Monthly Archives: February 2014

‘Agreed Facts and Reasons’ post NL

Re NL (A Child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam) is a recent case in which Mrs Justice Pauffley is critical of a practice which had developed in a Family Proceedings Court of the Local Authority being expected to provide draft facts and reasons for use at hearings.
“Equally and just as importantly, it is difficult to view the Justices as having been independent and impartial if, as happened here, they simply adopted the local authority’s analysis of what their Findings and Reasons might comprise. The Court of Appeal has recently made clear that the wholesale incorporation of such a draft is impermissible: see Crinion and anor v IG Markets Ltd [2013] EWCA Civ 587. As Sir Stephen Sedley observed,

“Unequivocal acceptance of one party’s case has always posed a problem for judges. To simply adopt that party’s submissions, however cogent they are, is to overlook what is arguably the principal function of a reasoned judgment, which is to explain to the unsuccessful party why they have lost…. (T)he possibility of something approaching electronic plagiarism is new, and it needs to be said and understood that it is unacceptable. Even if it reflects no more than the judge’s true thinking, it reflects poorly on the administration of justice: for … appearances matter.”

69. Just because there may be tacit acceptance on the part of many professionals within the family justice system that the practice which operated here exists, that does not mean it is right. It is patently wrong, must stop at once and never happen again.”

A query arose in a recent case of a colleague as to whether or not a direction to provide Facts and Reasons in a case where an agreed private law order was to be made. In discussion we thought NL applied equally to agreed orders. The Family Proceedings Court agreed although it slows down the Court list, it must be right that all orders are properly justified by the Court.

What now for agreed threshold criteria?

Amina Ahmed

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Stop Child Trafficking | Our Campaigns | UNICEF UK

Stop Child Trafficking | Our Campaigns | UNICEF UK.

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“Beyond Argument” – Siblings Should Be Kept Together In Their “daily life” Blog by Rebekah Wilson

Within a space of 2 weeks I’ve been involved in 2 cases where a Local Authority sought to separate siblings in questionable circumstances. Thankfully robust Judges (in my view) helped the relevant Local Authorities back to sensible thinking. But it got me thinking about the rights of siblings to reside together, its import and how to protect it within difficult care and private law proceedings. So here is a short run down including some helpful obiter dicta in the groundbreaking case concerning habitual residence, in the matter of LC (Children) (No 2), 2014 UKSC. But we can start in 1988 (the year the Iran – Iraq war ended, the winter Olympics were hosted in Canada and the movie Twins was one of the must see),

“it really is beyond argument that unless there are strong features indicating a contrary arrangement that brothers and sister should, wherever possible, be brought up together, so that they are an emotional support to each other in the stormy waters of the destruction of their family..”

So LJ Purchas stated so eloquently in, C v C (MINORS:CUSTODY) 1988 2 FLR 291 at page 302. A private law case, this remains good authority and sets out the clear starting point.

Few waters could be more stormy for siblings than the removal from their natural parent or parents. Section 22C(8) of the Children Act 1989 provides that there is a specific duty upon the Local Authority when looking after a child (whether or not in care), when also looking after a sibling (whether or not in care) to accommodate them together so far as is reasonably practicable and consistent with their welfare. To place siblings together is a duty, and a failure to comply with this requirement, without good reason, may leave that failure open to challenge by way of judicial review ( Hershman and McFarlane Children Law and Practice F-48).

The recent Supreme Court Judgment, in the matter of LC (Children) (No 2), 2014 UKSC 1 provides some powerful dicta which helps underline the import of the sibling relationship in that case. The case of course concerned the habitual residence of four children (‘T’ a girl aged 13), ‘L’ ( a boy aged 11), ‘A’ (a boy aged 9) and ‘N’ (a boy aged 5) whose mother brought a case against the father for their return to Spain. They had moved to and resided in Spain for some months in 2012. The Supreme Court found that ( the older sisters) T’s assertions about her state of mind during her residence in Spain in 2012 were relevant to a determination whether her residence there was habitual and set aside the finding of habitual residence in respect of all 4 children.

Giving the leading Judgment Lord Wilson says;

“ But there is another feature in play: it is the presence of their older sister, T, in the daily life of all three of the boys. Ms Vivian described the four children as a very close sibling group. There was a solidarity in the presentation of the three older children to her.” (Para. 43)

And concludes,

“By a narrow margin, I find myself persuaded that the proper course is to set aside the finding of habitual residence in respect also of the three boys so that the issue can be reconsidered in relation to all four children.” (In the matter of LC (Children) (No 2), 2014 UKSC 1 at Para.43) .

Lets hope , that where they should, all siblings get to enjoy each other in their daily lives.

Rebekah Wilson
Garden Court Chambers
11th February 2014

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