Tag Archives: family law

Children giving evidence in family courts

While over 1000 children under the age of 10 give evidence to the courts in England and Wales each year, very few do so in the family courts. Ian Peddie QC argues that the interests of justice would be well-served if more did so.

The presumption against children giving evidence in the family courts was removed by the Supreme Court in March 2010 in Re W (Children) [2010] UKSC 12. This led to the Family Justice Council producing its Guidelines in relation to children giving evidence in family proceedings. Continue reading

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Delay versus Right to a Fair Trial? Rachael Rowley-Fox blogs about a Judge in a hurry

I was representing one of two parents who have schizo affective mental illness. Firstly: they both had criticism of a parenting assessment conducted by the local authority. Fair comments, such as the local authority not acknowledging their ability to show emotional warmth and show practical parenting skills as well as follow advice. Many positives in the contact with the very young baby sidelined by the local authority. They felt stigmatized due to their mental illnesses and wanted to have an independent social worker carry out a paper assessment which they hoped would be positive (unlikely under the circumstances of the case).

Nevertheless this exercise could have been carried out for relatively little expense on the legal aid certificate and well within time of the final hearing (an  independent social worker had already been identified). All parties agreed that four days would be an appropriate listing for the final hearing. Given that there were several experts, psychologists and psychiatrists for both parents, two social workers,the Guardian Ad Litem, the author of the parenting assessment and two parents with mental illness that warranted taking matters slowly. The District Judge made a decision not to allow the initial viability paper assessment by the independent social worker (stating that he had a wealth of evidence before him and it would take matters no further).

However, possibly more concerning to counsel for both parents was that the Judge refused point blank to allow four days stating that the case could almost be dealt with on submissions. The Judge allowed only one day for the final hearing. Should the issue be appealed on the basis that the parents wish to fully contest the hearing and require four days to do so? Given that they are very vulnerable people shouldn’t the Judge have exercised his discretion in a way which accommodates the right of these parents to a fair trial and one where justice should be seen to be done? His major reason was that the baby with the background of mental illness will be difficult enough to place for adoption and the panel date should not be missed. In fact one panel date would have been missed but due to the listing of the final hearing another one would have been diarised well in advance of the final hearing and after all the evidence had been filed and served, therefore, arguably not dis-advantaging the young baby.

Rachael Rowley-Fox

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Injunctions preventing local authorities from placing children for adoption

I had always thought that, once the court had awarded a placement order to a local authority, that was effectively game over so far as proceedings were concerned. Quite wrong, apparently, as is made clear in Coventry CC v PGO [2011] EWCA Civ 729.

This is a case where the children were living with foster parents in the aftermath of a placement order having been made, and the local authority was planning to place the children for adoption. The local authority had initially asked the foster parents if they wanted to adopt the children, but they had declined. It was only when the local authority were in the process of placing the children with their proposed adopters that the foster parents had a change of heart. They decided to apply for an adoption order themselves, as well as a revocation of the local authority’s placement order. However they needed to apply for leave to make both such applications and prior to that, they applied for an interim injunction preventing the local authority from removing the children from their care until their application for leave could be heard. 

In his judgement, Lord Justice Wilson highlights the fact that under rules 20.2 and 20.3 of the Family Procedure Rules 2010, an order for an injunction can be made at any time, including before proceedings are started. However the court can only grant an injunction prior to an application being made if the matter is urgent, or if it is desirable to do so in the interests of justice.

Lord Wilson also laid down proposed guidelines for the court when considering whether to grant the kind of application being made by the foster parents.

Firstly a judge should put an initial question to himself:

a)      Is there a real prospect of proving that the local authority placing the child for adoption is irrational, disproportionate or otherwise unlawful, or is in breach of the applicant’s rights, or the adopter’s, or those of the children under Article 8 ECHR?

If the answer is negative, then the judge should refuse to grant the injunction. If the answer is affirmative, then the court should consider the following further questions:

b)      Has the applicant brought the proceedings with reasonable promptness, and if not, how does their delay affect whether an injunction would now serve the interests of the children?

c)      Although in form an application only for an interim injunction, might any injunction be likely to continue (or be continued) for a substantial period of time and, if so, with what likely consequences?

d)     Might any injunction jeopardise the candidacy of the proposed adopters?

e)      Would the consequences of a refusal of an injunction be to disable the foster parents from applying to adopt the children?

f)       Is the status quo in the present case that the children are living with the foster parents or is it that they are virtually at the end of an agreed programme of removal into the home of the adopters and so would an injunction therefore more properly be regarded as preserving, or as disrupting, the status quo?

g)      Does the issue of whether to grant the injunction affect any aspect of the welfare of the children not addressed by answers to the above questions?

The case appears specific to foster parents who wish to adopt the children they are caring for, and Lord Justice Wilson, at the end of his judgment, recommends that a copy of the judgment be sent to the Children in Safeguarding Proceedings committee of the Family Justice Council, so that they can consider whether local authorities should be suggesting to foster parents, particularly short-term foster parents, the possibility that they might become the eventual adopters of the children they are caring for. However the principles contained within the judgment could equally apply to any potential 11th-hour carers for children who are subjects of a placement order, and who are as yet to be placed with adopters.

A subsidiary issue that the judgment addressed was at what stage was a child deemed to have been ‘placed’ for adoption? Was it when the adoption agency ratified the match between a child and prospective adopters and when thereafter he met them, or was he ‘placed’ for adoption only when he subsequently began to live with them? Lord Justice Wilson concluded it was the latter, thus overruling the decision of J Coulson in R(W) v Brent LBC (2010) 1 FLR 1914.

Chris McWatters

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