order.

Service

 Personal service—Normal method of service of a committal application. NB: note r37.5(2) where the defendant has a legal representative on the record (see FPR Part 26; where a party instructs a solicitor, the solicitor’s address is the address for service).

 Personal service is rarely dispensed with and is likely only if, for example, the defendant is aware of the application and is proved to be evading service. Service is dealt with in FPR Part 6.

 The Solicitor can object within 7 days in writing if they do not want to accept service. If they do so, then the matter should be referred to a judge, along with the contempt application.

Instructing Counsel Early On

1)The procedure is technical; particularly when making the application, it is important to instruct Counsel as early as possible for them to check and advise on the application.

2)Counsel can assist to rectify any potential procedural defects before the application is made and service takes place, to ensure an effective committal hearing.

3)If Counsel is instructed to defend the application, the earlier they can pick apart the application the better, and prepare a Position Statement/Skeleton Argument in good time to get the judge on side.

The Hearing -Directions

 ClaimantmayneedtoseekanorderthattheDefendantattends;ifthinknot goingto,thenapplyforanorder.Courtcanissueawitnesssummonsto anyone;evenifanapplicationhasnotbeenmadebyaparty(althoughunlikely tohappen,butcourtdoeshavethispower).

 Allegedcontemnornotacompellablewitnessbutcangetorderthatthey attend.Courtcanissueabenchwarranttosecureattendanceiftheyfailto attendhavingbeenorderedtodoso.

 CanmakeanordertheyhavepermissiontofileaWSbutcannotcompel theDefendanttofilematerial.

 Shouldlistmatterpromptly(14days,unlesscourtdirectsotherwise),but theDefendantneedstohavehadopportunitytoseeklegaladvice.

 Ensurethecommittalhearingislistedwithatimeestimateofatleastone day(anylessthanthisanditfeedsintotheargumentthattheDefendant’s Article6rightshavenotbeenupheld).

The Hearing -Committal

 Standardofproofisequivalenttoacriminalchargeandmustbeproved beyondreasonabledoubt (CambravJones[2014]EWHC2264 (Fam),MunbyP)

 Wherepossible,makesureallallegationsareconsideredatthesame hearing;wouldneedfindingsoneachallegation.Rolledupfindingsand sentences=notgoodpractice.

 Judgeandadvocatesmustberobed.

 Claimant must prove case on evidence in support of the application, supplemented by whatever admissions have been made by the Defendant.

 Evidence may be heard, but note Defendant’s right to silence (Andreewitchv Moutreuil[2020] EWCA Civ 382). NB: see Re T (Children) [2020] EWCA Civ1344 –adverse inferences.

 Defendant may submit no case to answer.

The Hearing –Committal (cont’d)

 Defendant may submit no case to answer.

 Hearings will normally be in public but court has discretion as to how it is to be conducted –r37.8. Court can also sit in private to secure administration of justice, but extremely rare.

 Committal hearing must be heard separately from any other hearing in the matter. Would likely have to deal with non-committal hearing first if more than one issue is to be considered (because committal order could be made!

 If contempt found proved then the Defendant must be allowed to address the Court separately by way of mitigation; this may take place on a different day.

 Can deal with committal hearing in the Defendant’s absence but if do so then will almost certainly want to adjourn for sentence(NB: see Frejekv Frejek[2020] EWHC 1181 (Ch) – ensuring proper notice in Defendant’s absence).

 Pursuing the application:

 Water-tight application;

 Ensuring proper service (with no wriggle-room);

 Ensure previous orders include correct penal notice/directions;

 Skeleton/PS in advance of the hearing.

Beware…

 Court can make an application for committal of its own motion.

 Court can decide to hear evidence even if Claimant decides not to pursue their application any further.

 If process server is called, they may well recognise your client!

Sentencing

 Incarcerationlimitedto2years(see HalevTanner[2000]2FLR879,CA, assupplementedby LomasvParle[2004]1 FLR812,CA and MurrayvRobinson[2006]1FLR365,CA.)

 Sentencescanbereducedbyuptoonethird(admissionofbreach).

 Nopowertoimposeacommunityorder;reservedforthecriminalcourt.

 Casesofrepeatoffenders(especiallytakingchildrenabroad)aredifficult.Onceservedtwoyearsthenquitedifficultto goanyfurtherasreachedlimitthatstatutepermits.

 Sentencescanbesuspended.Imposingsentencevssuspendingsentencearetwodifferentpoints.

 Nopowertoremandincustodypendingsentence.

 Thereisnopowertosentenceanyoneundertheageof18foracontempt.18-21wouldgotoaYOIratherthanadult prison.

 Claimantcanatanypointapplytopurgecontempt.

 Anappellatecourtisunlikelytointerfereunlessthesentencepassedismanifestlydisproportionateorexcessive(Slade vSlade[2010]1FLR160,CA).

What Next?

 Appeal? CPR 1998, r 52.3; FPR 30.3(2); Poole BC v Hambridge [2007] EWCA Civ990 – Claimant needs permission; Defendant does not.

 s37 direction?

 Safeguarding referrals?

 Interim change of residence?

 16.4 Guardian?

 Early conclusion of proceedings?

 Costs? (see H v Dent and Others [2016] 2 FLR 566, FD)

When it all goes wrong: Committals

Presented by Jennifer Moles jrm@no5.com

Mark Jones

Family

Year of Call: 2019

Email Clerks: family@no5.com

Mark joined No5 Chambers as a tenant in October 2021 following successful completion of his pupillage under the tutelage of Richard Hadley. Mark practices in all aspect of family law.

In public law proceedings, Mark is regularly instructed by local authorities, parents and guardians. He is instructed at all stages of proceedings from contested removal hearings (including applications for ex parte emergency protection orders and interim care orders) through to fnal hearings. Mark has also been instructed on behalf of local authorities and parents in cases involving deprivation of liberty orders and secure accommodation orders.

In addition to his public law practice, Mark has developed an extensive private law practice. He is regularly instructed on behalf of parents in cases involving allegations of serious domestic violence, sexual abuse, causing signifcant harm to children and parental alienation. During his time at No5 he has acted in numerous multi-day fact-fnding hearings and fnal hearings. Mark has also accepted instructions in matters heard in the High Court.

Mark also receives instructions in Family Law Act proceedings, regularly representing applicants and respondents at all stages of proceedings including contested fnal hearings.

Mark has also received instructions in fnancial remedy proceedings. This has included providing written advice and representation at preliminary hearings.

Prior to joining No5, Mark worked for the University of Law, delivering talks at many of the UK’s top universities regarding the Bar Professional Training Course.

Memberships

West Midlands Family Law Bar Association

Qualifcations

Bar Professional Training Course with LLM - University of Law, Birmingham (2018 – 2019)

The Honourable Society of Gray’s Inn

Back, back, back again: Dealing with repeat applications

Presented by –Mark Jones

14th March 2024, Malmaison, Birmingham

(1)Legislative Provision -Section 91 (14) CA 1989

S.91 (14) – “On disposing of any application for an order under this Act, the court may (whether or not it makes any other order in response to the application) order that no application for an order under this Act of any specified kind may be made with respect to the child concerned by any person named in the order without leave of the court.”

MAIN TAKEAWAYS:

“Disposing of any application for an orderunder this Act…” No requirement for any other order to be made. “…that no application for an order under this Act…”. Limited to CA 1989. “… without leave of the Court”. This is not a total bar to applications.

(2) Legislative Provision -Section 91 (A)

 Section 91(14) explicitly directs you to Section 91(A). Introduced retrospectively in 2021.

 Test set out Section 91A (2)

- The circumstances… include, among others, that the making of an application under this order under this Act… would put (a) the child concerned or (b) another individual at risk ofharm.

 Who can apply? See Section 91A(5) (a) and (b) .

- Relevant individual. - By or on behalf of the child concerned (separate rep and/or guardian).

- Any other party. - Court’s own volition.

(3)Legislative Provision –PD12

 PD12J, para 37A –in every case where DV has been established, the court should consider whether an order under S.91(14) is appropriate even if no such application has been made.

 PD12B, Para 13A –helpful guidance on the deployment of Section 91(14) orders.

 GenerallycasesofDV.

 Paramountcyprincipleapplies.

 SeePD12Bpara13A:givesalistofotheroccasionswhereitmightbeappropriate (repeatedandunreasonableapps,respiteperiod,certainactionstobetaken,damaging effectonprimarycarerandoverallconduct).

 See PD12Q–key principles (protective filters, not a bar on applications, prevent perpetration of further DV).

(1)Case Law -Procedure

 Indefinite time limits? Re J (A Child) (Restrictions on Applications) [2007] EWCA Civ 906 –Court can make S.91(14) orders without time limit, but this is the exception – ‘case which merit the strongest degree of protection for the child’.

 Notice?

Section91(5)(b)–‘offitsownmotion’.However… ReM(Section91(14)Order) [2012]EWCACiv446,[2012]2FLR758–application shouldbeissuedinadvanceandsupportedbyevidenceunlessthereare urgentor exceptionalcircumstances.

 Litigantsinperson? ReC(LitigantinPerson:Section91(14)Order) [2009]EWCACiv674 –wrongoftheCourttoplaceaLiPinthepositionofhavingtoconfrontaSection91(14) orderatshortnotice.

(2)Case Law -Procedure

Procedural irregularity –serious defects in the procedure adopted may lead to the order being set aside on appeal even when there are strong arguments in favourof granting the order (Re P (A Child) [2016] EWCA 1127). Earlier case of Re A (Contact: Section 91(14)) [2009].

PD12Q –ongoing consideration by the Court. If the Court is considering making an order under Section 91(14), then this should be recorded on the order together with any related directions (see PD12Q, para 3.1).

Modern day changes? Leading authority was Re P (Section 91(14) Guidelines) 1999 2 FCR 289. Now subject to Section 91A, ‘transformative impact’ (F v M 2023 EWFC 5).

 Re A (A Child) (Supervised contact) [2021] EWCA Civ 1749 –‘considerable scope for greater use of protective filter’. COA raising considerable delays in the system as a ‘changed landscape’.

Practical considerations

 Early consideration and applications.

 Application upportedby cogent evidence in the form of a statement justifying why such an order is necessary.

 Welfare remains paramount but consider impact on primary carer. PD contains thorough guidance setting out factors that the Court should be considering.

 Rule 16.4 guardians?

Leave applications following S.91(14) orders

 Test?Don’tovercomplicate-twocases: ReG(ChildCase:ParentalInvolvement)19962FCR1:COA:“isthereanarguable case?”

 ThorpeLJinReA(ApplicationforLeave)19991FCR127(seepara53); “It seems to me undesirable to over-complicate the judicial task where a bar has been imposed and where the person restrained seeks leave to move. In that instance, I would favour the simplest of tests. Does this application demonstrate that there is any need for renewed judicial investigation? If yes, then leave should be granted.

 Primarylegislation–introductionofSection91A(4): S.91(A)(4)-“…thecourtmust,indeterminingwhethertograntleave,considerwhether therehasbeena materialchangeofcircumstances sincetheorderwasmade.”

LeadingcaseofReS(PermissiontoSeekRelief)[2006] EWCACiv1617

Takeaways:

 No application of paramountcy principle.

 Not permissible to attach conditions to the order. However, Court can give an indication that the application is likely to fail if certain conditions are not met.

 Where a type of conduct leads to a Section 91(14), that conduct must have been addressed if the application is to warrant judicial investigation.

 Possible to direct that the leave application is not served on resident parent. N.B this is very rare. Procedure is to consider on paper or at a without notice hearing. If not dismissed at thatstage,proceed to an ‘on notice’hearing to both parties.See PD 12Q, para 6.6 request for oral hearing.

back, back again: Dealing with repeat applications

Presented by –Mark Jones mj@no5.com

Back,

MembersList FamilyGroup

ToviewordownloadmembersCVspleasevisitNo5.com

LornaMeyerKC (Silk:2006 Call:1986)

StefanoNuvoloniKC (Silk:2017Call:1994)

AnneSmallwood (1977)

StephanieBrown (1982)

JoannaChadwick (1988)

AshleyWynne (1990)

RichardAlomo (1990)

MicheleFriel (1991)

AbidMahmood (1992)

NandiniDutta (1993)

RichardHadley (1997)

KristinaBrown (1998)

RebekahWilson (1998)

JamesSnelus (1999)

FemiOgunlende (2000)

ParamBains (2001)

SimonWorlock (2001)

WendyFrempong (2001)

VictoriaClifford (2002)

HeatherPopley (2003)

LouiseHiggins (2003)

DavinaKrishnan (2004)

ChristopherMcWatters (2004)

JamesLeslie (2004)

KathrynTaylor (2005)

OrlaGrant (2005)

KirstyGallacher (2006)

ArtisKakonge (2006)

KatieLangdon (2007)

LauraO’Malley (2007)

LauraVickers (2007)

NicolaMclntosh (2007)

KatieMiller (2010)

NishaBambhra (2011)

RichardMcLoughlin (2012)

RickySeal (2012)

BaldipSingh (2013)

ArrinNouri (2014)

LucyCash (2015)

HannahCourt (2015)

JenniferMoles (2015)

AssociateTenant*

AnnaRohan (2015)

GraceWright (2016)

NaomiDean (2016)

FayeEdwards (2017)

GraceGwynne (2017)

EleanorBerney-Dale (2018)

OliviaWhitworth (2018)

RhiannaManani (2018)

MarkJones (2019)

TimHanson * (1989)

EdwardGrant * (1991)

NazmunIsmail * (1992)

RachaelPrice * (1994)

ChiefExecutive&DirectorofClerking

TonyMcDaid

PracticeDirectors

AdamWadley

ClareRadburn

ChrisMitchell

PracticeGroupClerks

LauraRottreau

SophieWright

GeorgiaHickey

Tel:08452105555

Email:familyclerks@no5.com