Miscellaneous

The court’s power to restrain unreasonable behaviour

An interesting recent case is A Local Authority v TA & Others [2021] EWCOP 3. It discusses the law around recording court hearings and shows the wide power the court has to restrain a litigant’s unreasonable behaviour in the wider court process.

This case concerned an elderly woman, GA, who has dementia and was represented by the Official Solicitor. She was cared for at home by her adult son TA. The court was concerned about the negative impact on the proceedings by the actions and conduct of TA and examined two issues

If TA should be permitted to record the court hearings
the extent to which the court had power to restrict his communications with the court office.

Background

In March 2019 the local authority responsible for meeting GA’s needs under the Care Act 2014 brought proceedings under the Mental Capacity Act 2005.

TA wanted to record the hearings, essentially for his ‘own protection and benefit’ as the local authority employees were ‘pathological liars’ and he had suffered bullying and intimidation from ‘many’ judges. He also objected to the costs of a transcript and pointed out the common delays in obtaining one.

TA’s application was opposed on the basis that the widely recognised default position against recording should be recognised and there was a risk that TA would publish the recordings on the internet, as he had done in the past.

The Judge advised TA that it was possible to be supported in the court proceedings by a McKenzie friend or the services of ‘Support Through Court’. TA could apply to the court for a transcript and in exceptional circumstances, such as wishing to correct an inaccuracy in the transcript, could listen to the official audio recording. (Practice Direction: (Audio Recording of Proceedings: Access) [2014] 1 WLR 632 (considered and confirmed recently in Dring v Cape Intermediate Holdings Ltd. [2019] UKSC 38) at [25]). The Judge indicated he would not grant permission to record, whereupon TA terminated his link to the remote hearing.

Recording court proceedings

The Judge noted that the Court of Protection is not specifically included (see section 85D(2) Courts Act 2003) in the list of courts to which section 55 and schedule 25 of the Coronavirus Act 2020 (‘the 2020 Act’) applies. The 2020 Actintroduced new statutory provisions (sections 85A-85D) into the Courts Act 2003 which allows the court to direct a recording of the proceedings and creates a criminal offence for a person to make or attempt to make an unauthorised recording

However, the guidance ‘Remote Access to the Court of Protection’ issued in March 2020 advised that the terms of the statutory criminal prohibitions were to be included in every standard order thereafter, and had been included in all orders in these proceedings.

Section 9 of the Contempt of Court Act 1981 in addition makes it a contempt of court to record a hearing without the permission of the Judge. There is a discretion under the civil law to permit recording (Practice Direction (Tape Recorders) [1981] 1 WLR 1526) if the applicant had a ‘reasonable need’. The Judge found TA had no such need, having a very good, even ‘extraordinary’ grasp of the procedures, documents and issues engaged.

These proceedings were also subject to ‘Transparency Order’ which prohibits the reporting of any material which identifies, or is likely to identify, that GA is the subject of proceedings; any person as a member of the family of GA; that A Local Authority is a party; and where GA lives. The content of video-recordings which relates to these proceedings is controlled by s.12(1)(b) of the Administration of Justice Act 1960 and may not be published unless publication falls withinthe exceptions contained in Practice Direction 4A, paragraphs 33 to 37.

The court endorsed the definition of ‘publication’ set out by Munby J (as he then was) in re B [2004] EWCH 411 para 82(iii) as anything the law of defamation would treat as a publication, thus covering most forms of dissemination either oral or written.

Order restricting communication with the court office

TA had been engaged in litigation concerning GA for approximately two years and the nature of his correspondence to the local authority was ‘abusive and inflammatory’ to such an extent that the local authority deemed TA a ‘vexatious complainant’ in March 2019 in line with the Local Government & Social Care Ombudsman’s guidance on managing unreasonable complaint behaviour. The decision was reviewed but ultimately extended until 12 September 2021 as TA refused to accept limits to his behaviour.

By the latter part of 2020, TA’s behaviour had extended to the Court of Protection court office. The Operations Manager noted excessive email traffic generated by TA who copied in ‘100s’ of other recipients, along with excessive telephone calls with abusive comments, primarily directed at the judiciary. Further, TA made 39 COP9 applications over a 24 month period.

TA dismissed the evidence of the Operations Manager, describing the statement as a “badly drafted pathetic attempt at a fraudulent witness statement”. He did not deny the volume of his correspondence but sought to justify it on the basis that HMCTS staff were engaged in a deliberate attempt to pervert the course of justice, in collaboration with the judiciary.

The court found no justification for the volume and nature of the correspondence from TA. It was wholly disproportionate and no doubt a significant distraction for the court staff. The court cited the obiter remarks of King LJ in Agarwala v Agarwala [2016] EWCA Civ 1252 which considered general judicial case management powers to regulate communications with the court to avoid ‘a torrent of informal, unfocussed emails’. Support for this approach was further located in the Court of Appeal’s judgment in Attorney-General v Ebert [2002] 2 All ER 789 where Brooke LJ observed at para 35 that by exercise of the inherent jurisdiction, the court’s supervisory role extends to the regulation of the manner in which the court process may in general be exercised, including the power to restrain litigants from wasting the time of court staff and disturbing the orderly conduct of court processes in ‘completely obsessive pursuit of their own litigation’.

The court therefore proposed to make the ‘exceptional’ order of restraining TA from communicating with the court office by email and telephone. TA could continue to send letters if necessary, but he could not expect a response if his correspondence was abusive. While Brooke LJ contemplated the exercise of the inherent jurisdiction, the court proposed to rely on section 47(1) Mental Capacity Act 2005.

A penal notice was attached to the injunction.

Giving up a baby for adoption – what if the dad doesn’t know?

The vast majority of adoptions in England and Wales are ‘non-consensual’ or ‘forced’ i.e. the parents did not agree this was the right thing for their child. Adoption is famously the last resort – ‘when nothing else will do’ and parents are given every opportunity to argue for some other outcome.

There remain however cases where mothers want to give up their babies at birth – a case of ‘relinquishment’. What happens when the mother has not told the baby’s father, and does not wish to? There can be a variety of reasons for this decision and the court will have to think carefully about what to do. It’s often likely that family secrets cannot be kept over time

Adoption is really important and significant for the child and for other family members. Therefore a mother cannot by herself take a unilateral decision to keep the adoption a secret – the court must ask what the child would think later in life if he or she found out the other relatives weren’t told.

The LA should make an application as soon as possible under Part 19 of the Family Procedure Rules for the court to determine if attempts should be made to identify the father or other family members and assess them as prospective carers.

The recent case of A, B And C (Adoption: Notification of Fathers And Relatives) [2020] EWCA Civ 41 (29 January 2020) examined the relevant principles. The Court of Appeal heard appeals from three separate cases, commenting:

For social workers and courts these are not easy decisions. They have to be made without delay, on incomplete information, and in the knowledge of the profound consequences for everyone concerned. The law aims to distinguish those cases where a ‘fast-track’ adoption without notification of relatives is lawful from the majority of cases where the profound significance of the decision for the child demands that any realistic alternatives to adoption are given proper consideration. But in the end each case is unique and the outcome must depend on the facts.

The court must first establish the facts as clearly as possible, which is not always easy when the available information inevitably going to be one sided. Once the facts have been investigated the court has to strike a balance between the various issues. The child’s welfare is important but NOT paramount, as is the case in other decisions about the child’s upbringing.

Para 87 of the judgment sets out agreed ‘best practice’ guidance about the extent and nature of the inquiries the LA should make when a parent wishes to relinquish a baby for adoption.

It isn’t possible to devise a ‘test’ to decide who gets notified but the relevant case law shows that the following factors are likely to be relevant. This list is of course, not exhaustive – every case is different.

If the father has parental responsibility for the child, he is automatically a party to the proceedings and very compelling reasons are needed to say that he can’t be told about the plans for adoption
If the father or other relatives have an established family life with the mother or child then their Article 8 rights are engaged, and again very good reasons will be needed not to tell them.
The court must look at the substance of the relationship between the parents and the significance of the relatives. For example – were the parents in a long relationship? Or more fleeting? Was the child conceived in circumstances where the mother did not give consent?
Is a family placement a realistic alternative to adoption? If a family placement isn’t likely to be worth investigating or notification may cause significant harm, this operates in favour of maintaining confidentiality.
the impact on the mother or others – if the child was conceived as a result of a rape then there could be very serious consequences. But excessive weight shouldn’t be given to short term difficulties of embarrassment or ‘social unpleasantness’.
Cultural and religious factors – these could increase the risks of notification but also under pin the importance of the child being in a family placement.
Does the court know who the father/family members are? Notification can only take place if there is someone to notify. It is difficult to see how a mother can be forced to give up this information if she refuses. But in some cases it maybe worth trying to find out.
The impact of delay – investigation of other family members will inevitably take time and the court needs to consider what impact that might have on the child, such as losing a particularly suitable adoptive placement.

Reasons given not to inform the father

Mother A

She has a history of depression for which she takes medication and did not feel physically or emotionally capable of caring for him.
The father has also suffered with mental health issues.
She had terminated two previous pregnancies, both by A’s father, with his agreement.
He would agree with the decision for A to be adopted as he would not want to be involved in the child’s life.
Her own mother would agree with the decision to adopt A. She too has mental health issues and her brother has learning difficulties. Other maternal family members are too old to care for A.

Mother B

If she cannot look after B herself, she would rather she was adopted than be placed in the care of her family, so that B should not experience the abuse she herself suffered.
She is scared of her family’s reaction if they found out that she had a child outside wedlock with someone of a difference race and cultural heritage.
The family would therefore be unlikely to respond positively to being told of B’s existence, and it would cause them needless upset and distress.
An assessment of her family would be likely to be negative and little benefit would be gained.
The father (the first man so named) did not want to play any part in the baby’s life and even booked a termination for the mother. He was violent towards her while she was pregnant. He is involved with drugs and gangs and is currently serving a long prison sentence. She is scared of what he would do if she shared information about him with the local authority.

Mother C – who said her child had been conceived by rape

Caring for C would remind her of the rapes.
She and the father have an unconventional relationship. Although they are married he works away, was infrequently at home and rarely provided care for the children. They permanently separated in September 2018, following the rapes, but the father visits the home to see the children.
The father has a bad temper and on one occasion punched and damaged a door. He has been intimidating and controlling. She is scared that he would assault her if he found out that she had kept C’s birth a secret.
He would humiliate her by informing members of the local community. She would then have to leave the area with all her children.
He would not be willing or able to care for C.
There is no other maternal or paternal family member who would be willing or able to care for C.

The Court decided that other relatives must be told in all cases – despite the very distressing circumstances of C’s conception, her father had parental responsibility for her. This indicates that very serious reasons are necessary to justify not informing other relatives – the mother’s desire not to tell anyone is important, but it can rarely be determinative.

Assessing Risk of Harm to Children and Parents in Private Law cases.

Final Report of the Ministry of Justice 2020

In May 2019 a ‘3 month inquiry’ into issues of domestic abuse and applications to court about children, was announced by the Ministry of Justice. I expressed considerable scepticism at the time, not least scoffing about the wholly unrealistic timescales proposed.

In that at least I can see I was correct. The final report was published at the end of June 2020 so a 13 month process. Even that seems astonishingly quick to me. It is without doubt an impressive piece of work, covering a great deal of important and necessary conversations about the family justice system. All practitioners need to read it, digest it and think about it carefully .

I will not pretend that I am about to unpick it line by line. But I thought it might be interesting or helpful to share my immediate concerns.

In May 2019 I said this about the real problems facing the family court system:

Family courts are not the arenas for frightened or angry people. An adversarial court system that requires proof is a hard place to be for those who believe themselves to be or who actually are victims of violence.
I quite accept that most of us entering into a relationship do not at the outset start gathering evidence of our partner’s appalling behaviour. One of the real evils of coercively controlling relationships is the very long time it can take to work out what is going on and to gather the resources and courage to leave.
There appears to be widespread public ignorance about how the forensic process operates and how you prove an allegation in court. That is not anyone’s ‘fault’ but it is a great shame more people are not prepared to accept their lack of understanding before diving into the debate.
But the elephant in the room is the removal of resources. Social workers and Cafcass need time and space to conduct investigations, to thoughtfully reflect, and to build relationships with parents. Courts dealing with private law disputes need to offer judicial continuity and swift fact-finding hearings – which currently doesn’t happen because we don’t have enough judges or courts.
The removal of legal aid from private law family cases has led to a huge rise in the number of litigants in person, with obvious and serious problems for how cases are managed. This removal was endorsed by Parliament in 2012 with the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012.
Research by Citizens Advice in 2015 stated what we all know to be true: “Restricted access to legal aid is one of the biggest barriers to support for victims of domestic abuse in England. In their work helping victims of domestic abuse, only 12% of advisers reported being unaffected by the changes that came into force from April 2013.

The aim of the report is to provide an understanding of how effectively the family courts identify and respond to allegations of domestic abuse and other serious offences, in cases involving disputes between parents about the arrangements for their children. These are known as ‘private law children proceedings’ because they are a dispute between private individuals and not any agency of the State.

The report sets out its summary and recommendations. The expert panel received ‘over 1,200 responses’ from individuals and organisations and held roundtables. The evidence focused on domestic abuse.

The report noted key themes

Resource constraints; resources available have been inadequate to keep up with increasing demand in private law children proceedings, and more parties are coming to court unrepresented.
The pro-contact culture; respondents felt that courts placed undue priority on ensuring contact with the non-resident parent, which resulted in systemic minimisation of allegations of domestic abuse.
Working in silos; submissions highlighted differences in approaches and culture between criminal justice, child protection (public law) and private law children proceedings, and lack of communication and coordination between family courts and other courts and agencies working with families, which led to contradictory decisions and confusion.
An adversarial system; with parents placed in opposition on what is often not a level playing field in cases involving domestic abuse, child sexual abuse and self- representation, with little or no involvement of the child.

I agree with much of this. But there are some things summarised there and discussed in greater detail in the body of the report which I find frankly surprising in any document co-produced with a number of senior laywers.

Pro contact culture and other curious statements

The Panel say this about pro-contact culture

Previous literature has identified the ‘pro-contact culture’ of the family courts and we have adopted this terminology as appropriate to capture the systemic and deep-seated nature of the courts’ commitment to maintaining contact between children and non-resident parents. A ‘culture’ describes the particular set of beliefs and behaviours (sometimes unconscious or taken-for-granted) of a group of people. Most institutions develop a distinctive culture over time, and the family courts are no exception. This does not mean that all members of the institution necessarily agree with or conform to all aspects of the culture. But it does mean that there is a strong pressure to conform, and that cultural change does not happen easily. ‘

The pro-contact culture’ is not some whimsy or consequence of submission to the patriarchy. It is the law. It has long been the law. It is enforced in various decisions of the European Court. I do not understand why the law is reframed here in clearly pejorative terms as a ‘culture’ .

Children have a right to a relationship with both parents, so long as they are safe. I agree however, that a system starved on resources and which operates on an adversarial platform may end up giving a crude prominence to the presumption that contact is in a child’s best interest.

I also reject and am astonished to see this comment about liaison with the criminal justice system:

Silo working can result in evidence of abuse accepted in one system, for example the criminal courts, not being acknowledged or effectively engaged with in the family court.

Police disclosure and findings of the criminal courts are vital pieces of evidence and never overlooked in any case where I am instructed. Of course, getting the information from the police quickly is another matter. Again an area where lack of resources make it very difficult for the family court system to do its job.

The Panel comments:

Many respondents reported that regardless of the particular circumstances, even where the most serious allegations of domestic abuse were raised, courts expected that parents would work together to facilitate contact arrangements.

Raising an allegation is not the same as proving it. Where serious allegations are made the court needs to determine them by way of a finding of fact. I accept, and this has been known for some time, that early findings of fact are often essential. An assertion of something another does not accept and which has not already been proved, is not a fact and never can be ‘a fact’.

We can ‘raise’ whatever allegations we like. To ask allegations to impact on the proceeses of a legal system they have to be proven. I am very surprised and uneasy to read a phrase like this in a document produced by the Ministry of Justice.

The value of self selective lived experience.

This is without doubt my key concern. I am worried that what I feared has come to pass. There was no scrutiny of the reliability of the accounts given to the Panel and yet such indivudal accounts represented the vast majority of responses to it. 87% of responses ‘in scope’ were from individuals with personal experience of private law children proceedings – mainly mothers and their families.

The report makes it clear the Panel ‘were unable to review individual case files’. But reliance on evidence from an entirely self selecting group apparently causes little concern as this was ‘supplemented with a literature review and a review of relevant case law.’ So I am not quite sure what the Panel mean when they later say ‘In practice, the large number of responses meant that the panel needed an extra six months to ensure that the evidence could be thoroughly analysed and reviewed’.

What exactly were they reviewing? Seeing case law and ‘literature’ through the lens of ‘lived experience’ that you accept as true without investigation sounds to me suspiciously like the seeds of a self fulfilling prophecy.

It is clear the responses from the lawyers were different to the responses from the mothers:

Submissions from legal professionals described their experience in cases involving abuse which varied in persistence and severity, whereas most mothers described relatively severe and sustained abuse, almost invariably involving coercive control.

No question appears to be raised as to why the lawyers saw things so differently. I think it is very important to robustly test assertions which are so serious. Such as this –

Respondents felt that orders made by the court had enabled the continued control of children and adult victims of domestic abuse by alleged abusers, as well as the continued abuse of victims and children. Many submissions detailed the long-term impacts of this abuse manifesting in physical, emotional, psychological, financial and educational harm and harm to children’s current and future relationships.
Many respondents felt that the level of abuse they and their children experienced worsened following proceedings in the family court. There were concerns that efforts to report continuing abuse were treated dismissively by criminal justice and child welfare agencies because of the family court orders. Many respondents also highlighted the negative impacts felt by children who were compelled to have contact with abusive parents, and the burden placed on mothers and children to comply with contact orders compared to minimal expectations on perpetrators of abuse to change their behaviour.

Again, there seems to be no attempt to clarify the nature and status of the alleged victims and perpetrators. Were the ‘perpetrators’ referred to here FOUND TO BE SO in either a criminal or civil court? Or are we back in territory of allegations being raised? I have never known a case where a person found to have perpetrated serious abuse was simply left to get on with it and unsupervised contact ordered.

But I have experienced many cases where fathers never had direct contact with their children again after allegations raised about their behaviour by the children’s rmothers.

The Panel does recognise the limitations of its approach, but concludes that it doesn’t impact their ability to make robust recommednations

Nor can we tell how representative the submissions are of all court users and professionals. As with all inquiries, the individual and organisational submissions and engagement in the data gathering process were voluntary. There is therefore likely to be some selection bias. Individuals who are largely satisfied with the process and outcomes in the family courts may have less incentive to provide evidence. Similarly, professionals who work in the system may have more incentive to defend how the system operates.
Nor can we test the accuracy and completeness of the accounts given. It is not possible to have an ‘objective’ account of what occurred in each case. Qualitative evidence presents the perceptions and views of individuals and organisations that respond. These views will be influenced by the attitudes, cultural context, organisational culture, specific role in the proceedings and individual biases of those providing evidence. They can also be subject to recall bias. The panel was well aware that submissions can be based on misunderstandings, misapprehensions or deliberate distortion as well as wishful thinking.
Despite these inherent limitations, we are persuaded that the evidence gathered does identify systemic problems with how family courts deal with domestic abuse cases and cases raising other risks of harm in private law children cases. It is unlikely that the panel has managed to uncover only isolated mistakes or rare events. The evidence does point to issues affecting multiple cases across the system and with potentially serious effects, although we were also able to identify instances of good practice.

I think this is powerfully naïve. I am particularly concerned by this comment:

…majority with detailed descriptions that appeared to provide authentic accounts of individual experiences.

‘Appeared to provide’ just isn’t good enough when it is used to scaffold the following comments. This has never been my experience in any private law case over 20 years.

Many respondents argued that in ordering direct contact in the majority of cases, the court ignores, dismisses and systematically minimises allegations of domestic abuse and simply treats the case as if domestic abuse was of no continuing relevance. Too often, even where findings of domestic abuse are made, the submissions suggest that victims are told to ‘move on’ and to progress contact, even though the perpetrator has shown no or minimal effort to accept or engage with the findings made against them. Thus, the victim is left with the responsibility of ensuring that contact takes place, including liaison with the abuser, and sometimes against the expressed wishes of the child.

We can see how this is being interpreted beyond the Ministry of Justice and how the Panel’s willingness to accept the unverified accounts of Respondents may now play out.

“The Court Said” has already launched a petition. This is an organisation supported by a number of women with ‘personal’ experiences of the family court system. Two of these women are Samantha Baldwin and Victoria Haigh, both subject to serious findings in the family court about the harm they inflicted on their children and both enthusiastic self identified victims of the family court.

A self identifying ‘journalist’ Richard Carvath who also supports the Court Said has just been convicted of harassment due to his campaigning against the family courts which he believes is justified because of the ‘detailed’ accounts given to him of injustice.

It is or should be abundantly clear that ‘personal’ experiences do not provide the whole story. And that those with axes to grind need to be treated with polite scepticism.

If the accounts of the Respondents to the Panel are simply accepted, its clear what The Court Said wants to happen now. I quote from the petition.

The government needs to launch an immediate case review and a mechanism for recourse for victims affected by the crisis. Thousands of children have been removed unlawfully from victims of Domestic Abuse with no prospect of reversing the situation. Many more thousands are living in fear with unsafe Court decisions impacting families dealing with a Domestic Abuser. Without recourse, this will continue.
The report publishes the harms endured by survivor families in the Family Court system. It is time to right the wrongs and provide compensation for victims, whose lives, families and futures have been forever marked, or even destroyed by an unsafe decision in the Family Court.
We call upon the government urgently to immediately review all cases that have gone before the proposed reforms, and the ones that will suffer during the transition to reform. We call upon the government to reverse decisions where possible and provide compensation to those affected by the crisis. #thecourtsaid

Conclusion

The Panel Report sets out a lengthy list of recommendations and hopes, some of which sound sensible, some a little more optimistic – the Panel should probably have considered a little more carefully the impact of the ECHR on their recommendation to end a presumption of parental involvement for e.g.

But no one could argue in good faith with efforts to make sure that the wishes and feelings of children are properly heard and they are not put under pressure by either parent to toe any particular line.

But I am afraid I cannot read something like this without a hollow laugh

The panel hopes that its recommendations will empower judges, lawyers, Cafcass, Cafcass Cymru and other family justice professionals to work to their best potential in private law children’s proceedings, and above all, that its recommendations will benefit children and parents experiencing domestic abuse.

If parents in the system don’t have lawyers, if there is no where in the court bulding to sit and talk, let alone wait in safety, if CAFCASS don’t get the time and resources they need to do their job properly, if anyone’s account is simply accepted without challenge, all of this is meaningless.

Resources are rightly identified in this report as a major stumbling block to any effective change and I agree wholeheartedly with this

The panel believes that the shortage of resource affects the whole system, but is most concerning for domestic abuse cases, which are likely to be more resource-intensive to address than non-abuse cases. Safeguarding requires time and resources to do a detailed and careful risk-assessment; the need for special measures requires adequate court facilities; fact-finding hearings require additional judicial time; and additional interventions may be required to make any child arrangements safe. This all costs money. The scarcity of resources mean that the system finds it difficult to address the additional demands presented by domestic abuse cases:

So what will be done about that?

Nothing. No doubt any spare cash in the system will now go to setting up further serious case reviews as is urged by ‘The Court Said’. This seems to be how we roll now as a nation.

I hope I am wrong. But I doubt I am. Let’s meet in a year’s time and see what came to pass.

EDIT July 4th 2020. The Government’s plans to implement its reforms are set out here. Their plan seems to involve yet another pilot scheme.

I do hate being right all the time.

Vaccination of children; how does the Family Court handle disputes?

This is a post by Sarah Phillimore

This post considers how the court should deal with disputes between those who have parental responsibility, about whether or not a child should be vaccinated. Vaccines are routinely administered in England; see Public Health England’s guidance in ‘The Green Book: Information for public health professionals on immunisations’. Despite the routine nature of vaccination, there remains a significant minority of those who object, some fearing that vaccines cause harm. The Court of Appeal however has given a very clear ruling that there is no medical evidence to support an argument that these routine childhood vaccines are harmful, and that local authorities do not need to seek the approval of the High Court before agreeing to vaccinate children in their care.

In February 2020 there was a decision in care proceedings about parents who objected to their child being vaccinated, which can be found at [2020] EWHC 220 (Fam). The Judge commented that the father was “driven by the fundamental belief that neither the court nor the State, through the arm of the Local Authority has any jurisdiction to take decisions in relation to his children”.

The Judge heard medical evidence about the benefits of immunisation in general and in particular with regard to the child before him. He found that vaccination should not be characterised as ‘medical treatment’ but rather ‘a facet of public preventative health care intending to protect both individual children and society more generally’.

The Judge was satisfied that the local authority could authorise the vaccination of the child under section 33(3) of the Children Act 1989. This is significant, as previous cases (see Re SL (Permission to Vaccinate) [2017] EWHC 125 ) had set out that this issue had to be decided using the ‘inherent jurisdiction’ of the court – a jurisdiction which can only be exercised by the High Court or by Circuit Judges with special authorisation. This has the potential to take more time and cost more money to get a decision.

Therefore the Judge felt it appropriate to allow his decision to be appealed pursuant to the Family Procedure Rules 30.3(7) – ‘contradictory decisions on the substantive issue’

By the time the matter got to the Court of Appeal, no one was arguing that the child should NOT be vaccinated but everyone wanted clarity about what route people needed to use in any future cases like this.

Judgment was handed down on 22nd May 2020 in H (A Child Parental Responsibility : Vaccination) [2020] EWCA Civ 664

Is vaccination a ‘grave and serious’ matter?

The Court of Appeal decided that in order to make the right decision about the route to take, it was necessary to consider some broader questions, and in particular whether or not vaccination is to be considered ‘a grave or serious matter’ or should be regarded as ‘medical treatment’.

These questions also had to be considered in two different contexts: ‘public law’ proceedings (where the local authority shares parental responsibility with the parents) and ‘private law’ proceedings (where only individuals such as the mother and father share PR).

As a general principle, the State should be slow to interfere with how parents exercise their rights and duties with regard to their children and respect their right to do so, provided that they don’t put the child at risk of significant harm.

Giving consent to having a child vaccinated is clearly an exercise of parental responsibility. Most consider the decision to vaccinate ‘reasonable and responsible’. However it is not a legal requirement. Therefore a refusal to vaccinate your child and nothing else would be very unlikely to be considered ‘significant harm’ to the extent that the State could interfere and apply for a care order under section 31(3) of the Children Act.

The child in the care of the local authority

The starting point for a child in local authority care is section 33 of the Children Act 1989. This gives the LA parental responsibility alongside the parents and the power to ‘override’ the parents provided that what it proposes is necessary to safeguard the welfare of the child. The LA cannot however change a child’s religion or name, or take the child out of the country using this section.

This applies to ‘interim’ and ‘final’ care orders. However, when decisions ‘with profound or enduring consequences’ needed to be made – such as serious medical treatment – the general view is that it was not right for the LA to use section 33 to override a parent’s wishes without further scrutiny – the matter needed to come before the High Court to be resolved.

So – is consenting to vaccination something that a LA can do without the High Court’s permission? Or is this ‘serious medical treatment’?

Medical evidence about the benefit of vaccines is clear

The Court of Appeal first examined the current established medical view – routine vaccination of children is not only in the best interests of the children but also the general public.

The Court of Appeal acknowledged that most – but not all – of the concerns about the safety of vaccinations relate to the MMR vaccination. This was introduced in 1988. Concerns arose that there was a link between the MMR vaccine and autism following the publication of a paper in The Lancet by Dr Andrew Wakefield. This attracted widespread publicity and caused a drastic reduction in MMR vaccination rates and corresponding increase in cases of measles. It then transpired that Dr Wakefield had not declared a number of conflicting interests and by 2004, 10 of the 12 co-authors of the 1998 paper had withdrawn their support for the claimed link with autism.

Dr Wakefield was then investigated by the General Medical Council for misconduct and in May 2010 he was struck off the medical register and The Lancet formally retracted his paper. No mainstream medical opinion now accepts a link between vaccination and autism.

The Court of Appeal accepted that the medical evidence:

overwhelmingly identifies the benefits to a child of being vaccinated as part of the public health initiative to drive down the incidence of serious childhood and other diseases.

The Court of Appeal were very clear that this short recitation of such historical events was necessary to ‘bring an end’ to the parade of expert witnesses in cases involving vaccination, to demonstrate its medical benefits, unless a child has ‘an unusual medical history’ – see for example in Re C and F (Children) [2003] EWHC 1376 (Fam).

There could be other issues than purely medical over vaccinations which impact on a child’s welfare – for example the parent’s religious belief – but the Court of Appeal have decisively put to bed any lingering doubts about the medical benefits of vaccination.

Regardless of benefit – are vaccines ‘serious medical treatment’?

Regardless of its medical benefit, were the parents right to say that only the High Court could resolve a dispute between parents and a local authority? There have sadly been very many cases where care proceedings and complex medical treatment intertwine and the High Court has been asked to intervene.

The most difficult and controversial cases have been where care proceedings were used to bring parents before the court over disputes about medical treatment where the parents are otherwise ‘unimpeachable’. The Court of Appeal did not approve of this. The more usual route in cases of dispute over serious medical treatment, is via the NHS Trust responsible for treating a child applying to invoke the court’s inherent jurisdiction. in such applications, there is no need to discuss threshold criteria or ‘blame’ the parents and the sole criterion is the welfare of the child.

The Court of Appeal acknowledged that some previous cases could be interpreted as denying that the LA had the power to authorise ANY medical treatment. But, if that was the correct interpretation – then those cases got it wrong.

The Court of Appeal then turned to examine how vaccination cases in particular had been dealt with by the courts. It was noted that in a previous case the hearing had lasted two weeks with extensive medical evidence and a judgment of 370 pages which concluded that it was in the best interests of the healthy children to be vaccinated. That decision was appealed and the appeal dismissed. See In Re C (Welfare of Child: Immunisation) [2003] EWCA Civ 1148; [2003] 2 FLR 1095) However, further cases continued to hear extensive expert evidence.

The Court of Appeal stated that by the 2010 at the very latest, there has been no evidential basis for suggesting a link between MMR and autism and other vaccines which are routinely given to children have not been subject to the same high profile concerns about their safety.

The Court of Appeal did not think it mattered to call vaccinations ‘medical treatment’ or ‘preventative health care’ – what mattered is whether vaccinations were ‘grave’ and ‘serious’ in the context of the exercise of PR by a local authority. This was soundly rejected:

I cannot agree that the giving of a vaccination is a grave issue (regardless of whether it is described as medical treatment or not). In my judgment it cannot be said that the vaccination of children under the UK public health programme is in itself a ‘grave’ issue in circumstances where there is no contra-indication in relation to the child in question and when the alleged link between MMR and autism has been definitively disproved.

Cases involving disputes between parents

The route for parents who cannot agree about vaccination is to apply for a Specific Issue Order under section 8 of the Children Act 1989 – see Thorpe LJ in Re C (Immunisations) at paragraph [17] where in 2003 he expressed the view that immunisations were part of a ‘small group of important decisions’ where if those with PR could not agree, it should come before the court. The Court of Appeal wondered if now in 2020 this could still hold good given that all evidence unequivocally supports the recommendation of Public Health England that vaccinations benefit children and the wider society. However, the Court of Appeal declined to offer a definite view about this.

However, the reality is that if parents can’t agree in discussion or more formal mediation, neither has primacy over the other and they have no option but to come to court for resolution.

This is very different to the situation where a care order exists, as in that situation Parliament has given the LA the power to override a parent unless its a decision of such magnitude that it must come before the High Court.

Warning to local authorities

However, the Court of Appeal sounded a note of caution, warning the local authority that it must involve parents in decision making and section 33 CA 1989 was not an invitation to ‘ride rough shod’ over parents. If the parents do not agree with the the LA decision to consent to vaccination, they can make an application to invoke the inherent jurisdiction and apply for an injunction under the Human Rights Act 1998 to prevent vaccination before the matter comes before the court.

The Court of Appeal decision does not in any way diminish the importance of parental views where there is a real issue about what decision will promote a child’s welfare. However, the weight to be given any objection is not decided by how insistently it is made, but according to what substance it has.

The pressure on the family justice system is already serious enough without devoting weeks of High Court time to reinventing the vaccination wheel.

Remote hearings and the impact for family justice

Two week rapid consultation on remote hearings in the family court now launched. https://t.co/9h5JltW25s
This whole debate has shone an interesting light on what we, as a society, think the courts are FOR.
— Sarah Phillimore (@SVPhillimore) April 14, 2020

This is a post by Sarah Phillimore. The Nuffield consultation is open until April 28th 2020, so please comment.

At the time of writing – April 17th – the UK is in its 3rd week of ‘lockdown’ in response to the global pandemic and efforts to reduce the spread of COVID 19. Courts have been operating remotely for a number of weeks now and some of the initial problems and panic have been ironed out. However, there are still some worries, in particular how this is impacting on lay clients. Many parents in care proceedings already face serious disadvantages in terms of ready access to technology or even a quiet and safe space in which to sit to engage in a remote hearing.

This is an issue of significance and importance – Tortoise Media organised a digital ‘ThinkIn’ for the Nuffield Family Justice Observatory.

Polly Curtis of Tortoise commented

Under lockdown there has been an 800% increase in court hearings being conducted by telephone or video call. The Nuffield Family Justice Observatory has been asked by the President of the Family Division to conduct a rapid consultation on the use of remote hearings in the family courts to inform future guidance. Join us to share your experiences: What has worked well? Do you have concerns? What improvements could be made?

What has worked well?

My experience is still quite limited; I have done a number of directions hearings where everything was more or less agreed; I haven’t yet cross examined anyone as the contested hearings lined up in my diary have fallen away. But for those hearings where the issues were limited and well known, where there wasn’t a need to put questions to a lay witness or navigate a massive bundle, it seemed to go ok. It was great not to have to travel hours to and from court for a 20 minute hearing, and the platforms I have used – Zoom and Skype for business – appeared to work reasonably well, apart from one complete and inexplicable failure of my microphone (and yes, I HAD unmuted).

Do you have concerns?

Yes. Although I haven’t yet conducted a contested hearing remotely, my experiences so far make me doubtful that its going to be as easy or as straightforward as some make out.

The significant problem in many family cases is going to be the inherent vulnerability of the lay clients. When meeting in person in court, we can talk, I can reassure, I can explain, I can see or be told immediately if my client is getting distressed or needs a break. All of this is gone with remote working. During one hearing I was taking client’s instructions via What’s App while trying to listen to the submissions of my opponents and formulate my own response. Yes, this is what happens in court hearings that are not remote – an important skill as a trial lawyer is being able to deal with client’s scribbled or whispered instructions while trying to follow the arguments of your opponent.

But there was something very draining about the remote experience that made it ten times more exhausting. That particular hearing lasted no more than 2 hours. I felt afterwards as if I had an entire day in court. I don’t yet know if this is because I am new to the experience and finding it stressful or whether a remote hearing does strip away some essential elements of good communication and that this extra effort will remain a feature of such work.

What improvements could be made?

Bizarrely, I thought I would be most concerned about technology and its availability, but my three week immersion in this new world has flagged up other difficulties I had not anticipated. From my experience what I would like to see most urgently is an end to the almost incessant flow of ‘guidance’ or comments about ‘guidance’. I appreciate that everyone is doing their best and this is for some people a way to cope with uncertainty. I also hope its an inevitable product of this brand new and very rapid change to all our circumstances.

But its oppressive, its confusing and instead of making sure that it directs people to consider what is important, I think it risks having the opposite effect – the more people expect ‘guidance’ to give them the answers, the less they tend to think about the case in front of them.

I think we need to keep first principles in mind

The child’s welfare is paramount
Delay should only be permitted if planned and purposeful BUT
Hearings must be fair – and there is often a lot to unpack in that one

I am supported in this analysis by para 24 of the President’s judgment in P – see link below in Further Reading

The decision whether to hold a remote hearing in a contested case involving the welfare of a child is a particularly difficult one for a court to resolve. A range of factors are likely to be in play, each potentially compelling but also potentially at odds with each other. The need to maintain a hearing in order to avoid delay and to resolve issues for a child in order for her life to move forward is likely to be a most powerful consideration in many cases, but it may be at odds with the need for the very resolution of that issue to be undertaken in a thorough, forensically sound, fair, just and proportionate manner. The decision to proceed or not may not turn on the category of case or seriousness of the decision, but upon other factors that are idiosyncratic of the particular case itself, such as the local facilities, the available technology, the personalities and expectations of the key family members and, in these early days, the experience of the judge or magistrates in remote working. It is because no two cases may be the same that the decision on remote hearings has been left to the individual judge in each case, rather than making it the subject of binding national guidance.

There is often tension between all those principles But every family case offers a huge array of different circumstances which need to be weighed and considered. One final hearing of mine was adjourned for a variety of reasons, not all to do with the remoteness of the hearing – but it was clear that remoteness weighed more heavily on considerations about the parent’s need for assistance to understand and participate in the proceedings. While hearings remain remote we need to be focused much more clearly on the impact of this on the lay client and whether they can participate in a meaningful way.

The Guidance from MacDonald J (see further reading below) is detailed and impressive and begins with the reminder from the President of the Family Division that we must not lose sight of the ‘primary purpose’ of the family court – to deal with cases justly. The Guidance offers a particularly pertinent example of a Court of Protection case that the Judge, journalists and lawyers all felt went very well indeed – but the lay person had a very different experience.

It all, in the end, comes down to what we think our courts are for. If the aim is to get the slickest and most efficient system up and running, then remote working offers a lot of advantages. But I hope most would agree that process should not be elevated above the people who must suffer that process.

It will be interesting to see how the Digital Courts develop when (if) we are ever out of lockdown. I can see ways that technology can be used to great effect and one positive at least from all of this is we will have speeded up immensely our willingness to embrace remote working.

Some really useful tips for lawyers about making the process of remote hearings more efficient.

Can we have similar level of detailed discussion directed at lay clients who may have no access such technology. How do they participate? https://t.co/lO8sDVQ9aZ
— Sarah Phillimore (@SVPhillimore) April 15, 2020

Journalists in family courts – what can they report and can you keep them out?

This is a post by Sarah Phillimore

I have written generally on the issue of media reporting from family cases and also of my growing disenchantment with the ability or even the will of many journalists to report fairly and accurately, even with the information right in front of them. I had always naively thought that journalists investigated what was actually happening and reported on that – but that naivety cannot survive the reality that too many now appear to approach the family justice system looking for facts to fit a pre-determined theory.

Andrew Norfolk’s ‘Muslim Foster Carer’ report was one of the more serious examples of journalistic failure in this regard, but there are sadly many others.

However, regardless of what opinion I hold of journalists, its clear that the issue of greater transparency in the family courts and what can be reported about what happens there, is not going away; and nor should it. It is right that we are able as a society to understand the mechanisms of such an important element of it. I agree that people and organisations that go unchallenged have serious potential to fall into some very bad habits indeed.

I do however remain uneasy that the present push to simply make more information available is not the way to go about it; not without some greater reassurance that those trusted with the information will use it to inform debate rather than stoke up the fires of their own particular prejudice. Because the huge problem with this is that they want to use actual, identifiable families and children as their kindling.

We have to be willing to weigh the rights of parents and children to keep their painful private histories private, as against the rights of journalists or bloggers to promote any particular campaign.

So I am going to look in particular at the procedural mechanics of how journalists or legal bloggers may be involved in family proceedings and what you should do if you object to them reporting on your case or even attending your case at all.

At the time of writing (March 30th 2020) the UK is in its second week of ‘lock down’ during the COVID 19 global pandemic so the situation is of course made even more complicated by the prospect of remote court hearings via telephone or video link. Hopefully this situation will resolve in time.

The right of journalists and bloggers to attend court – yes they can.

This is hopefully now NOT controversial. Journalists and legal bloggers have a right to come into a family court. Rule 27.11 of the Family Procedure Rules 2010 allows ‘accredited journalists’ – those holding a UK Press Card – to attend private family hearings. Since October 2018, this rule extends to cover ‘legal bloggers’.

FPR 27 refers to “duly accredited representatives of news gathering and reporting organisations” – I shall use the shorthand term ‘journalist’ throughout.

However, the right to attend hearings does not confer a right to report on proceedings or publish details of proceedings. There is a clear tension between the right of journalists to report about court hearings and the right of the parties – particularly children – to keep probably very sensitive and upsetting material out of the public domain.

See section 12(1) of the Administration of Justice Act 1960 and Children Act 1989, s 97(2). These Acts provide exceptions to the general principle in favour of open justice. The court may also relax or restrict reporting restrictions in appropriate cases using its inherent jurisdiction. These matters are all covered in more detail here.

The guidance of the President of the Family Division, issued on 3rd October 2019, sets out the relevant legal and procedural considerations for the court, where issues arise about extending or limited what can be reported in a family case. As a matter of substantive law, the court will have to carry out a ‘balancing exercise’, with an ‘intense focus’ on the likely competing rights before it. These will probably involve (but are not restricted to) consideration of ECHR Articles 6, 8 and 10 – the right to a fair trial, right to privacy and right to freedom of expression.

The President’s guidance refers to a useful summary of required balancing exercise as set out at paragraph 22 of Re J (A Child) [2013] EWHC 2694 (Fam).

The best interests of any child involved in the proceedings are not ‘paramount’ in this argument, but will be the court’s primary consideration.

If no agreement can be reached, the court should hear submissions and replies, and give a judgment on the application. This doesn’t have to be a ‘full’ judgment but it must contain enough information to allow the parties to understand how the Judge got to his or her conclusions. See Re W [2014] EWCA Civ 1303 at para [49].

I don’t want journalists to report about my hearing. What can I do?

There is a presumption that journalists may attend family court hearings but still clear and significant limitations on what they can report and what documents they can see.

The court has even wider powers – it can exclude journalists from all of part of any hearing entirely – see FPR r 27.11(3). At any stage of the proceedings the court can decide not to allow journalists or other reporters to attend a hearing or part of a hearing if the following test of necessity is met:

in the interests of any child concerned in, or connected with, the proceedings;
for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or
for the orderly conduct of the proceedings; or
justice will otherwise be impeded or prejudiced.

The court can make this decision on its own initiative or after representations by any party, witness, child’s guardian or the child, if of sufficient age and understanding.

What is key however, is that the court must give an opportunity to any member of the press who is present an opportunity to make representations.

So if the journalists have turned up at the hearing, it seems pretty straightforward. You can make your application then and there and everyone is present to hear what is said and respond to it.

However, more significant problems arise if you want to make an application before any hearing has taken place.

But what if I want to exclude journalists before the hearing starts?

Applying to exclude all and any representatives of media organisations is clearly a serious thing and you will need to make that people who want to object, have a proper opportunity to do so. We now need to examine the procedural issues, rather than those of of substantive law and proportionality.

You will need to think carefully about this. Attempting to exclude the press may in fact just alert journalists to your case who otherwise would not have known about it. But if you consider press interest is inevitable and would be harmful, you may need to make an application in advance of the hearing. The Practice Direction 12 I comments that journalists are used to weighing up information in a short period of time so there may be more leeway for less notice to be given – but unless its an emergency you will need to make your application in sufficient time before the hearing.

The President’s Guidance sets out a summary of what you need to do at para 6:

Guidance as to the procedure for applying for RRO’s [Reporting Restrictions Orders] in the Family Division founded upon ECHR Convention rights can be found within FPR 2010, PD 12I and a CAFCASS Practice Note: ‘Applications for Reporting Restrictions Orders’(as updated in 2015). The application must be made in the High Court and notice must be given to the press through the Press Association (‘PA’) Injunction Alert Service [Human Rights Act 1998, s 12(2)].

Section 12 of the HRA is important as it sets out that an injunction restricting the exercise of the right to freedom of expression must not be granted where the person against whom the application is made is neither present nor represented unless the Court is satisfied (a) that the applicant has taken all practical steps to notify the respondent or (b) that there are compelling reasons why the respondent should not be notified.

It is possibly to get an injunction ‘without notice’ but it is clear that the circumstances must be ‘exceptional’ when one is attempting to restrict an Article 10 right. For further discussion see Re X (A Child) (Residence and Contact) ([2009] EWHC 1728 (Fam)).

What is the Press Association Injunction Alert Service?

The Media Lawyer website explains

This service may be used to notify the subscribing media organisations of your intention to apply to the High Court for an injunction which will affect their rights under Article 10 by prohibiting or restricting reporting.

Nearly all the national media organisations have agreed to take part in the notification system.

The notification system

The purpose of the notification system is to provide a simple secure and verifiable method of sending national media organisations notice of proposed applications for injunctions, together with supporting documentation.

The notification system serves all the national media (newspapers and broadcasters) with the exception of the Financial Times and Sky News. If notice has to be served on these two companies it needs to be served on them directly. A list of those companies subscribing to this system and their contact details are at Media Organisations.

Nor does the CopyDirect service extend to local or regional media or magazines. The Practice Note (see below) states: If service of the application on any specific organisation or person not covered is required it should be effected directly. However this note does not expand on how such service is to be effective or what it means by ‘required’.

There is useful discussion from the then President of the Family Division in Re P (Enforced Caesarean: Reporting Restrictions) [2014] 2 FLR 410, FD, at [46]. This is also set out in the Practice Note below.

The President quote from a ‘most helpful note’ sent to his office by Mike Dodd in December 2013, the then legal editor of the Press Association.

“There is a page on the Injunctions Alerts Service website http://www.medialawyer.press.net/courtapplications/mediaorganisations.jsp – which lists the media organisations served, and the relevant telephone numbers, and which states at the top:’The notification system serves all the national media (newspapers and broadcasters) with the exception of the Financial Times and Sky News. If notice has to be served on these two companies it needs to be served on them directly.’
The service was also established on the basis that subscribing organisations would be taken to have been served with an application if notification was sent via the service. The system works as follows: Would-be applicants are supposed to call a number, given in the Practice Note, and speak to the Customer Services staff who deal with the service. They then send the documents, electronically (which is easier) or by fax, to the service. These documents are, if necessary, scanned to be put into electronic form, and are then distributed via e-mail alerts to the national media. Distribution is followed up by calls to each of the subscribing organisations to check that service has been received.

The service does NOT serve orders which have been obtained from the courts (despite the continuing efforts by some law firms to use it for this purpose).

The Media Lawyer site sets out the practical steps:

An applicant (or his solicitor) should telephone the Press Association’s CopyDirect service on a dedicated number – 0870 837 6429 – confirming that he wishes to apply for a reporting restriction order in the Family Division. The documentation identified in paragraph 3 of the Practice Note should then be faxed to 0870 830 6949 or emailed to the email address provided by CopyDirect when the applicant calls the service. Attachments to emails must be in Word format.
CopyDirect will, on receipt of the documentation send via either email or fax the documentation to the subscribing media organisations. CopyDirect will call the media organisations to ensure the material has been received.
CopyDirect will also confirm receipt to the applicant. CopyDirect will maintain records of notifications received and sent, including timings, for a period of three months. Copies can be made available to applicants, if required, for verification.

Operational Hours

Mon-Fri 8am-11pm
Saturday and Sunday 10am-11pm
Christmas Eve 8am-6pm
Christmas Day 9am-6pm
Boxing Day operating hours will be the same as the day on which it falls.
New Years Eve 8am-11pm
New Years Day operating hours will be the same as the day on which it falls.

There are no costs to applicants for this service.

Judges will expect applicants to have filled out the checklist for those applying for injunctions before they entertain an application. The Checklist PDF can be downloaded here

The Practice Direction 12I and Practice Note

The Media Lawyer site also provides a copy of the standard form of order to be adopted when a reporting restriction order is made in the Family Division. This is set out under ‘Further Reading’ below. It is also helpful to include an Explanatory Note . This sets out briefly what the case is about so allows journalists to make an informed decision about whether they want to object to your application or not.

The Practice Direction makes it clear such applications need to be made in the High Court. The other parties should get at least 14 days notice – Practice Direction 12C. The court may extend or shorten this time (see rule 4.1(3)(a)), using its general powers of case management. However, the case of AB in 2019, dealing with an application for reporting restrictions concerning an inquest into the death of a child, says only 3 days is required, relying on the CPR, rather than the FPR.

Methods of service are set out at Part 6 of the CPR – generally personal service, first class post or can be done electronically.

Application and evidence
The application may be a freestanding claim brought under the Part 8 procedure in the Civil Procedure Rules 1998 or it may be made within existing proceedings to which either the CPR or Family Proceedings Rules 2010 apply. I

It may be appropriate to seek a direction under CPR 39.2(4), that the identity of a party or witness should not be disclosed, and for documents to be drafted identifying individuals by initials.

The applicant should prepare

(a) the application/claim form

(b) a witness statement justifying the need for an order

(d) a draft order (see suggested form of this order below) and

(e) an explanatory note (an example of this can be found at the end of the suggested draft order below)

If you don’t have time to get the relevant documents together, the court will probably want you to provide a written statement as soon as you can. Unless the court orders something different, you should provide these documents on request to any person who is affected by the order. See W v H (Family Division: Without Notice Orders) [2001] 2 WLR 253; [2001] 2 FLR 927.

So how do I know who and how to serve?

The process seems relatively straightforward for those news organisations covered by Copy Direct. However, it does NOT cover the Financial Times, Sky News or ‘local or regional media or magazines’ OR legal bloggers.

There seems to be no guidance as to how a litigant in person is supposed to identify these entities and then go on to serve them. It surely cannot be proportionate to suggest that every single regional newspaper needs to be contacted to inform them that an application is going to be made to exclude them from a hearing about which they would almost certainly have had no interest in attending or reporting about.

The Practice Note isn’t much help, simply referring that service of ORDERS should be ‘effected in the usual way’ – the Media Lawyer website gives the addresses of the main news organisations on its site. However, with regard to applications to restrict attendance of journalists NOT subscribing to Copy Direct, it simply states

Appropriate local and regional newspapers and magazines should be served with application notices in the usual way

Again, it is not clear how one is supposed identify an ‘appropriate’ local/regional reporting outlet and how one is then supposed to go on to serve an entity one may not even be aware exists. Nor is it clear at all who or what now comprises ‘legal bloggers’ who may wish to be informed and how they may be contacted.

The LA in the AB case (above) served the media via Copy Direct and also the local papers in their area, which seems sensible – but the information they provided and a very sparse ‘explanatory note’ was criticised by the court.

The Media Lawyer website offers information at

www.willingspress.com

This is a subscriber website detailing comprehensive lists of UK and overseas titles (newspapers and magazines), their contact details and publishers – but at the time of writing, this link does not appear to work.

I can only hope that for litigants in person, so long as they comply with what is set out with regard to the Copy Direct notification service, and inform the Financial Times and Sky News separately, they cannot be criticised for any disproportionate breach of any journalist or legal bloggers Article 10 rights.

I will update this post if I get any better/further information.

The Big Question – does the new law on Domestic Abuse go far enough?

This is a post by Sarah Phillimore

“Thomas More: …And when the last law was down, and the Devil turned around on you–where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast–man’s laws, not God’s–and if you cut them down…d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.”
― Robert Bolt, A Man for All Seasons

On Sunday March 15th 2020 I was happy to accept an invitation to appear on the BBC’s ‘Big Questions’ programme to discuss the new Domestic Abuse Bill.

The other contributors were Michael Lewkowicz of Families need Fathers, Maria Cripps who runs a perpetrator programme in Brighton, Katy Bourne the Sussex Police and Crime Commissioner, Laura Richards founder of Paladin (the National Stalking Advocacy Service), Jo Gough the CEO of RISE UK and Luke Gittos of Spiked online.

I tried to set out my thoughts via Twitter on the train on the way down

On the train to Brighton ready for @bbcbigquestions "Does the new law on domestic abuse go far enough?"

Will be looking at this https://t.co/ConmvSdUMU
— Sarah Phillimore (@SVPhillimore) March 14, 2020

It was an interesting experience but the half an hour we got was no where near long enough to do more than lightly touch on some issues of considerable importance. However, I learned one thing above all which made a lot of things very clear to me for the first time – and that was the extent to which people either do not understand the distinction between the criminal justice system and the family justice system, or (perhaps more alarmingly) do not think it is important.

It was certainly naive of me not to have picked up on this before; as so many of us do I make the mistake of assuming that things which are clear and simple to me, are equally clear and simple to everyone else.

Much of the conversation was dominated by crimes; men who had committed them, how to identify them, how to ensure they did not get further access to their victims via any court system. With that, I entirely agree. Any person who has been convicted of a serious offence of violence against an intimate partner or child should have NO direct access to either without a very robust risk assessment and clear evidence of positive change. It is obviously wrong and harmful to allow such a person to directly cross examine their victim in any court setting. I am glad to see the Domestic Abuse Bill proposes to prohibit this but allow payment from court funds for an advocate to cross examine in those cases where the interests of justice demand it.

I do worry however how that will play out in practice and how long it will take to get the funds and find the advocate. My experiences in trying to find intermediaries do not fill me with optimism that this will be a quick or straightforward process. Nor am I aware from what pool of people these ‘cross examination advocates’ will be drawn nor any rate of pay. To cross examine effectively they will have to prepare thoroughly. Its not a matter of just turning up on the day and reading out a list of questions. Cross examination is a dynamic process where you must be ready to respond to answers you maybe did not expect.

However, this focus on criminal convictions and police intelligence, detracts from what I suspect are the majority of arguments in the civil family court about who spends time with children after a relationship breaks down. Typical of the cases in which I am instructed are a period of reasonably successful co-parenting after the separation, but then contact breaks down and allegations are made. Often each parent makes allegations against the other. Often neither parent has any kind of criminal record or concerns raised with any other agency.

During the debate the statistic that ‘only 1% of father’s are refused contact’ was raised. I don’t know where that comes from. Its not true, so far as I know. I can only assume that someone has bundled up direct AND indirect contact (which can be as little as two cards a year) and called it ‘contact’ – which of course is pretty dishonest. If anyone knows the source of this oft quote statistic, please do let me know. On my own cases I would say a lot more than 1% of fathers end up with no direct contact and no prospect of any direct contact either. And some of these fathers are identified by the court as ‘blameless’.

That this statistic has gained the traction it has – I hear it in many different places – underscores to me how the narrative of (female) ‘victim’ versus (male) ‘perpetrator’ is well established. This has the potential to do real and serious harm. It is fundamental to the rules of natural justice that people are able to challenge allegations made against them, if they do not accept them and if there is no evidence to support them such as a criminal conviction – which cannot be denied. An assumption at the outset that a women is a ‘victim’ has potential to cause great unfairness.

As I said in answer to a question by Nicky Campbell – the main problem with the civil family justice system is structural. What we need are quick and efficient fact finding hearings, judicial continuity and court buildings that can provide separate waiting rooms and other special measures such as screens and video links. What would be great also to have are safe, accessible contact centres so that when allegations are made against a parent, there is another route than simply stopping contact altogether while the court case winds its way though the system. I would like to see a strict time limit of 26 weeks as we have in public law cases and clear willingness to transfer the primary residence of children where possible, once it is clear that the primary carer does not accept a finding of fact and continues to obstruct contact.

.@SVPhillimore "The problem with the family justice system is structural. Thinking a shiny new law will solve the problem, will not solve it. We don't have enough judges or courtrooms, we need the system we've got to be funded." #bbtbq
— The Big Questions (@bbcbigquestions) March 15, 2020

It was sad but not surprising to see that I was instantly misquoted on social media, called ‘vile’ and a ‘disgrace’ for speaking nothing more than the obvious truth. If people genuinely think that pushing a false narrative and shouting down anyone who disagrees with them is a sensible long term strategy, I have some bad news for them. My only worry however is that these single issue campaigning groups appear to have captured a significant portion of the law and policy makers. And that IS a problem. Particularly when in their ranks are a number of women who have already been found by the family courts to have caused significant harm to the children in their care.

Hopefully we can keep talking and seeds can be planted. I have to continue to hope that we all want the same thing – for children to grow up healthy and happy with a relationship with both parents if that is safe for them. But nothing good ever came of denying the truth or bending the law to fit just one narrative. The problem with this debate was encapsulated by its title. Of course the law ‘doesn’t go far enough’. It cannot. Because what many campaigners seem to want is something that goes entirely beyond the law – a system whereby allegations (made by women) are simply believed without challenge. And that cannot be right. And I will continue to speak up against it.

Westminster Legal Policy Forum keynote seminar: Next steps for family law in England and Wales

Next steps for family law in England and Wales – reforming care proceedings, protecting vulnerable users and modernising court procedures

Sarah Phillimore, Barrister, St John’s Chambers
Published on 26th February 2020

11.25 – 12.05 Reforming care proceedings in England and Wales – Special Guardianship Orders, improving standards nationwide and innovative approaches to care

I was very pleased to be asked to speak today, but rather less happy about what I was going to use my five minutes to say. There is clearly information and concern enough about the current operation of the child protection system to fill five days.

So I thought it probably most helpful to set out my general concerns. Because, while all of these articulated identified issues and concerns are important, my worry is that without clarity regarding the underlying narrative of what drives state intervention with families, then much time and energy may be expended on reforms and alternations which do not have the intended consequences.

I will first explain my background and what I say gives me authority to comment in the way I do. I began to specialise in care proceedings around 1999. From 2011, I became increasingly concerned about the poor quality of public debate around these issues; sadly some of it generated by serving members of Parliament. This reached an apex for me in late 2013 with the case of the Italian national Alessandra Pacchieri who was subject to a ‘forced Caesarean’ after suffering a mental health breakdown on a visit to the UK – her child was later adopted. This generated a great deal of media commentary, some more accurate and responsible than others. However, it was clear that the ‘system’ did not cover itself in glory in the handling of this case and the visceral and terrified reactions of a fairly large sector of the public could not simply be ignored.

That prompted me to take more direct action; I set up my website Child Protection Resource Online and I organised over the years 3 multi disciplinary conferences where the aim was to bring together parents and professionals to discuss how the system was – or wasn’t – working.

Therefore for the past six years I have actively attempted to engage in dialogue with a great deal of people who have very varying perspectives on what the child protection system is FOR.

And the key difficulty appears to have emerged, in my view, that we have competing narratives that exist in tension with one another. I will deal with this fairly crudely given time constraints

The first narrative – and this is the one supported by successive governments – is that children are to be ‘rescued’ from neglectful homes, and placed for adoption in ‘warm loving homes’ with parents who will advocate for their children and support them, requiring less state intervention.

The other is that England and Wales are clearly outliers when compared to all other European countries in our willingness to make orders that permanently sever a child’s connection to his birth family. And that insufficient respect – or none at all – is paid to the rights of parents to be supported to care for their children. I see this particularly in cases involving parents with learning disabilities who, unless they have the benefit of supportive families are often simply unable to care for their children.

The narrative you embrace clearly has consequences for the direction of travel of care proceedings.

The example of Special Guardianship Orders is helpful and illustrative. The 26 week timetable together with various judicial warnings about the seriousness of a placement order has, without doubt, lead to SGOs being made on the basis of hope and crossed fingers. It is my view that a Supervision Order should never be attached to a SGO – this is supposed to be an order of permanence where the holder has ‘super PR’. It is simply illogical to suggest that it must be accompanied by a SO ‘to keep an eye on things’. If a SO is required, it suggests to me that the SGO should not be made.

This is in my view a direct consequence of the competing narratives. If we are fully committed to the ‘rescue narrative’ than frankly 26 weeks is far too long for most care proceedings, and as was envisaged by the original framers of the Children Act ,care proceedings could sensibly conclude in a matter of weeks. If however we espouse the need to provide families with more intervention and support then 26 weeks is no where near long enough.

How do we resolve this tension? I do not know. And happily I am not tasked with the very weighty responsibilities that fall upon law and policy makers in this room. But we will certainly not resolve anything if we can’t acknowledge it.

I would like to see greater awareness and discussion of what could be put in place to make care proceedings fairer, more accessible and less brutal for parents. Only this week I was pleased to read about the new assessment centre at Trevi House in Plymouth – if you don’t know about the work of Trevi House then I suggest you find out more. On Tuesday I attended a conference in Birmingham which discussed the success of parent advocacy programmes in the United States and what work was beginning to be done here with regard to use of such programmes and greater involvement of families by way of Family Group Conferences.

So I hope this provides some food for thought and a possible basis for further discussions.

Lived experience is great. But law and policy have to be based on facts. I hope I am wrong about my criticisms of the Family Justice ‘three’ month review and the way in which it has gone about gathering ‘evidence’.

Time, as ever, will tell.

Sarah Phillimore
26th February 2020

Child in need or ‘looked after child’. Why does it matter?

This is a post by Sarah Phillimore.

Teasing out the various issues arising under section 17 and section 20 of the Children Act when it comes to ‘providing accommodation’ and the consequences that flow from that, appears to be yet another example of complicated and confusing statutory provisions which put enormous obstacles in the way of parents being able to understand the process. We must either simplify our laws or increase provision of legal aid.

What happens to children under 16 who need help from the State with somewhere to live?

Mrs Justice Black SA v KCC [2010] EWHC 848 (Admin)

“There are various provisions of the Children Act 1989 apart from s 17(6) which deal with the provision of accommodation by a local authority. Although this is not the first time I have had to consider this aspect of the Act, I continue to have difficulty in understanding how the various provisions fit together, how it was envisaged that the scheme would work in practice and how it was thought that it would enable local authorities and others to ascertain, relatively simply, whether a child is looked after or not…”

The distinction between ‘in need’ and ‘looked after’

A child can be a ‘child in need’ and get help and services under section 17 of the Children Act 1989. Or a child can be a ‘looked after’ child and get help and services under section 22 of the Act.

The distinction between these two is significant. A ‘looked after’ child gets more help, including a duty on the LA to consider offering support even when she is older than 18. A ‘looked after’ child will also experience more intervention from the LA, for example the statute provides that frequent reviews are required.

The Children (Leaving Care) Act 2000 creates new categories of young people entitled to support.

Eligible child – aged 16 or 17 and are currently looked after, either on a care order or accommodated, who has been looked after for a period or periods of 13 weeks since their 14th birthday (this total should include at least one spell of over 4 weeks, but does not include respite). This category defines those who will go on to become Relevant and Former Relevant young people when they cease to be looked after.
Relevant child – Aged 16 or 17 (not yet 18) and have left care, having previously been in the category of Eligible child.

There is a duty to financially support them up to the age of 18. The allowances paid to them should not fall below the level of Income Support or Income Based Job Seekers Allowance.

There is a further category of ‘Former Relevant child’ , being those aged 18 to 25 and who have
left care having previously been Eligible or Relevant, or both. The LA is under a duty to consider the need to financially support them.

A ‘looked after’ child is defined at section 22 of the Children Act 1989 as a child who is under a care order OR IF the accommodation provided is by the LA ‘in the exercise of its functions’

‘Functions’ exclude anything done under section 17, 23B and 24B of the Children Act 1989.

Accommodation is only ‘accommodation’ if it is provided for a continuous period of more than 24 hours.

So what does this mean?

Section 17 imposes a general duty on the LA to safeguard and promote welfare of children in their area. This may include providing accommodation.

Section 23B relates to 16-17 year olds and section 24B relates to those who are at least 16.

Therefore if your accommodation is provided under section 17 you are NOT a ‘looked after’ child. We must then look to sections 20 and 23 of the Children Act 1989 to understand what are the relevant ‘functions’ which decide whether or not a child is ‘looked after’.

Section 20(4) is ‘permissive’ . It does not impose a duty on a local authority to accommodate a child but says that they can do so if they think it would promote the child’s welfare and those with PR consent.

Section 20(1) however is mandatory – so a local authority MUST provide accommodation to a child if there is no one who has parental responsibility for him, or no one who can exercise it.

Section 23 is also mandatory and tells the LA that when they are looking after a child they must provided accommodation and other services. Section 23(2) sets out that accommodation can be provided by placing the child with family or any other suitable person. These people will be considered foster carers (so must be assessed and found suitable to meet regulations around standard of foster care) UNLESS that person is the child’s parent or has PR for the child or a Child Arrangements Order.

Further, section 23(6) sets out the LA ‘looking after a child shall make arrangements to enable him to live with’ a parent or person with PR, or a relative, friend or other person connected with him. The LA must also try to find accommodation near to his home and with other siblings (section 23 (7)).

The drafting of this section, as Mrs Justice Black recognises, is confusing and seems to set up different routes into ‘providing accommodation’.

It’s not the label that matters, its the facts and the legal consequences.

R (on the application of M) v London Borough of Hammersmith and Fulham [2008] UKHL 13 made it clear that if the LA claim to be acting under section 17, a child will still be a looked after child if the circumstances are such that the LA should have gone down the section 20 route.

Difficulty has arisen when a child goes to live with a relative and the LA claim that this is a ‘private’ arrangement and therefore not one that should be described as the LA ‘providing’ accommodation. The court is willing to accept that there may be some cases where a LA could ‘side step’ their duty to accommodate by helping to set up a private fostering arrangement.

Private fostering arrangements are dealt with in section 66 of the CA and cover children who are under 16 and cared for in their own home by someone other than a parent, a person with parental responsibility or a relative. A ‘relative’ is defined under section 105 of the Children Act 1989 as a grandparent, brother, sister, uncle or aunt (whether by blood or marriage) or step-parent.

Has the LA taken a ‘major role’ in making arrangements for the child to be accommodated?

It is a question of fact in every particular case. Where a LA takes a ‘major role’ in making arrangements for a child to be fostered, it is more likely to be considered to be exercising its duties under sections 20 and 23, no matter what it claims is the label to be attached to its actions.

Helpful issues to analyse are likely to be:

is the LA attempting to regulate the terms of the placement? for e.g. having a view about the child’s school or who has contact with the child?
What is the LA saying about providing financial help for the child? A true private arrangement will be between the parents and the proposed carers who must understand that the parents will be providing financial support.

Does it then matter if the LA argues section 23(2) or 23(6)?

The court said ‘no’ in SA v KCC [2010] and set out a simple approach to the statute. If the child falls within section 20(1) – there is no one with PR or no one who can exercise it – then the LA is providing accommodation for the child regardless of whether or not it finds a home with a friend or relative and regardless of whether or not the LA chooses to accommodate a child under section 23(2) or 23(6).

The LA in that case had tried to argue that whenever a child goes to live with a relative under section 23(6) then such children are not ‘provided accommodation’ unless there is care order in place. The court rejected this ‘rigid position’ as being potentially disadvantageous to the child and ignores the ‘enormous variation that there is in the circumstances of children, and their parents and carers’.

What’s in a name? The right of parents to name their child – when can the state interfere?

I was reminded of the case of C (Children) [2016] EWCA Civ 374 at a recent court hearing where the issue arose about the local authority’s duty to register the birth of a child who is subject to a care order. Hopefully that matter will be subject of some further guidance – my argument being that a failure by a parent to register a birth is an abnegation of parental responsibility, not an exercise of it and therefore the local authority ought to be allowed to register after the required 42 days without needing the court’s permission.

However the issue of what name a child should be registered with is of much greater significance and It is clear that any argument between parent and local authority must be subject to over sight by the court. But what gives the local authority the right to have an opinion in the first place? To answer this question requires an examination of what happened in C Children.

How far can the state interfere with a parents wish to register (or not) the birth and name of their baby?

The issue of registering a birth is interesting in the context of care proceedings as there appears to be a view in some quarters that registering a birth makes your baby the ‘property of the state’ and refusing to register means the local authority cannot issue care proceedings. This view has no substance, but of course that doesn’t prevent people from spreading it and believing it.

Registering the birth: the operation of the Birth and Deaths Registration Act 1953

The purpose of the BDRA 1953 is to create a document of public record evidencing all births and deaths in England and Wales. It determines what information is needed to register a child’s brith, who may provide that information and when they must do it. There is no absolute requirement to register a ‘name’ at the same time as the birth, but provision is made in section 13 BDRA 1953 for the registration of a forename following a delay of up to twelve months or for the alteration of a name during the same period of time:

Section 1(2) BDRA 1953 sets out who is qualified to provide the necessary information to the Registrar; these people are known as “qualified informants”: They are the father and mother, the occupier of the house where the child was born, any person present at the birth or any person having charge of the child. These ‘qualified informants’ have 42 days from the date of birth to register it

Section 4 BDRA 1953 provides that where, after the expiration of forty-two days, ‘the birth of the child has, owing to the default of the persons required to give information concerning it, not been registered…’, the Registrar can require any qualified informant to attend at a place appointed by the Registrar to give the required information and to sign the register in the presence of the registrar.

So it seems pretty clear from this that the act of registering a birth is an exercise of parental responsibility but is not restricted to actual parents; the focus here is on the proper registration of the birth so that the child can be recognised and identified in the society into which he is born. It is an administrative requirement, not an illustration of something special and particular for parents.

Naming your child – an issue of fundamental significance

if registering a child’s birth is rightly described as a mere administrative act, it is clear that the choice of name for a child is an act of a very different nature and quality and is likely to be of far more emotional importance to most parents. This exercise of parental responsibility should only be interfered with in exceptional circumstances. As was recognised in C Children at para 40:

One of the first questions asked by friends and relatives following the birth of a child is ‘what is the baby’s name?’ It may be thought that any individual who has had the happy experience of debating with his or her partner possible forenames for their unborn child would be astonished at the proposition that the choice of the name of their child could be regarded as other than their right as the child’s parents, and their first act of parental responsibility. The name given to a child ordinarily evolves over the months of the pregnancy through a bundle of cultural, familial and taste influences. The forename finally chosen forms a critical part of his or her evolving identity….If a baby cannot be brought up by his or her parents, often the forename given to him or her by their mother is the only lasting gift they have from her. It may be the first, and only, act of parental responsibility by his or her mother. It is likely, therefore, to be of infinite value to that child as part of his or her identity….The naming of a child is not however merely a right or privilege, but also a responsibility; people, and particularly children, are capable of great unkindness and often are not accepting of the unusual or bizarre. It does not need expert evidence or academic research to appreciate that a name which attracts ridicule, teasing, bullying or embarrassment will have a deleterious effect on a child’s self-esteem and self-confidence with potentially long term consequences for him or her. The burden of such a name can also cause that child to feel considerable resentment towards the parent who inflicted it upon him or her….

Facts of C Children [2016]

So what happened in this case to justify the court refusing to allow a mother to name her children? This case involved a mother with serious mental health issues. She had a long standing diagnosis of a psychotic disorder and of schizophrenia of an “undifferentiated type with an underlying personality disorder”. She did not accept the diagnosis and thus would not accept any treatment but she was found to have capacity to give instructions in the care proceedings.

Her three elder children had been removed from her care. She then had twin children who were subject to ICOs shortly after birth. Their father was not known; the children were conceived after the mother was raped. She told the midwife she wanted to call the twins ‘Preacher’ and ‘Cyanide’. The local authority tried to persuade her against this but failed – the mother argued that it was a ‘lovely, pretty name’ and that because Hitler killed himself with cyanide, this was a positive connotation.

After some weeks of attempts to change the mother’s mind, the local authority first asked the court to exercise its inherent jurisdiction under s.100 Children Act 1989 to prevent the children being so named but the court did not agree that this was the right route. However, as registering a birth and naming a child were ‘aspects of parental responsibility’, they were actions of a parent which could be limited by the local authority under s.33(3)(b) Children Act 1989. The court then declared that the local authority were allowed to prevent the mother from registering the children with those names.

The mother appealed on the basis that that the judge was wrong in concluding that the naming of the child and the registration of the child’s birth were each an exercise of parental responsibility and that the judge erred in concluding that a local authority has power under section 33(3)(b) CA 1989 to determine that the mother should not register her children’s births with her chosen names. Therefore, it was her human right to choose their names and register them without the interference of the local authority.

The Court of Appeal rejected the mother’s grounds and agreed that the registration of the births and naming of children were acts of parental responsibility, but also that a court could, under its inherent jurisdiction intervene in these circumstances and that the appropriate statutory route was therefore s.100 Children Act 1989.

The first court had not been happy to consider use of the inherent jurisdiction because it did not consider that the test of significant harm was met but King LJ in the Court of Appeal held that some names – such as Cyanide – were so awful that they gave rise to reasonable cause to believe that any child given that name was likely to suffer significant emotional harm. The Court did not have the same objections to ‘Preacher’ but did not think it right for one child to be named by the mother and the other not, so agreed that this name should not be registered either.

Happily in October 2015 the twins moved permanently to live with the foster family caring for their two eldest half siblings live, who chose names that they would like their brother and sister to be called

The limits to what a parent may do to a child under heading of “parental responsibility”.

This case is a useful illustration of the fact that PR while very important and worthy of protection, is not a green light for a parent to do whatever they want. The Children Act defines “parental responsibility” as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

In Re H-B (Contact) [2015] EWCA Civ 389, the then President of the Family Division, Sir James Munby P, quoted with approval the judgment of McFarlane LJ in Re W (Direct Contact) [2012] EWCA Civ 999 at para 72: i:

I wish to emphasise this, parental responsibility is more, much more than a mere lawyer’s concept or a principle of law. It is a fundamentally important reflection of the realities of the human condition, of the very essence of the relationship of parent and child. Parental responsibility exists outside and anterior to the law. Parental responsibility involves duties owed by the parent not just to the court. First and foremost, and even more importantly, parental responsibility involves duties owed by each parent to the child.

The foundation of the exercise of PR is therefore those acts which contribute to or secure the welfare of the child. Refusing to register your child’s birth or giving a child a name that many others are likely to find offensive or ludicrous is an abnegation of PR, not an exercise of it and parents have no ‘right’ to do harm to their child.

Background

Recording court proceedings

Order restricting communication with the court office

Reasons given not to inform the father

The report noted key themes

Pro contact culture and other curious statements

The value of self selective lived experience.

Conclusion

Further reading

Is vaccination a ‘grave and serious’ matter?

The child in the care of the local authority

Medical evidence about the benefit of vaccines is clear

Regardless of benefit – are vaccines ‘serious medical treatment’?

Cases involving disputes between parents

Warning to local authorities

What has worked well?

Do you have concerns?

What improvements could be made?

Further reading

Advice on mechanics of remote hearings

Commentary

Case law

The right of journalists and bloggers to attend court – yes they can.

I don’t want journalists to report about my hearing. What can I do?

But what if I want to exclude journalists before the hearing starts?

What is the Press Association Injunction Alert Service?

The notification system

The Practice Direction 12I and Practice Note

So how do I know who and how to serve?

Further Reading

REPORTING RESTRICTION ORDER

EXPLANATION

ORDER

SCHEDULE 1

SCHEDULE 2

SCHEDULE 3

SCHEDULE 4

SCHEDULE 1

SCHEDULE 2

SCHEDULE 3

SCHEDULE 4

Further reading

11.25 – 12.05 Reforming care proceedings in England and Wales – Special Guardianship Orders, improving standards nationwide and innovative approaches to care

The narrative you embrace clearly has consequences for the direction of travel of care proceedings.

What happens to children under 16 who need help from the State with somewhere to live?

The distinction between ‘in need’ and ‘looked after’

So what does this mean?

It’s not the label that matters, its the facts and the legal consequences.

Has the LA taken a ‘major role’ in making arrangements for the child to be accommodated?

Does it then matter if the LA argues section 23(2) or 23(6)?

How far can the state interfere with a parents wish to register (or not) the birth and name of their baby?

Registering the birth: the operation of the Birth and Deaths Registration Act 1953

Naming your child – an issue of fundamental significance

Facts of C Children [2016]

The limits to what a parent may do to a child under heading of “parental responsibility”.