Family Law Newsletter – June 2024
newsletter
17/06/2024
Welcome
Family Law Newsletter – June 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.
Contributors
News
McFarlane LJ gives his views on the Family Justice System:
READ
Huge uplift in the number of separation proceedings being resolved through mediation since the introduction of the Family Mediation Voucher Scheme:
The effect of the revised Family Procedure Rules 2010 (FPR) on those working in family law, both in and out of court:
The Law Society calls for civil legal aid fees to be increased as number of litigants in person in private family law increases:
Ongoing work to support the sibling relationships of those separated by the care system:
Pilot to explore the impact of increased formality in family courts following concern over incidents of violent and threatening behaviour experienced by judges and court users:
Divorce fees will remain at the same rate despite proposed 10% increase:
Article
Recent efforts have been made to reduce delay in public law Children Act proceedings. However, parents and families are faced with increasingly stretched public resources, including those available on the NHS. In many cases, the therapy with which the family are advised to engage is simply not available within the Court timetable. In this article, Francesca Massarella asks how a fair result can be achieved for a family when the help needed is simply out of reach.
Reducing the delay in Children Act proceedings: 26 weeks vs NHS waiting lists.
Case Updates
YR, Re (Deprivation of Liberty – Care Order – Principles of Care) [2024] EWHC 564 (Fam)
IN THE HIGH COURT OF JUSTICE, FAMILY DIVISON BEFORE MRS JUSTICE LIEVEN
Factual Background:
The case concerns JR, a 16-year-old boy. The issues before the judge were whether to make a Care Order and to determine the terms of a Deprivation of Liberty Order (DoL).
JR was adopted by his parents when he was four years old after a traumatic early life. In March 2021 JR’s parents raised concerns relating to JR’s physically aggressive and sexually inappropriate behaviours. In April 2021 JR was accommodated by the Local Authority (LA) at a residential school under s.20 of the Children Act 1989 (CA). Since then, JR has been accommodated in various placements from which he has frequently absconded and placed himself and others at harm. More recently, there has been concern as to whether JR is being sexually exploited. Amongst all this there was a disagreement between the LA and JR’s parents over the risks involved with JR’s father taking him on a skiing holiday in 2024. This resulted in an order being granted by HHJ Walker preventing JR’s parents from removing him from the jurisdiction. The full background is outlined at paragraphs 4 to 28.
A psychological assessment of JR was conducted by Dr Williams, and the report was produced on 15 January 2024. The report highlighted that JR has been diagnosed with Autism Spectrum Disorder (ASD) and Attention Deficit Hyperactivity Disorder (ADHD) and it was considered that he also has Non-Verbal Learning Disability (NVLD). The report also considered that, in addition to developmental trauma being likely to have contributed to JR’s difficulties, an additional contributing factor was his “highly probable exposure to drugs and particularly alcohol during the pre-natal stages of his development.” Further details from this report are outlined at paragraphs 29 to 34.
All parties agreed that there should be a DoL order. The LA wished to withdraw its application for a Care Order, and this was agreed by the parents. However, this was strongly opposed by the Guardian.
This judgment refers to lessons to be learnt about the way children subject to DoL orders are assessed and their needs met. It was highlighted that these children “are amongst the most complex and traumatised children within the Care and Family Justice systems, yet the care they receive is often, although not always, extremely poor.” Particular reference was made to the Nuffield Family Justice Observatory (NFJO Report) Principles of care for children with complex needs and circumstances; Principles of Care Framework 2023. The relevant information drawn from the NFJO Report is referred to at paragraphs 35 to 37.
Applicable Law:
Under s.1(5) CA, the starting point for a Care Order is the “No Order” principle and that a Care Order should only be made if it is better for the child to do so than not do so. The welfare checklist at s.1 CA provides details of when a Care Order is proportionate and necessary in the circumstances and in the best interests of the child.
The guidance in JW (Child at home under care order) V [2023] EWCA Civ 944 [28] makes it clear that “it is wrong to make a care order in order to impose duties on a local authority or use it to encourage them to perform the duties that they have to a child in need.”
There is a lower level of oversight of a child accommodated under s.20 CA and, once a child turns 17, the LA will have no ability to resolve disputes in respect of their welfare. Care Orders provide greater oversight by the LA. Relevant to the background facts of this case, s.33 CA states:
(3) While a care order is in force with respect to a child, the local authority designated by the order shall—
(a) have parental responsibility for the child; and
(b) have the power (subject to the following provisions of this section) to determine the extent to which
(i) a parent, guardian or special guardian of the child; or
(ii) a person who by virtue of section 4A has parental responsibility for the child,
may meet his parental responsibility for him.
(4) The authority may not exercise the power in subsection (3)(b) unless they are satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare.
Conclusion / Judgment:
It was noted that it was of the utmost importance that the Principles of Care and the specific recommendations set out in Dr Williams’ report were met. In assessing whether it was necessary and proportionate to make a Care Order consideration was given to ensuring certainty as to how decisions will be made about JR’s care. It was acknowledged that JR’s parents “plainly care deeply about JR and want what is best for him” but this was balanced against situations where they and the LA have not agreed. It was considered that a Care Order would give greater confidence in the LA taking responsibility for JR’s care and it would give a greater level of oversight of him. It would also allow the LA to resolve any potential disputes in respect of JR’s welfare once he is 17, which would not be the case if he remained accommodated under s.20. This was highlighted as particularly important where the child’s needs are complex and difficult to meet such are JR’s.
It was concluded that it was quite possible that JR would have been left in inappropriate placements and with a lack of attention to his holistic needs had there not been court intervention. Therefore, the view was taken that it was in JR’s best interests for a Care Order to be made and that it was necessary and proportionate in the circumstances.
Leicester City Council v The Mother & Anor [2024] EWHC 923 (Fam)
IN THE HIGH COURT OF JUSTICE, FAMILY DIVISON BEFORE MRS JUSTICE LIEVEN
Factual Background:
This case relates to a child (A), born on the 5 September 2023, aged almost 7 months. The local authority (LA) issued an application for a care order immediately after A’s birth.
M did not formally respond to threshold, but the court noted that there could not be any doubt that threshold had been crossed given her history, a summary of which is provided at paragraphs 1 to 8. The father is unknown.
After extensive efforts by the LA to find other family members who could care for A, there was only one family member who put herself forward and had a positive Initial Viability Assessment. This was a Maternal Aunt who lives in Switzerland. The Maternal Aunt, who is of Somali Descent, did not have Swiss citizenship but does have settlement status in Switzerland and could remain there indefinitely. Prior to a hearing on 2 October 2023, enquiries were made of Child and Families Across Borders (CFAB) regarding a full kinship assessment of the Maternal Aunt. This application had been a prolonged, convoluted, and lengthy process, a detailed chronology of which is at paragraphs 11 to 47.
This judgment was in relation whether the court should discharge an order for the assessment of the Maternal Aunt as a long-term carer for A. The LA made the application, and it was supported by A’s Guardian. M opposed it.
Of note and relevant to the outcome of this case, proceedings were in week 30 and the timetable for the conclusion of proceedings had been extended from 26 weeks (which had expired on 7 March 2024). This hearing, which took place on 3 April 2024, was the seventh in the case.
Applicable Law:
The court’s control of expert evidence and assessment in children’s proceedings is governed by s.13 Children and Families Act 2014 (CFA) and, when deciding whether to grant permission the court is to have regard to the factors at s.13(7).
Additionally, the court must have regard to Family Procedure Rules 2010 (FPR):
- The court must have regard to the overriding objective (FPR 1).
- The decision to revoke a direction for assessment is a case management decision and therefore Part 4 FPR applies. The court has the power to revoke an earlier direction for assessment pursuant (FPR 4.1(7)).
- The powers of the court are flexible. The timetable must be drawn without delay. The court must consider the impact on the child of any revision or extension to the timetable (Practice Direction 5).
The approach to the making of placement orders was set out in Re B-S (Children) [2013] EWCA Civ 1146 [6].
“The court cannot make a placement order unless either the parent has consented, or the court is satisfied that the parent’s consent should be dispensed with;
The court cannot dispense with a parent’s consent unless either the parent cannot be found, or lacks the capacity to give consent, or the welfare of the child “requires” the consent to be dispensed with;
In deciding whether or not to make a placement order the paramount consideration of the court must be to the child’s welfare “throughout his life”.”
In London Borough of Tower Hamlets v D, E, F [2014] EWCH 3901 (Fam) [8] Hayden J recognised that:
“British society is now multicultural. Assessing parents and family members may, quite frequently does, involve individuals based anywhere in the world. I do not believe that the obligation to explore the family option for a child is weakened in any way by geography, although it can provide real challenges to already overstretched resources… There will, in my judgement, be occasions when the obstacles to assessment of family members abroad create such delays that to pursue the option will be inconsistent with the child’s own timescales.”
Finally, in Re W (A Child) [2016] EWCA Civ 793 [68] to [71] and [89] McFarlane LJ considers:
- the phrase “nothing else will do” in relation to the test of necessity when considering whether to severe ties between a child and her parents and;
- the “natural family presumption/right (for a child to be brought up by a member of her natural family)”, particularly in relation to Article 8 rights under the European Convention on Human Rights (EHCR).
conclusion / judgment:
The Court approached the case bearing in mind extensive efforts that the LA has already gone to for the Maternal Aunt to be assessed as a long-term carer for A. Consideration was also given to how prejudicial any further delay by allowing the assessment to take place would be to A’s long-term care. Of particular relevance were the pros and cons set out in the Position Statement given by the Guardian’s counsel, the details of which are set out at paragraphs 58 and 59.
As well as there being no potential for A to be placed with a family member, the judge also considered that any non-family placement would be one that is less culturally appropriate for him as it would not be easy to find a long-term placement in a Somali family. Finally, it was acknowledged that it would be necessary to explain to A when he is older why he was not brought up by his family, even though his Aunt wanted to care for him.
However, it was recognised that if the Aunt was to continue to be assessed it would involve at least 9 months of further delay and that there was no guarantee that she would be positively assessed. The real possibility that if A could not ultimately be placed with the Aunt, further delays would make his bonding process with a new family significantly more difficult was also considered.
The Court reached the conclusion that it was in A’s best interests that the case proceeds as speedily as possible to the making of final orders so that a permanent placement could be found for A. Given the delays already incurred and those additional delays that could follow, it was concluded that it was not in the best interests of A to continue the quest for the assessment of the Aunt.
