Family Law Newsletter #4119.11.20
Issue #41 of Spire Barristers' Family Law Newsletter: edited by Connie Purdy and Taz Irshad; news and Case Reviews by Francesca Massarella. Francesca is due to begin pupillage at Spire Barristers in September 2021.
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.
Many children in care being let down by the state due to a damaged residential care home marketRead More
Guidance / Updates
Amendments to Family Procedure Rules Practice Directions
Separated families and contact with children in care FAQs
Government review of the family court has child protection at its core
Prospective Adopters v Sheffield City Council  EWHC 2783 (Fam)
The High Court (Family Division): Mr Justice Mostyn
-A case concerning a mandatory injunction application by prospective adopters for the return of one sibling back to their care pursuant to the Human Rights Act 1998
In March 2019, the Family Court granted a placement order in favour of the local authority for two sisters, G aged nine, and M, aged seven. The care plan was for adoption and in September 2019 the children were placed with the prospective adopters.
Unfortunately, the placement was unsettled from the start, which was amplified by lockdown being imposed in England in March 2020. There were a number of very serious incidents, including; G assaulting M in a sexual manner on at least three occasions; G lashing out at M, causing emotional and physical harm; G deliberately destroying important items of M’s, including presents from their birth family; and G self-harming on multiple occasions, including threatening to kill herself. M also self-harmed.
The prospective adopters asked for G to be placed elsewhere because they felt they could not keep M safe from G or G safe from herself. The local authority refused to separate the siblings without further assessments. The prospective adopters did not agree to the idea of respite care because they wanted ‘a solution, not a temporary fix.’
On 21st July 2020, G’s state had worsened so far that an ambulance needed to be called, which resulted in the prospective adopters sending an email to the local authority. This stated; ‘I am afraid that is it…Please come and get the girls… We are no longer able to continue.’ The children were taken into foster care in separate homes the next day but contact between the girls and the prospective adopters continued. The prospective adopters sent multiple emails from 14th August 2020 onwards, requesting that M be returned to their physical care.
The court set out the test for whether a child subject to a placement order can be returned to the local authority under S.35 Adoption and Children Act 2002 (ACA). This provides that notice must be given under s.35(1) by the prospective adopters to the local authority of their wish to return the child. The court held at paragraph 17 that ‘the test for what constitutes a notice under section 25 is a question of law but whether a specific communication satisfies that test is a question of fact.’
The prospective adopters applied for a mandatory injunction for M to be returned to their care on the basis that they withdrew their consent to M being accommodated by the local authority and the accommodation was therefore unlawful. They did not argue such in respect of G. They submitted that they did not give notice in their initial email to the local authority for the purposes of s.35(1) ACA and that this only constituted them consenting to the children being temporarily accommodated.
The court held that the email of the 21st July 2020 did constitute notice under s.35 ACA and dismissed the application under the Human Rights Act 1998 for the following reasons:
- The local authority told the prospective adopters repeatedly that it would not recommend the children being separated. The email sent by the prospective adopters indicated that they had reached a conclusion that it was best that they cared for neither of the children rather than continuing to try to care for both of the children together.
- The email sent by the prospective adopters had a tone of permanence.
- The prospective adopters had previously explicitly rejected the concept of respite care.
- Whilst the local authority did continue to involve the prospective adopters in decisions about the children, this does not change the fact that they gave notice in their email dated the 21st July 2020.
- There is little weight to the argument that the decision was supposedly temporary due to the children being returned with only a few days’ worth of clothes.
- The prospective adopters argue even now that G’s placement with them has not come to an end, yet under no circumstances did they want G back and accepted that she should be placed elsewhere.
- The submission that a social worker had represented to the prospective adopters that they continued to share parental responsibility after 21 July 2020 was unpersuasive.
The submission made by the prospective adopters that the local authority retained M unlawfully was rejected because ‘the local authority has retained M pursuant to its overarching parental responsibility.’
The court concluded by giving a recommendation that in future, ‘the decision to terminate the placement should be explicitly set out in a reasoned letter rather than being made tacitly.’
Full judgment available at: https://www.bailii.org/ew/cases/EWHC/Fam/2020/2783.html
MGB v GT  EWHC 2968 (Fam)
In The High Court (Family Division): Mr Justice Williams
-This was an appeal brought by a mother against orders granting permission to a father to temporarily remove two children from the jurisdiction. The appeal was brought on the basis that it was wrong or unjust for reasons of procedural irregularity. Appeal allowed.
The appeal in this matter concerned long-running private children proceedings concerning two children (sisters) D (aged 11) and S (aged 9).
The central issue in proceedings concerned the contact arrangements for the children with their father. The appeal before the High Court was brought by the mother against a decision of HHJ Hughes QC which permitted the father to arrange for the children to travel to the Ukraine to spend time with their paternal grandparents during the school summer holidays. Contact between the children and their father had initially been taking place on a limited basis midweek but had progressed to include overnight staying contact, although by the time of the hearing on 10 March 2020 this had regressed back to “visiting” contact as opposed to overnight contact.
Permission to appeal was granted out of time on the basis that COVID 19 had caused delays in the mother (a litigant in person) being able to file her notice. Permission was given for various reasons (see paragraph 4), inclusive of Judd J considering that the appeal appeared to have reasonable prospect of success given the history of acrimony between the parties and the fact that, for one reason or another, the children were very reluctant to see their father.
The hearing that led to this appeal took place on 10 March 2020. The hearing had been listed to determine whether the children should be joined as parties to the proceedings pursuant to rule 16.4 of the FPR which, of course, would have brought about the appointment of a Guardian and assisted the Court in ascertaining the wishes and feelings of the children. No application had been laid before the court in respect of leave to remove the children from the UK ahead of the hearing; nor, incidentally, had any evidence been filed on the issue.
At the outset of the hearing on 10 March 2020 the judge had set out the purpose of the hearing, that of course being to determine whether the children should be made parties to the proceedings with a Guardian being appointed. The mother confirmed that she supported this course of action. The father indicated that he sought for arrangements to revert to what they had been in the past. The Family Court Advisor (FCA) from CAFCASS, oddly, did not support the children becoming parties and the appointment of a Guardian. The FCA indicated that they saw no role for CAFCASS and considered there was no work that CAFCASS could do to help rebuild the relationships between the children and their father.
The Court then called the FCA and a number of Social Workers to give evidence. The Court enquired as to “where we go from here” and one Social Worker suggested that the children be permitted to go to the Ukraine to spend time with their grandparents and if it proved too traumatic for them, they could always come back. It is not apparent how the evidence led to this answer given the issues before the Court should have been restricted to whether a Guardian should be appointed, and the children made parties. The mother expressed her concern that the children might not be returned to the UK. Williams J observed that the mother’s representations as to the children being returned, their wellbeing whilst in the Ukraine and their wishes and feelings were all overridden by the momentum that built in favour of this course of action being a potential solution to what was otherwise a deadlocked position on contact. Ultimately the judge at first instance permitted the father to remove the children to the Ukraine for a period of two weeks and enjoined the mother to comply with that order by attaching a penal notice to it.
The focus of the mother’s appeal to the High Court was that the decision at first instance was wrong or unjust for reasons of procedural irregularity and Williams J set out a helpful summary of the law at paragraphs 19-22.
The mother advanced seven grounds of appeal, each of dealt were dealt with in turn by the judge, but it essence the appeal was allowed for these reasons
- Whilst the court theoretically has the power to make s.8 orders at an interlocutory hearing such as this, however the absence of notice of the application and the absence of any evidence from the father in support, the mother in response and from CAFCASS in respect of the wishes and feelings of the children. The mother was able to provide some arguments by way of response but given the absence of notice had not had the opportunity of putting any proper and coherent case. The lack of evidence and notice rendered the decision to make an order of the court’s own motion unjust by reason of a serious procedural irregularity.
- The court did not have enough information before it to determine the important issue as to whether there was a likelihood the children would not be returned to the UK. Whilst the judge did not make findings that the children would not be returned, the judge noted that there was an air of acrimony within the proceedings, clear frustration on the part of the father with the current status quo and he had chosen to relocate to the Ukraine all of which, in the judge’s mind, pointed to need for this issue to be given careful consideration. In the absence of evidence (as noted above), Williams J was clear that the court at first instance did not have enough information before it to adjudicate on the issue of a holiday properly.
- No consideration was given in the first instance judgment as to the wishes and feelings of the children and the serious impact a failure to be returned to the UK would have on them. There was, erroneously, an assumption that the children should not be consulted on this issue because they had had much involvement with the Local Authority and CAFCASS previously. It is surprising that such a position was taken given that the purpose of the hearing on 10 March 2020 had been to decide whether the children should become parties and a Guardian be appointed which would, of course, have brought to the children’s wishes and feelings to the fore. The absence of wishes and feeling having been obtained from D was a particular issue given she had been expressing views of being conflicted and finding contact very distressing. The absence of any consideration as to the wishes and feelings of the children in the context of this application was also enough to render the decision wrong.
- The first instance judge had provided no reasons for her judgment. The welfare checklist was not applied and nor was the test for temporary leave to remain.
The mother’s appeal was therefore allowed, and the court discharged the orders of 10 March 2020. Williams J remitted the issue of temporary leave to remove the children from the UK to a Circuit Judge in at the Central Family Court. Williams J did not remit the issue of the Children being made parties to the proceedings and the appointment of a Guardian, instead he dealt with those issues in judgment by joining the children and appointing a Guardian.
Full judgment available at: https://www.bailii.org/ew/cases/EWHC/Fam/2020/2968.html