Family Law

Family Law Newsletter #1616.11.18

Other News

Mrs. Justice Theis appointed Senior Family Liaison Judge

Family Justice Council’s Annual Debate

The Family Justice Council’s 12th Annual Debate will be held in Leeds on Monday the 3rd of December, from 5pm.

Deadline to apply for a space at the event is the 21st of November.

For further details: https://www.judiciary.uk/announcements/family-justice-council-12th-annual-debate-covert-recordings-in-family-law/

Case Updates

A (A Child) [2018] EWCA Civ 2240

Appeal in care proceedings involving rival SGO contenders: foster carer and extended family members in Ghana

Care proceedings concerning a child named David, aged 1 at the time of the appeal. His parents were of Ghanaian ancestry. His two elder siblings were being brought up by the grandmother under an SGO, she was unable to care for David too. The maternal family proposed David be cared for in Ghana by the grandmother’s first cousin and her husband (the Hs).

The Guardian was concerned at the possibility of David growing up away from his family in England and discussed with David’s foster carer about the possibility of her keeping him under a SGO. The foster carer and the Hs both passed the assessment meaning the Court had two contenders for a SGO. The Local Authority and the maternal family supported the Hs. The Guardian and the father supported the foster carer.

At first instance HHJ Karp made a SGO in favour of the foster carer. The Local Authority appealed. The Court of appeal allowed the appeal concluding that the Judge did not go into enough depth and detail to underpin a decision of such importance and neither the Judge’s welfare assessment or proportionality evaluation could stand. The Court of Appeal could not determine a clear conclusion what the Judge would have reached if she addressed matters in full, and therefore ordered there to be a rehearing before a Judge looking at the matter entirely afresh and independently. 

Transcript: https://www.bailii.org/ew/cases/EWCA/Civ/2018/2240.html

Re T (A Child) [2018] EWCA Civ 2136

The issue in the case was the manner in which the jurisdiction can make secure accommodation orders under Section 25 of the Children Act 1989, was to be exercised in circumstances where the child is Gillick competent and consented to the proposed care regime. The question was whether a child’s consent vitiated the court’s power to make such an order.

The child in this case was subject to a full care order. At the time of the two first instance hearings she was aged 15 but Gillick competent. At a hearing on the 23rd of January 2018, Mostyn J accepted the child consented to the arrangements, but held the consent must be authentic and enduring, which in this case, it was not. Therefore, he granted the declaration sought by the Local Authority. The placement broke down and came back before Mostyn J in March 2018. The child had been moved to a new placement and consented to being there. Mostyn J granted a deprivation of liberty declaration, granting the local authority the power to accommodate her in the identified unit. The child appealed both orders. Permission was granted on the narrow question as to whether Mostyn J was right to insist upon an authentic and enduring quality for a child’s consent to be valid. The appeal took a much broader focus as to the relevance of consent itself.

It was held by the court of appeal that the court’s powers under Section 25 of the Children’s Act 1989 is not depended upon any question of consent. Mostyn J had taken the wrong position by accepting there was a need to find a lack of valid consent before he could grant the Local Authority’s application. However, there was no basis for holding the grant of authorisation to the Local Authority notwithstanding the consent of the child was wrong and the appeal was dismissed.

Transcript: https://www.bailii.org/ew/cases/EWCA/Civ/2018/2136.html

C (An Infant), Re [2018] EWHC 2750 (Fam) (17 October 2018)

Judgment concerning withdrawal of medical treatment for two-month old child with brain abnormality.

The case concerned the medical treatment of an infant “C” who is just two months old. He is the first child of his parents “A” and “B” (the 1st and 2nd Respondents). Antenatal ultrasound scans detected evidence of severe brain abnormality or malformation of his brain and confirmed the presence of a severe cortical migration defect consistent with lissencephaly/pachygyria.

The court was being asked by the applicant to make a declaration that it is lawful and in C’s best interests to withhold certain treatment, for the baby not to be resuscitated and, instead, to be provided only with palliative care. C is separately represented by Cafcass Legal and has a court appointed guardian, who has “with a heavy heart” concluded that the declarations being sought by the NHS Trust are in C’s best interests.

C had continually and repeatedly suffered pain and distress because of his condition and the medical intervention and treatment he has required. There was no evidence before the court that would suggest a positive outcome in a trial of any drugs suggested; as with the continued use of bag and mask and CPR, it would only be delaying the inevitable while subjecting C to further pain and distress as he continues to suffer many seizures each day. C’s death is inevitable, and nothing can be done to stop it or reverse or treat his underlying condition.

C’s parents wanted medical staff to persist with treatment and/or intervention an attempt to extend C’s life but the court is objectively concerned with C’s best interests. The Judge held that C should be permitted to end his life in as comfortable, pain-free and comforted condition as it is possible to achieve. The conclusion reached was that it is in C’s best interests for the court to make the declarations sought by the NHS Trust because the intervention and invasive treatments which his parents seek confer no real benefit and subject C to continuous, and ultimately futile, pain, suffering and distress; it follows that it is lawful for the treatments to be withheld.

Transcript: https://www.bailii.org/ew/cases/EWHC/Fam/2018/2750.html

PQR (Supported Parenting for Learning Disabled Parents) [2018] EWFC 67 (30 October 2018)

Care proceedings concerning three children, in which a significant feature was that the mother is learning disabled.

Case concerned three children, aged 8, 6 and 2. The children had lived in their mother’s care until an interim care order was made following the commencement of these proceedings. A significant feature of this case is that the mother is learning disabled.

Injuries had been sustained to the youngest child whilst in the mother’s care. The mother had repeatedly engaged in relationships featuring domestic abuse which was witnessed by the children. The home conditions were poor, issues of neglect. All three children have developmental delay which the mother has been unable to address.

The Judge stressed that in deciding what is in the best interests of the children, neither they nor their mother should be prejudiced because of the mother’s learning disability. This is established law. It is established that parents should be supported by The State to the extent that it is necessary to do so and such supports the welfare of the child. The circumstances of this particular case are such that the only option which would serve the welfare of the children is long term foster care.

The Judge in the case expressed concerns whether the local authority involved were trained to recognise and deal with parents with learning disabilities. A review of their involvement revealed they were able to identify key aspects of the mother’s personality which should have made them aware the mother potentially had learning difficulties. However, the children were not accommodated until the 12th of February 2018, under the s20 of the Children Act 1989 at the request of the mother, 9 years after the first involvement of the local authority. The Judge advised the local authority to reflect on how different the first two children’s early years would have been if the mother’s disability had been recognised earlier.