Family Law

Family Law Newsletter #2613.08.19

Issue #26 of Spire Barristers' Family Law Newsletter: edited by Ashley Lord and Naomi Hartridge; news and Case Reviews by Gemma Carr.

Articles from around the web, Legislation updates and Case Updates from Care Proceedings and Financial Remedy matters. Subscribe to receive Family Law Newsletter notifications or email us to give us any feedback.

‘Private law applications in family courts at an all time high’

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‘Review calls for reforms to Special Guardianships Orders’

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‘Study shows children in care are moved 9 times on average’

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‘Cohabiting couples are the fasting growing family type’

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Guidance published on submitting claims in Civil and Family Legal Aid Cases – published 24 July 2019


FGM Annual Report & Statistics – ‘More than 20,000 new cases of FGM identified over the past four years

Stability Index Report 2019 ‘Shows growing numbers of teenagers entering into care’

Case Summaries

M (Children) [2019] EWCA Civ 1364

This case concerns an appeal against an order for disclosure of the parents’ statements and position statements, filed in the early stages of care proceedings, to the police.

The parents are both British nationals.  They left the UK and travelled to Syria in 2014. In November 2018 they came to the attention of the UK authorities whilst held in immigration detention in Turkey. At that time the parents indicated an intention to return with their children to the UK. In January 2019 on arrival at Manchester Airport the parents were arrested under s41 of the Terrorism Act 2000. The children were taken into police protection under s46 of the Children Act 1989 and placed in foster care. The care proceedings commenced and an interim care order was made with respect to both children.

In February 2019 the police force tasked with investigating possible criminal activity by the parents issued an application in the Family Court seeking disclosure of the parent’s witness statements and position statements. Keehnan J allowed the police application and it is against that decision both parents appealed.

The parents appealed on the grounds that the police had insufficient evidence to establish a crime had been committed so disclosure was unnecessary and that the judge gave insufficient weight to the parents right to silence and privilege against self-incrimination.

The argument that there was insufficient evidence to justify disclosure was rejected, it was held that in all cases of alleged radicalisation of terrorism disclosure is justified.

It was clarified that the right to silence does not apply in the family court as it only relates to the parent’s position when they were being questioned by the police. In the Family Court it is the privilege against self-incrimination which directly applies. There was no incriminating material in either the witness statements or the position statements and as such the parents failed to establish their central ground of appeal based on the privilege against self-incrimination. It was also noted in the case that even if the statements did contain incriminating evidence, it would not be a complete bar to disclosure. The court would consider the Re C (A Minor) [1997] Fam 76 factors to determine if disclosure is necessary and proportionate.

The appeal was dismissed.