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YRes West Midlands Children Law Update

Date:3 MAY 2016
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Hollie Orgee, Irwin Mitchell
Lucie French, St Philips Chambers

YRes West Midlands Children Law Update, 14 April 2016 at St Ives Chambers

Children law matters seem to be particularly at the forefront of people's minds at the moment. After all, if it can happen to Madonna and Guy Ritchie (featuring the Midlands' own MacDonald J), it can happen to us all. On that basis, the sixth annual YRes West Midlands Children Law Update came at the perfect time.

As always, there was an excellent turnout for the event - in fact, it completely sold out! We put this down to the fantastic speakers: Jeremy Weston QC of St Ives Chambers, and Elizabeth McGrath QC of St Philip's Chambers (although no doubt ticket sales were improved by the prospect of St Ives' sausage rolls!).

Attendees were treated to a whistle-stop tour of the recent key cases in both private and public law.

Private Law

Relocation: external

Elizabeth McGrath QC began the seminar discussing developments in private law children matters. Liz firstly explored with us the recent case of Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4, [2016] 1 FLR 561, which concerned a British child removed from the UK to Pakistan by her biological mother. The issue was one of jurisdiction arising out of the question of where the child could be said to be habitually resident. Delivered by the Supreme Court, the judgment marks a shift towards a child-centred approach in relocation cases when determining at which moment the child loses (or gains) habitual residence.

In fact, Liz explains that the courts are now recommending a detailed analysis of all of the facts relevant for the establishment of a child's habitual residence. We were told that Lord Wilson drew the conclusion that the intention of the removing or abducting parent no longer solely determines the loss (or acquisition) of a child's habitual residence. The courts are moving away from Shah, towards a test which takes into account: the duration of habitual residence; regularity; and conditions and connections of that child, among other things. The Supreme Court counselled in favour of making a list of relevant factors for and against and weighing the case in this way.

In the present case, the points for the disengagement of the child were that the child was removed by her biological mother; she knew she was going to live in Pakistan; she had cultural heritage in Pakistan; and the respondent mother had believed that they would have a better life in Pakistan and had gone to live there 2 months before to look at where they would live etc. The points against the disengagement from the UK were that the child had lived in the UK for 5 years; spoke English and little Urdu; the appellant was the second-most important person in the child's life; they had no knowledge of the removal; and the child had emotional links to the appellant.

In essence, the list against the child's disengagement with the UK was longer; therefore, the court decided that the child was habitually resident in the UK. Liz advised that this was a useful case when advising in others where habitual residence was an issue.

Relocation: internal

Liz then addressed another relocation case, this time involving internal relocation: Re C (Internal Relocation) [2015] EWCA Civ 1305, [2016] FLR forthcoming. The court specifically considered the principles to be applied, and the differences as against the court's approach to external/internal relocation.

The mother was currently living with the child in a flat paid for by the father in London, but wanted to relocate to Cumbria where she was from originally. In the first instance, the Recorder made a child arrangements order alternating the child's residence between Cumbria and London.

The father appealed unsuccessfully. The Court of Appeal held that the welfare principle dictates the results in internal relocation cases, just as in external relocation. They said the approach in K v K (Relocation: Shared Care Arrangement) [2011] EWCA Civ 793, [2012] 2 FLR 880 applied equally to internal relocation cases and it is necessary to include a careful examination of the parent's wishes and interests.

The court upheld the Recorder's use of the factors indicated in Payne v Payne [2001] EWCA Civ 166, [2001] 1 FLR 1052, where it was of assistance as part of the analysis before determining what was in the child's best interests. Payne factors were not regarded as prescriptive, but more of a checklist of factors which will need to be weighed when determining the best interests of the child.

Child arrangement orders: supervised contact in principle

Liz then went on to discuss child arrangements orders and the case of Re S (A Child): (Child Arrangements Order: Effect of Long-Term Supervised Contact on Welfare) [2015] EWCA Civ 689. This was a particularly important case with regards to where the welfare of a child demanded contact with supervision on a long-term basis. The facts of the case were as follows: the father had convictions for downloading pornographic images of adolescent girls. A risk assessment within proceedings identified the father as posing a significant risk to female minors, but a small risk to his son. In the first instance, the judge ordered indirect contact only. On appeal, King LJ (giving the judgment of the Court of Appeal) held that his application had been refused on the basis of a principled objection to long-term supervision contract, but that this was fatally flawed. She noted that, as in Public Law proceedings, there were cases where the welfare of the child demanded contact with supervision on a long-term basis.


Liz then turned to some updates with regards to surrogacy. The matter of H v S (Disputed Surrogacy Agreement) [2015] EWFC 36, [2016] 1 FLR 723 concerned a one-year-old child conceived following an arrangement with the fathers, who were in a same sex relationship, and the mother, who was a close friend. The fathers contended that it was agreed that they would raise the child and the mother would play an active role, but the mother argued that it was agreed she would raise the child and the father's partner would play no role in the child's life. The judge found that the mother had made choices about the child's life without consultation, and she had disparaged the men to the child. A child arrangements order was made for the child to live with the fathers (granting parental responsibility to the father's partner). The judge also ordered supervised contact with the mother. It was found that the mother had deliberately misled the men in order to conceive a child for herself, but this was not the aim of the pregnancy and not why the agreement was entered into.

Re G (Human Fertilisation and Embryology Act 2008) [2016] EWHC 729 (Fam) concerned an administrative mistake at an IVF clinic (surprisingly - and worryingly - we were told that this was not uncommon!). A mix-up at the clinic led to the biological mother and the gestational mother signing the wrong forms. The effect of this was that the gestational mother was the twins' legal parent, but the biological mother was not. The President ruled that the biological mother was entitled to the relief sought of a declaration pursuant to s 55 of the Family Law Act that she was, in accordance with s 43 of the 2008 Act, the legal parent of the children.

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Private Law funding

Finally, Liz discussed issues in private law funding since the coming into force of LASPO in April 2013. The Act removed legal aid from private law proceedings, save in exceptional cases where domestic violence is a crucial feature. In the matter of MG and JG v JF (Child Maintenance: Costs Allowance) [2015] EWHC 564, [2016] 1 FLR 424, MG and JG were in a civil partnership and had a child together after meeting a man, JF. MG was the biological mother; JF was named on the birth certificate and was to be a legal step-parent. The father had sporadic contact, which stopped altogether when the adults fell out. He applied for contact and a specific issue order regarding education and vaccinations and a psychological assessment of the child. The child was made a party and a guardian was appointed. The women sought a costs order against JF pursuant to Schedule 1 of the Children Act 1989.

Mostyn J ordered JF to pay 80% of the costs of MG and JG and 80% of all future therapeutic costs. He concluded that this was a complex case both factually and legally, and it was important that competent representation and equality of arms were achieved. Although it was held that JF had not been unreasonable, nor had he acted in a reprehensible way, he was the only realistic source of costs funding and he could meet this without undue hardship.

Public Law

26 weeks

Jeremy Weston QC then stepped up to take us through legal developments in Public Law children issues, starting with Re T (Care Proceedings: Judgment Delay) [2015] EWCA Civ 606. In this case, we were reminded that the 26-week rule is to include the handing down of judgments. It was held that, were a case cannot be completed within 26 weeks and further time is required solely for the court to prepare its judgment, s 32 of the Children Act 1989 applies. This requires the court to make a positive decision to grant an extension of up to 8 weeks for judgment, giving reasons for that extension and a short explanation of the impact on the welfare of the child.

The second case considered was that of Re TM and TJ (Children: Care Orders) [2015] EWHC B83, which was borne out of a noted considerable increase in the number of care cases not being resolved within the 26-week statutory deadline. The court held that this trend has to stop because delay is manifestly harmful to the children concerned, and there were far too many cases where, while the issues were straightforward, the delay was caused simply by inefficiency. The court held that, if a case is going off-track, then the issue should be brought to the attention of the court as it may be possible to retrieve the position. The court reiterated that it is not just the responsibility of the local authority when cases go off the rails, and it needs to be at the forefront of everybody's minds.

Section 20

Jeremy then went through the case of Re N (Adoption: Jurisdiction) [2015] EWCA Civ 1112, [2016] 1 FLR 621, in which the President focused on s 20 and the abuse of this. In keeping with Leicester's local practice guide from January 2016 (issued by DFJ, HHJ Bellamy) and the CAFCASS Practice Guide to s 20, the case is an essential read, cautioning local authorities to take very great care if attempting to obtain s 20 agreement from mother shortly after birth.

Breach of human rights: remedies?

Jeremy then explored the case of Northamptonshire County Council v AS and Ors [2015] EWHC 199 (Fam). In this case, the local authority was ordered to pay damages of £17,000 to a child, the mother and the parental grandparents under breaches of Arts 6 and 8 Convention Rights. A Latvian mother had not been assisted by an interpreter and the judge questioned the validity of her consent to the move of a child into care. Keehan J concluded that there were errors, omissions, delays and serial breaches of court orders. He reiterated that, when so young a child is removed from the care of his mother or father, the case must be afforded the highest priority by the local authority. The use of the provisions of s 20 were, in Mr Justice Keehan's opinion, seriously abused by the local authority.

International transfer of jurisdiction

The matter of Re N [2015] EWCA Civ 1112 was then discussed, which addressed the question of in what circumstances proceedings involving non-UK citizens should be transferred to other jurisdictions. The question was whether this was in the best interest of the child and, specifically, whether the transfer was in the best interest on the outcome of the case for the child. Hale LJ agreed that the language of Art 15 is simple and clear, and needs no explanation.

Basic principles: a reminder

Jeremy then went through the matter of Re A (Application for Care and Placement Orders: Local Authority Failings) [2015] EWFC 11, [2016] 1 FLR 1 (often referred to as 'Darlington'). In this case, the President on circuit reminded practitioners of a number of fundamental principles. He reiterated that 'gone were the days' when the threshold documents could rely on 'worries' and 'concerns'. Threshold must be in the proper format: short and to the point. The local authority needs to prove the facts upon which it seeks to rely on the balance of probabilities, and must establish the link between those facts and the conclusion that the child has suffered, or is at risk of suffering, significant harm, It is important for all practitioners to be avoid the temptation of social engineering and the need to recognise the inevitable diversity in standards of parenting.

In keeping with the same theme, Jeremy then went on to discuss Re BR Proof of Facts) [2015] EWFC 41. We were told that Cobb J was strident with his criticism of the case conduct, and was also critical of non-compliance with PD 27A.


With the whistle-stop tour of both private and public law children matters done, the attendees of the seminar were given a chance to reflect on the key principles which had been explored over a glass of sparkling elderflower and a cheese puff. The seminar was very positive and gave everyone new angles on how to approach cases. The indications given of how the Supreme Court and the Court of Appeal will be approaching future applications was enlightening.

Upcoming events

Don't forget the next YRes West Mids event, 'Tax and Financial Implications Update', which takes place on Tuesday 10 May 2016 at 5.30pm at St Philips Chambers, Birmingham.

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