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Family Law Newsletter – March 2024




Family Law Newsletter – March 2024; Articles, news, legislation updates and case updates from Care Proceedings, Private Law and Financial Remedy matters.

Edited by Francesca Massarella and Josie Canham-Williams; news and Case Updates by 2024 Pupil Sarah Hutchinson.



‘Ghost Children’ – The Children’s Commissioner addresses concerns about rising school absenteeism rates:


Erosion of access to justice for children, families, and vulnerable adults:



A ‘straight-talking’ guide to help family lawyers engage with out-of-court dispute resolutions:



Report highlights huge variations in access to child in need support:



2024 Protocol relating to private and public family law proceedings published:


Study recognises pre-case management hearing meetings in care proceedings as good, standard practice:


Listening to the voice of children in private family law:



West Northamptonshire Council v KA and ORs [2024] EWHC 79 (Fam)


Factual Background:

The case concerns a child, X, born in early July 2021. Applications for care and placement orders were made on 22 May 2023 relating to the risk of significant harm to X due to the mother’s relationships, unstable mental health, and alleged inability to recognise dangerous and risky situations.

The mother is profoundly deaf and made an application for a deaf intermediary assessment which was not opposed by the Local Authority and the Guardian. An application for a specialist parenting assessment was initially rejected by the Court but granted on appeal by the mother on 17 August 2022. The background of these applications is outlined at paragraphs 3 to 22 with details of the assessments of the mother detailed at paragraphs 23 to 31.



The assessments identified that the mother would benefit from a deaf intermediary and Ms Z was appointed to attend the final hearing on 6 Nov 2023 for 5 days. Ms Z did not attend, and the hearing was adjourned and relisted for 5 days commencing 22 January 2024.

HHJ Carter, listed the matter for consideration of whether it was appropriate for Wasted Costs Order to be made against Ms Z. It was also considered whether there was a requirement for a deaf intermediary for the mother for the entirety of the hearing.

No party applied for a Wasted Costs Order against Ms Z or submitted that the order for a deaf intermediary for the mother should be varied.

This judgment contains specific guidance on the use of intermediaries in the Family Court.


Applicable law:

The definition of an intermediary is defined in Family Procedure Rules r3A.1 as follows:

“… [I]ntermediary means a person whose function is to –

  1. communicate questions put to a witness or party;
  2. communicate to any person asking such questions the answers given by the witness or party in reply to them; and
  3. explain such questions or answers so far as is necessary to enable them to be understood by the witness or party or by the person asking such questions…”

Further key principles can be taken from Criminal Practice Directions 2015 on the appointment of intermediaries, including steps to assist defendants in their effective participation in the proceedings. These were considered in R v Thomas (Dean) [2020] EWCA Crim 117 at [36 to [42]. The principles were summarised as follows:

  1. It will be “exceptionally rare” for an order for an intermediary to be appointed for a
    whole trial. Intermediaries are not to be appointed on a “just in case” basis. Thomas [36]. This is notable because in the family justice system it appears to be common for intermediaries to be appointed for the whole trial. However, it is clear from this passage that a judge appointing an intermediary should consider very carefully whether a whole trial order is justified, and not make such an order simply because they are asked to do so.
  2. The judge must give careful consideration not merely to the circumstances of the
    individual but also to the facts and issues in the case, Thomas [36];
  3. Intermediaries should only be appointed if there are “compelling” reasons to do so,
    Thomas [37]. An intermediary should not be appointed simply because the process “would be improved”; R v Cox [2012] EWCA Crim 549 at [29];
  4. In determining whether to appoint an intermediary the Judge must have regard to
    whether there are other adaptations which will sufficiently meet the need to ensure that the defendant can effectively participate in the trial, Thomas [37];

  1. The application must be considered carefully and with sensitivity, but the
    recommendation by an expert for an intermediary is not determinative. The decision is always one for the judge, Thomas [38];
  2. If every effort has been made to identify an intermediary but none has been found, it
    would be unusual (indeed it is suggested very unusual) for a case to be adjourned because of the lack of an intermediary, Cox [30];
  3. At [21] in Cox the Court of Appeal set out some steps that can be taken to assist the
    individual to ensure effective participation where no intermediary is appointed. These include having breaks in the evidence, and importantly ensuring that “evidence is adduced in very shortly phrased questions” and witnesses are asked to give their “answers in short sentences”. This was emphasised by the Court of Appeal in R v Rashid (Yahya) [2017] 1 WLR 2449.

It was acknowledged that all these points listed are “directly applicable to the Family Court”.

The starting point in cases where relevant parties may have difficulties with understanding proceedings and the language used is the Advocates Gateway. Advocates should be familiar with the advice provided on adopting simple language and taking breaks to assist understanding by vulnerable parties. As stated in R v Lubemba [2014] EWCA Crim 2064 at [45] “Advocates must adapt to the witness, not the other way round”.

The test to consider when a judge considers whether to appoint an intermediary is not because it will make the hearing easier but because it is justified.


Conclusion / Judgment:

Consideration was given to the assessments of the mother whereby it was acknowledged that the mother had wider communication difficulties beyond the fact that she is profoundly deaf. It was also acknowledged that there were specific issues relating to the specific interpretation issues involved with British Sign Language.

It was considered that it might have been possible to determine parts of the trial that could be conducted without the use of an intermediary. But it was accepted that, on the facts of the case and the particular issues presented, there would be a significant risk that the mother would not be able to fully understand the trial proceedings.

The judge concluded that there was to be no Wasted Costs Order against Ms Z and that the order for the use of an intermediary throughout was continued.


Re ‘U’ (A Child: Deprivation of Liberty) [2024] EWHC 228 (Fam)


Factual Background:

This case relates to U, a seven-year-old boy who has been diagnosed with autism and attention deficit hyperactivity disorder. He is currently placed in a Children’s Home funded by the Local Authority, under an Interim Care Order. This order is part of ongoing proceedings in the Family Court involving U and his three siblings. A full background and summarised history of proceedings can be found in ‘UDTQ’ (No Adequate Care Planning) [2024] EWFC (B) at paragraphs [2] to [47].

The home is registered as a Children’s Home for 7- to 18-year-olds for the purposes of the Care Standards Act 2000 s.1(2), and it received an Ofsted rating of ‘Good’ in December 2022. U is the youngest child in the placement. In order to manage U’s behaviour, he has 2:1 adult supervision by staff members when present in the community and 1:1 supervision during the day and night at all other times. Members of staff have also had cause to physically restrain U on at least six occasions since November 2023. Details of the incidents are detailed in paragraphs 9 to 11.

On 24 January 2024 the Local Authority made an application for a Deprivation of Liberty Order, a permissive Order under the inherent jurisdiction of the High Court. It was noted that U was at “an extraordinary young age for a child subject to an application of this nature”.

U’s Guardian reluctantly supported the application. The parents opposed the application.

Applicable Law:

The High Court may use its inherent jurisdiction to authorise the deprivation of a looked after child’s liberty in a registered children’s home which has not been approved as secure accommodation by the Secretary of State. However, this is limited to cases where there are imperative conditions of necessity.

A declaration under the inherent jurisdiction does not itself deprive a young person of their liberty. Instead, it authorises the Local Authority or those acting on its behalf to do so.

Article 5 (right to liberty and security of person) of the European Convention on Human Rights (ECHR) stipulates that no one shall be deprived of his liberty save in the circumstances described at Article 5 and in accordance with a procedure prescribed by law. A deprivation of liberty for the purposes of Article 5 will only be lawful if the Court is satisfied that it is in the child’s best interests, with the paramount consideration being the child’s welfare. The child’s welfare needs must be considered both holistically and realistically, which demands that the Court considers the likely consequences of any order it does not make.

In considering any application for deprivation of liberty, the court must ask itself two key questions:

  1. do the arrangements proposed for the child, ‘U’, amount to a deprivation of liberty for the purposes of Article 5 of the ECHR?
  2. if so, is the deprivation of liberty in the child’s best interests?

Furthermore, the Supreme Court set out an ‘acid test’ of whether a person is being deprived of their liberty in Cheshire West and Chester Council v P [2014] UKSC 19:

    1. the person is unable to consent to the deprivation of their liberty;
    2. the person is subject to continuous supervision and control; and
    3. the person is not free to leave.

To determine whether a child is restricted, a comparison is made between the child’s actual freedom and the notional circumstances of a typical child of the same age, station, familial background and relative maturity, whose freedom is not limited.

Article 8 (right to respect for private and family life) of the ECHR carries a positive duty on the state to with respect to measures designed to secure respect for the child’s psychological integrity.

Finally, the three-part test in Storck v Germany [2005] 43 EHRR 6 (adopted by the Supreme Court in Cheshire West) is to be given regard by the Court. Namely:

  1. the objective component of confinement in a particular restricted place for a not
    negligible length of time;
  2. the subjective component of lack of valid consent; and
  3. the attribution of responsibility to the State.

conclusion / judgment:

The Court approached the case bearing in mind all the circumstances of the child and having regard to the current care arrangements in the Children’s Home in relation to constant supervision and control. Consideration was also given to the responsibility of the Local Authority in relation to identifying and funding the Children’s Home and approving the package of interim care provided. It was concluded that the three-part test in Storck and the conditions of ‘imperative necessity’ were met.

The judge stated that, on the evidence available, there were limited options for U to prevent risk of harm to himself and others. It was determined that it was in U’s best interests to make an Order depriving him of his liberty as the restrictions set out in the Order were the ‘least restrictive’ options for U.

The Court directed the Local Authority to use the minimum degree of force of restraint required. Such use of force/restraint would be lawful and in U’s best interests if used as a last resort and provided always the measures are:

  1. the least restrictive U’s rights and freedoms;
  2. proportionate to the anticipated harm;
  3. the least required to ensure U’s safety and that of others; and
  4. respectful of U’s dignity.

The Court noted that a full review of U’s circumstances would be carried out on 14 March 2024 and ordered that the Local Authority apply to the Court for urgent review of the Order before making any changes to the Care Plan.


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