Family Law

Family Law Newsletter #1517.10.18

Proposed updates on Domestic Violence and Abuse Bill

‘Alleged abusers cross examining their victims set to be banned in the Family Courts’

‘The All-Party Parliamentary Group sets out key requirements for Domestic Abuse Bill’ Full Report [PDF]

Case Updates

Recent case updates and summaries:

B (A Child) [2018] EWCA Civ 2127

Mother’s appeal from a fact-finding decision given in care proceedings, concerning injuries sustained by one-year-old child.

The appeal was brought on behalf of the mother on two grounds:

1. The finding against her was unfair because:

i) No other party was putting an explicit case that she should be identified as the sole perpetrator; and

ii) She had not been questioned about certain matters that the recorder relied upon in reaching his conclusion; as a result, she was deprived of the opportunity to answer the case against her.

2. That the recorder applied the wrong legal test in that instead of considering each parent individually and asking whether the evidence established a probability they were responsible, he instead impermissibly compared one parents against the other and convicted the mother because he in effect found her to be the likelier perpetrator.

The Court of Appeal held there was nothing in either ground of appeal. The recorder had not misapplied the law and his evaluation of the evidence led him to a reasoned conclusion that was well within the range of possibilities open to him.


B-P (Children – Adoption or Fostering) [2018] EWCA Civ 2042

Appeal concerning a court’s decision not to grant Placement Orders in respect of three children under 5 years of age and making final care orders only having concluded that they could not be returned to the care of their parents.

The local authority appealed the decision concerning the Placement Orders sought. Peter Jackson LJ delivered the lead judgment and allowed the appeal. He considered four specific ways in which the Judge erred in his judgment:

  1. He did not assess the effect on the individual children of each placement option
  2. He entirely failed to place the advantages of adoption and disadvantages of long term fostering into the balance
  3. He overstated the value to the children of a continuing relationship with their parents
  4. He was wrong to give such weight that the local authority is unable to guarantee an adoptive placement for the three girls together

The Court of Appeal found that the recorder had failed to give any weight to the potential benefits of adoption whether together or separately, nor did he confront the evident potential drawbacks of long term foster care.

The Court of Appeal decided the matter should be remitted for a re-hearing by a different Judge.


O (A child: No Available Secure Accommodation) [2018] EWFC B60

Application for secure accommodation order. No placements available.

This case concerns a 16-year-old boy, referred to as child O. The London Borough of Bromley hold a care order for O since September 2017 as he is beyond parental control. He pursues gang associations in South London, linked to county line drug dealing and is at high risk of harm. He had a psychiatric assessment in 2017 which identified his need for therapy to assist him with his disruptive childhood experiences and consequent conduct disorder.

The application is brought against a background of repeated periods missing from his placement throughout 2018, combined with property damage, threats to kill, threats to send gang members after professionals and gang-related incidents. In mid-August, O absconded after 3 weeks of placement outside of London. In late August 2018 he was arrested when class A drugs and a machete were found in the car he was in. he was not charged but placed in police custody overnight.

As a result of that history and the late August incident in particular, a secure accommodation order was sought by the local authority and was granted for 14 days on 24.8.18 by Her Honour Judge Major, albeit that no beds were available and he was not therefore placed in any secure unit.  The case was then listed before Her Honour Judge Lazarus on 5.9.18.

Her Honour Judge Lazarus states she has been driven not to grant a secure accommodation order for a child who needs one due to the unavailability of appropriate places. The case represents another example of the state failing a child in need and highlights the impact of there being far too few secure accommodation unit places for children. The social workers plan to continue with their assiduous and thankless task of trawling for a suitable secure placement for O, and intend to act upon it if they do.  However, it is a possible outcome that they will not succeed in that search. Her Honour Judge Lazarus stated this is an unacceptable situation in that the opportunity to help and ensure the safety of the child is being lost.

The judgment of this case has been directed to be sent to the Secretary of State for Education, the Secretary of State for Communities and Local Government, and to the Children’s Commissioner for England.