Family Law Newsletter – December 2024
newsletter
09/12/2024
Welcome
Family Law Newsletter – December 2024; Articles, news, legislation updates and case updates from Care Proceedings, Private Law and Financial Remedy matters.
Edited by Lauren Gardner and Eleanor Suthern; news and Case Updates by 2025 Pupil Caitlin Smithey
Contributors
In The News
Cafcass publishes new Domestic Abuse Practice Policy
Councils failing to recognise domestic abuse where it isn’t physical, Ombudsmen says
Government intends to launch Domestic Abuse Protection Notices and Orders pilot in November 2024:
Chambers News
We are delighted to announce that Jess Butterell has joined award-winning TeamSpire from another local set. Now specialising exclusively in Children Law, Jess previously practised in the criminal jurisdiction and has experience both prosecuting and defending in the Crown Court. In both jurisdictions, Jess is a junior with substantial experience of being led, including in cases concerning allegations of non-accidental injuries in the Family Courts.
She has recently been ranked as a ‘rising star’ for Family Law: Children in The Legal 500 2025
Case Updates
R and C (Adoption or Fostering) [2024] EWCA Civ 1302
This case concerns an appeal brought by a Local Authority, supported by the Children’s Guardian, against a judge’s refusal to make placement orders in respect of the two youngest children during care proceedings for four siblings N (a boy aged 6), Y (a boy aged 5), R (a girl aged 3 years 9 months) and C (a boy aged 2 years 9 months). The judge at first instance refused to grant the placement orders as he considered there was a continuing need for the children to have contact with their birth family, and for the older siblings in particular, adoption was inappropriate.
The decision was appealed on the following two grounds:
- The judge was wrong to conclude that the sibling relationship could not be preserved under an adoption care plan
- The judge was wrong to refuse placement orders on the basis that the mother “could not be completely ruled out”
The Court of Appeal reiterated the principle that when making an order under section 21 of the Adoption and Children Act 2002, it is the Court who has the responsibility for determining whether ongoing contact between the child and their birth family should take place.
Factual Background
By way of background, this appeal was brought in respect of long running care proceedings involving four children who shared the same mother but had three different fathers. Only Y’s father was involved in proceedings. There had been two sets of proceedings. The first resulted in supervision orders being made, accompanied by a transition plan into the mother’s care. The second proceedings concluded with the judge rejecting the Local Authority’s application for placement orders and all four children remained in foster care.
The first instance judge outlined: ‘These are very young children, but an argument that because of their ages they deserve a right to permanency comes perilously close to social engineering.’ The judge held that the mother ‘could not be ruled out’. On this basis, it was found that adoption was neither necessary nor proportionate.
An appeal was issued to the Court of Appeal by the local authority, supported by the guardian.
Legal Principles
The Court applied the relevant legal principles outlined in Adoption and Children Act 2002, including section 1, section 26 and 27 and section 51A.
The court referred to the following cases:
- Re B (Care Proceedings: Appeal) [2013] UKSC 33 [2013] 2 FLR 107, paragraph 198: adoption can only be an option when ‘nothing else will do’.
- In Re P (Placement Order: Parental Consent) [2008] EWCA Civ 535): contact is a matter for the court to determine.
- In Re B (A Child: Post-Adoption Contact) [2019] EWCA Civ 29: “As required by ACA 2002, s.27(4), the court must consider the issue of contact and any plans for contact before making a placement for adoption order. The court’s order may well, therefore, set the tone for future contact, but the court must be plain that, as the law stands, whilst there may be justification in considering some form of direct contact, the ultimate decision as to what contact is to take place is for the adopters and that [it] will be ‘extremely unusual’ for the court to impose a contrary arrangement against the wishes of adopters.”
- Re T and R (Children) (Refusal of Placement Order) [2021] EWCA Civ 71
The Decision
The Court of Appeal concluded that the basis on which the first instance Judge refused to issue a placement order was wrong. The Court of Appeal upheld ground 1, namely that the sibling relationship could not be preserved with a placement order.
It was found that the first instance Judge had erred in his comments that contact with the ‘sibling cannot be guaranteed’ in adoption as it would be ‘at the discretion of the adopters’. The court found that in doing so, he neglected to consider that as per Wall LJ in Re P, the question of contact is not for the local authority or the adoption agency or the adopters but instead is ‘for the Court’ and that “the Court has the responsibility to make orders for contact if they are required in the interests of the two children”.
Furthermore, it was held that the Judge was wrong in dismissing the Local Authority’s argument for a placement order on the basis that the children’s ages (ages two and three years old) and their right to permanency. This argument was rejected at the first instance on the basis that it “comes perilously close to social engineering”. The Court of Appeal held that there was no justification for the comment ‘it “comes perilously close to social engineering’ due to permanency being a defining feature of adoption.
The judgment considered the comment that ‘the mother cannot be completely ruled out’ and the Court of Appeal held that on the evidence, there was nothing to substantiate this, beyond speculation.
The appeal was allowed.
The Court of Appeal went one step further and made a placement order in favour of both of the younger children. This was conditional on them being able to attend contact with their older siblings six times a year.
A Mother, A Father & Anor [2024] EWHC 2643 (Fam)
Factual Background:
This case concerns a 12-year-old boy (G) where proceedings were brought by his mother pursuant to Article 12 of the Hague Convention, seeking a summary return of G from the United Kingdom to Singapore. The Father’s position was that he opposed G’s return to Singapore.
G has dual nationality; his mother is a Singaporean national (with indefinite leave to remain in the UK) and his father is a British national. The Mother and Father married in the UK but moved to Singapore in 2012 when G was less than one and have remained there since. Their divorce was finalised in 2023 in Singapore. Pursuant to the child arrangements, G was to spend the second half of his summer holiday with his father in California. Instead of returning G to Singapore as agreed, the father brought G to England. As a consequence of the father’s nonattendance at a Court hearing in Singapore on 6th August 2024, in relation to enforcing a debt he owed the Mother, a warrant was issued for his arrest and bail was set at S$2000.
Legal Principles
The respondent’s objections to a summary return were as follows:
a. That the child objects (Article 13 of the Hague Convention); and
b. That a return to Singapore would expose the child to a grave risk of harm (Article 13(b) of the Hague Convention).
Firstly, G’s objection was considered in light of Article 13 of the Hague Convention, namely:
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
Re M and other (Children) (Abduction: Child’s Objections) [2015] EWCA Civ 26 (summarised in Re Q and V (1980 Hague Convention and Inherent Jurisdiction Summary Return) [2019] EWHC 490) outlines the six key principles:
- The gateway stage should be confined to a straightforward and fairly robust examination of whether the simple terms of the Convention, considering the age and degree of maturity at which it is appropriate to take account of his or her views.
- Whether a child objects is a question of fact. An objection in this context is to be contrasted with a preference or wish.
- The objections of the child are not determinative of the outcome but rather give rise to a discretion.. The child’s views are one factor to take into account at the discretion stage.
- There is a relatively low threshold requirement in relation to the objections defence, the obligation on the court is to ‘take account’ of the child’s views, nothing more.
- At the discretion stage there is no exhaustive list of factors to be considered. The court should have regard to welfare considerations, in so far as it is possible to take a view about them on the limited evidence available.
- Once the discretion comes into play, the court may have to consider the nature and strength of the child’s objections, the extent to which they are authentically the child’s own or the product of the influence of the abducting parent, the extent to which they coincide or at odds with other considerations which are relevant to the child’s welfare, as well as the general Convention considerations (Re M [2007] 1 AC 619).
Secondly, the court considered 13 (b):
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The Judge considered X (Children) (Abduction: Grave Risk: Child’s Objections) [2024] EWHC 1296 (Fam), paragraph 63 which highlights the importance of words such as ‘grave’ and ‘intolerable’:
It is not enough for the risk to be ‘real’. It must have reached such a level of seriousness that it can be characterised as ‘grave’. Although ‘grave’ characterises the risk rather than the harm, there is in ordinary language a link between the two.
‘Intolerable’ is a strong word, but when applied to a child must mean ‘a situation which this particular child in these particular circumstances should not be expected to tolerate’.
Grave risk can be summarised by way of reference to the two-stage test:
- Is there a potential grave risk?
- Do the protective measures sufficiently ameliorate that risk?
The opposing cases of AT v SS [2015] EWHC 2703 and Re GP (A child) [2017] EWCA Civ 1677 were also considered. The former contained a decision founded on the basis that the child concerned would have to suffer some discomfort and distress, however the local authorities with which the child was to be placed would be equipped to address this. The latter concerned the Court of Appeal overturning a decision to return a child to Italy notwithstanding that her mother was facing prison. The parent in that case was a primary carer, distinct from current proceedings concerning shared care.
conclusion / judgment:
In relation to the respondent’s argument citing the child’s objection, this was rejected on the basis that G did not necessarily object to the return to Singapore but was afraid that his father will be sent to prison if his father were to return to Singapore.
On the basis that G would be returning to a life he knew with his mother, the Judge ruled that this could not be considered a grave risk and so the defence under Article 13b was rejected.
As such a summary return was ordered to Singapore, conditional upon the mother providing undertakings as set out within the judgment. The father was urged to return as soon as he can to Singapore to continue his shared care arrangements with G.
