Public Law (Children) Update

In a world where seemingly everything about our daily lives is changing, one of the few elements of continuity is the consistent ability of the Court of Appeal and the Family Division of the High Court to hand down and publish judgments. 2020 has already seen a notable number of reported judgments that are of particular importance. Whilst I usually prefer to consign my articles in our newsletters to a small number of decisions in a particular area of interest, due to the fact that there have been a number of judgments handed down in different areas that are all essential reading for any public law practitioners, this article will take the form of a more general update.

A, B And C (Adoption: Notification of Fathers And Relatives) [2020] EWCA Civ 41 is the first decision of note. It is an extremely long judgment from Peter Jackson LJ and can best described as a masterful and authoritative history and summary, of the legal framework surrounding babies relinquished for adoption. There have been numerous reported authorities in this area over recent years and Peter Jackson LJ summarises all of the key judgments in question. The case concerned 3 appeals heard together; the outcomes of the individual appeals are not necessarily the key elements of the judgment, rather it is the confirmation of the legal position regarding relinquished babies, that we should concern ourselves with. Cases of this nature involve applications made by a local authority pursuant to Part 19 FPR 2010, seeking a ruling from the Court as to whether fathers/family members should be notified of a child’s existence.

The first key principle taken from the judgment is that when dealing with cases in which the Court is concerned with notification being provided, is that the welfare of the child is not of paramount concern. That said, because the Court is concerned with adoption, it will still have to deploy the welfare checklist from the ACA 2002 in undertaking its analysis;

‘I conclude that while child welfare, prompt decision-making and a comprehensive review of every relevant factor, including those mentioned in the checklists, are all central to the notification decision, the decision is not one that is formally governed by the provisions of s.1 of the CA 1989 or of the ACA 2002 and the welfare of the child is not the paramount consideration of the local authority and the court in this context.’

So although welfare is not a paramount consideration, it is still relevant. A child’s welfare does not ‘trump all other considerations’ ;

‘instead, there is an unbroken body of case law in which the outcome has been determined by a balancing of the rights and interests of all the individuals concerned.’

In relation to the process that should be adopted by local authorities dealing with cases where a child is relinquished for adoption, the Court was (quite correctly) not prepared to determine local authority procedures but recording the parties’ agreement in terms of appropriate procedure, in order to give ‘help’ to those facing these situations;

1. A local authority should take these steps as soon as it is notified that a mother, or mother and father, are expressing a wish that an infant is placed for adoption without notification to either the child's father or extended family:

(i) The local authority files should be checked for background information about the mother and extended family and for contacts with other relevant agencies, such as health and police.

(ii) The allocated social worker, ideally accompanied by an adoption worker, should undertake at least one visit but preferably a series of visits to the mother, or mother and father, if she/they are willing, to discuss:-

The decision to place the child for adoption.

The reasons for not notifying the child's father, or extended family, where possible gathering details about the father's background and that of the family.

The mother's background and information about her family.

Any cultural issues and how they have affected the decision made by the mother, or mother and father.

The implications of adoption for the child

The legal process required to achieve adoption

Other possible options for the care of the child

The adoption counselling service and how to access it

Whether the mother, or mother and father, require any other form of support and how that might be achieved

No assurance should be offered to a parent during the social work visit/s that notice of the birth of the child will be withheld from the father and/or extended family members.

(iii) The mother, or mother and father, must be provided with written information, where available, about the process and adoption counselling services.

(iv) Where the father is identified, the local authority should check its records for any background information known about him.

(v) The placement team must be informed immediately and it should begin the process of finding a suitable placement, preferably with 'foster for adoption' / early permanence carers.

(vi) CAFCASS must be informed as soon as the local authority is notified so that it can allocate a worker to the case for the purpose of meeting with the mother, or mother and father, to discuss and where appropriate take consent for adoption.

2. The local authority should critically examine all information that it receives and, in circumstances where the mother states the identity of the father is unknown to her, the local authority should carefully consider her statement and her explanation to consider whether there is any basis for considering that the statement might be false. If the local authority does form that view, it should consider if there is any reasonable way by which the identity of the birth father could be established.

3. The social worker should, as a matter of urgency, seek legal advice to ascertain whether the matter should be placed before the court in all cases where:

(i) the mother opposes notification to the father, if identified;

(ii) the mother knows the identity of the father but is unwilling to disclose this information;

(iii) the local authority has reason to doubt the reliability of the mother's claim that the identity of the father is unknown, or

(iv) the mother is opposed to any notification to her family or the father's family.

4. The legal advisors will need to consider and advise as a matter of urgency whether a Part 19 application or other proceedings should be issued.

5. If a decision is made that a Part 19 application is not required, the local authority should immediately notify CAFCASS, and provide detailed reasons for that decision, to allow CAFCASS to consider this information prior to meeting with the mother, or mother and father, when discussing consent under section 19 or for any later adoption application.

6. As non-means/non-merits tested public funding is unavailable to parents for a Part 19 application (and emergency funding may be difficult to access on an emergency basis even if merits and means tests are met), a local authority should provide the mother, or mother an father, with advice concerning access to independent legal advice and how that might be obtained and funded (including by the local authority considering the funding of such advice). A list of specialist solicitors available in the area should be provided.

7. Where an application is to be made, the social worker should prepare a detailed statement setting out the information gathered and providing the local authority's position regarding the wish of the mother, or mother and father, to relinquish the child without notifying the father and/or extended family members."

Local authorities are advised to adopt and follow this guidance, whilst those representing children should ensure that it has been followed. In terms of the situation when an application pursuant to Part 19 is issued, the Court noted that there was a need for urgency in dealing with it, for obvious reasons given the nature of the application and the issue of delay. Peter Jackson LJ listed the following matters as those that would require attention;

1. Identity of judge: If the application is under Part 19, it must be heard in the High Court and appropriate listing arrangements must be made. Upon issue, the application should immediately be referred to the DFJ for consultation with the FDLJ as to whether the application should be allocated to a High Court Judge or a section 9 Deputy High Court judge.

2. Identity of parties: (a) It is not mandatory for a respondent to be named in the application, although it will usually be appropriate for the mother to be identified as a respondent; (b) directions should be given on issue joining the child as a party and appointing a CAFCASS officer to act as Children's Guardian in the application; (c) neither a father (with or without parental responsibility) nor members of the wider maternal/paternal family are to be served with or notified of the application or provided with any of the evidence filed in support of an application.

3. Case management: The application should be listed for an urgent CMH, ideally attended by the CAFCASS officer. At the hearing, consideration should be given to the need for any further evidence, the filing of the Guardian's analysis and recommendations, the filing of written submissions and the fixing of an early date for the court to make a decision.

4. Receiving the mother's account: It is a matter for the court as to whether it should require written or oral evidence from the mother. Given the importance of the issue, the court will normally be assisted by a statement from the mother, whether or not she gives oral evidence, rather than relying entirely upon evidence from the local authority at second hand.

5. The listing of the hearing of the application should allow time for whatever evidence and argument may be necessary, and for a reasoned judgment to be given. Even allowing for the pressure on court lists, these decisions require prioritisation.

Pater Jackson LJ then very helpfully summarised the principles governing decision (by adoption agencies or by the Courts) as to whether a putative father or relative should be informed of the existence of a child who might be adopted;

‘1. The law allows for 'fast-track' adoption with the consent of all those with parental responsibility, so in some cases the mother alone. Where she opposes notification being given to the child's father or relatives her right to respect for her private life is engaged and can only be infringed where it is necessary to do so to protect the interests of others.

2. The profound importance of the adoption decision for the child and potentially for other family members is clearly capable of supplying a justification for overriding the mother's request. Whether it does so will depend upon the individual circumstances of the case.

3. The decision should be prioritised and the process characterised by urgency and thoroughness.

4. The decision-maker's first task is to establish the facts as clearly as possible, mindful of the often limited and one-sided nature of the information available. The confidential relinquishment of a child for adoption is an unusual event and the reasons for it must be respectfully scrutinised so that the interests of others are protected. In fairness to those other individuals, the account that is given by the person seeking confidentiality cannot be taken at face value. All information that can be discovered without compromising confidentiality should therefore be gathered and a first-hand account from the person seeking confidentiality will normally be sought. The investigation should enable broad conclusions to be drawn about the relative weight to be given to the factors that must inform the decision.

5. Once the facts have been investigated the task is to strike a fair balance between the various interests involved. The welfare of the child is an important factor but it is not the paramount consideration.

6. There is no single test for distinguishing between cases in which notification should and should not be given but the case law shows that these factors will be relevant when reaching a decision:

(1) Parental responsibility. The fact that a father has parental responsibility by marriage or otherwise entitles him to give or withhold consent to adoption and gives him automatic party status in any proceedings that might lead to adoption. Compelling reasons are therefore required before the withholding of notification can be justified.

(2) Article 8 rights. Whether the father, married or unmarried, or the relative have an established or potential family life with the mother or the child, the right to a fair hearing is engaged and strong reasons are required before the withholding of notification can be justified.

(3) The substance of the relationships. Aside from the presence or absence of parental responsibility and of family life rights, an assessment must be made of the substance of the relationship between the parents, the circumstances of the conception, and the significance of relatives. The purpose is to ensure that those who are necessarily silent are given a notional voice so as to identify the possible strengths and weaknesses of any argument that they might make. Put another way, with what degree of objective justification might such a person complain if they later discovered they had been excluded from the decision? The answer will differ as between a father with whom the mother has had a fleeting encounter and one with whom she has had a substantial relationship, and as between members of the extended family who are close to the parents and those who are more distant.

(4) The likelihood of a family placement being a realistic alternative to adoption. This is of particular importance to the child's lifelong welfare as it may determine whether or not adoption is necessary. An objective view, going beyond the say-so of the person seeking confidentiality, should be taken about whether a family member may or may not be a potential carer. Where a family placement is unlikely to be worth investigating or where notification may cause significant harm to those notified, this factor will speak in favour of maintaining confidentiality; anything less than that and it will point the other way.

(5) The physical, psychological or social impact on the mother or on others of notification being given. Where this would be severe, for example because of fear arising from rape or violence, or because of possible consequences such as ostracism or family breakdown, or because of significant mental health vulnerability, these must weigh heavily in the balancing exercise. On the other hand, excessive weight should not be given to short term difficulties and to less serious situations involving embarrassment or social unpleasantness, otherwise the mother's wish would always prevail at the expense of other interests.

(6) Cultural and religious factors. The conception and concealed pregnancy may give rise to particular difficulties in some cultural and religious contexts. These may enhance the risks of notification, but they may also mean that the possibility of maintaining the birth tie through a family placement is of particular importance for the child.

(7) The availability and durability of the confidential information. Notification can only take place if there is someone to notify. In cases where a mother declines to identify a father she may face persuasion, if that is thought appropriate, but she cannot be coerced. In some cases the available information may mean that the father is identifiable, and maternal relatives may also be identifiable. The extent to which identifying information is pursued is a matter of judgement. Conversely, there will be cases where it is necessary to consider whether any confidentiality is likely to endure. In the modern world secrets are increasingly difficult to keep and the consequences, particularly for the child and any prospective adopters, of the child's existence being concealed but becoming known to family members later on, sometimes as a result of disclosure by the person seeking confidentiality, should be borne in mind.

(8) The impact of delay. A decision to apply to court and thereafter any decision to notify will inevitably postpone to some extent the time when the child's permanent placement can be confirmed. In most cases, the importance of the issues means that the delay cannot be a predominant factor. There may however be circumstances where delay would have particularly damaging consequences for the mother or for the child; for example, it would undoubtedly need to be taken into account if it would lead to the withdrawal of the child's established carers or to the loss of an especially suitable adoptive placement.

(9) Any other relevant matters. The list of relevant factors is not closed. Mothers may have many reasons for wishing to maintain confidentiality and there may be a wide range of implications for the child, the father and for other relatives. All relevant matters must be considered.

7. It has rightly been said that the maintenance of confidentiality is exceptional, and highly exceptional where a father has parental responsibility or where there is family life under Article 8. However exceptionality is not in itself a test or a short cut; rather it is a reflection of the fact that the profound significance of adoption for the child and considerations of fairness to others means that the balance will often fall in favour of notification. But the decision on whether confidentiality should be maintained can only be made by striking a fair balance between the factors that are present in the individual case.’

It goes without saying that every local authority (in its capacity as an adoption agency) and CAFCASS officer will need to familiarise themselves with the key elements of the guidance set out above.

The next case of note deals with interim separation; C (A Child : Interim Separation) [2020] EWCA Civ 257. It is not necessary for me to rehearse the facts of the case, with the central point being that the case adds an additional factor into the well established test for interim separation of a child from its carers. The test advocated by the Court of Appeal is as follows;

(1) An interim order is inevitably made at a stage when the evidence is incomplete. It should therefore only be made in order to regulate matters that cannot await the final hearing and it is not intended to place any party to the proceedings at an advantage or a disadvantage.

(2) The removal of a child from a parent is an interference with their right to respect for family life under Art. 8. Removal at an interim stage is a particularly sharp interference, which is compounded in the case of a baby when removal will affect the formation and development of the parent-child bond.

(3) Accordingly, in all cases an order for separation under an interim care order will only be justified where it is both necessary and proportionate. The lower ('reasonable grounds') threshold for an interim care order is not an invitation to make an order that does not satisfy these exacting criteria.

(4) A plan for immediate separation is therefore only to be sanctioned by the court where the child's physical safety or psychological or emotional welfare demands it and where the length and likely consequences of the separation are a proportionate response to the risks that would arise if it did not occur.

(5) The high standard of justification that must be shown by a local authority seeking an order for separation requires it to inform the court of all available resources that might remove the need for separation."

Point 5 is the additional point of note. It highlights the ‘high standard’ of justification required and the fact that a local authority needs to set out all available resources in terms of safeguarding and supervision and why, despite the provision of the same, a child’s immediate safety would remain at risk. It is in some respects, adopting the approach advocated by the Supreme Court in Re B in relation to the need for local authorities to demonstrate that permanent placement with a birth parent is not appropriate, despite the maximum level of support and resources that can be made available in order to support the same. This judgment accordingly provides a further line of argument for those representing parents (and children) in cases where interim removal is being advocated and opposed.

The next judgment of note is that of the Court of Appeal in K (Forced Marriage: Passport Order) (Rev 2) [2020] EWCA Civ 190, with the President of the Family Division providing the lead judgment. Myself and Patrick Gilmore have found ourselves dealing with an increasing volume of cases involving both Forced Marriage Protection Orders (‘FMPOs’) and Female Genital Mutilation Protection Orders (‘FGMPOs’). As my practice is split between children cases and cases heard in the Court of Protection, I have further found there to be a notable overlap between FMPO applications and the Court of Protection proceedings (the reasons for this will be obvious, namely the interrelated issues of capacity and consent). This judgment provides what can best be described as the authoritative legal approach to be taken in relation to the making of FMPOs and any attached conditions. The facts are unfortunately, all too familiar to those who deal with these applications on a regular basis; K was a young single woman who had contacted her local police force, alleging that her family were seeking to force to marry her against her will and that she had been threatened with murder should she refuse. This resulted in the police applying for and obtaining an FMPO, initially on an ex-parte basis. Following a 3 day contested hearing, the Judge at first instance ruled that the FMPO should remain in force and that K’s passport and travel documentation should be held by the police ‘until further order’. The named respondents (presumably all family members) were prohibited from applying for any new travel documentation on K’s behalf.

The sequence of events that followed involved K leaving the family home, supported by the local authority, and K’s mother then dying, with the funeral to be held in Pakistan. As K was unable to travel for the funeral due to the travel prohibitions within the FMPO, she applied on an urgent basis to discharge the FMPO and, in particular, the passport order. Her application was refused and K appealed this decision. The appeal was successful.

The President’s judgment merits reading in full and sets out the key principles underpinning FMPO applications at paragraphs 21-44. The central points, which include an analysis of the highly abusive nature of forced marriage, are as follows;

  1. Forced marriage is a fundamental abuse of human rights, a form of domestic abuse and, since 2014, a criminal offence in England and Wales (FLA 1996, s 63CA).
  2. The abusive nature of a forced marriage does not begin and end on the day of the marriage ceremony. Rather, the marriage forms the start of a potentially unending period in the victim's life where much of her daily experience will occur without their consent and against their will, or will otherwise be abusive. In particular, the consummation of the marriage, rather than being the positive experience, will be, by definition, a rape.
  3. Against that perspective it must be accepted that a forced marriage is likely to include behaviour sufficient to breach ECHR Article 3 which provides that "no one shall be subjected to torture or to inhuman or degrading treatment or punishment."
  4. The legislation is cast in the widest and most flexible terms. FLA 1996, s.64A simply gives the Court jurisdiction to make an order for the purposes of protecting a person from being forced into a marriage, or from any attempt to do so, or protecting a person who has been forced into a marriage. The Court must "have regard to all the circumstances including the need to secure the health, safety and wellbeing of the person to be protected" (s 63A(2)).
  5. There is no threshold criteria or checklist of factors that the Court is required to consider before making such an order.
  6. The Court has jurisdiction to make an FMPO in relation to an adult who does not lack capacity.
  7. In cases where there is potential conflict between Article 3 and Article 8 rights, the Court must strive for an outcome which takes account of and achieves a reasonable accommodation between the competing rights. The need to accommodate the Article 3 and Article 8 rights is likely to be at the centre of most, if not all, FMPO cases. Any case in which the Judge's order imposes a permanent travel ban upon a person, preventing them from leaving the UK, presents the conflict, between the need to protect the individual from serious harm against the individual's freedom to conduct their private life as they wish. The issue of proportionality is therefore key;
  8. ‘On one view, "proportionality" may seem to be an inappropriate concept when the court is considering an absolute Convention right such as Article 3. However, in cases where there has not yet been a forced marriage, the court will not be dealing with the certainty that future harm will take place but, rather, the assessment of the risk that it may do so. Where protective measures will necessarily limit the freedom of the protected person and others to enjoy other Convention rights, it will be necessary to evaluate, with a degree of precision, the extent of protection that is necessary in each individual case. In this regard, the exercise to be conducted in a FMPO application is broadly similar to that undertaken where the risk of future harm arises from the potential for Female Genital Mutilation ("FGM"). In that context, this court (Irwin, Moylan and Asplin LJJ) considered the imposition of a "worldwide travel ban" in an FGM case in Re X (A Child: FGMPO) (Rev 2) [2018] EWCA Civ 1825.
  9. Further, in relation to the issue of proportionality, the President noted that the Court of Appeal in Re X set out the following principles, which could and should be applied to FMPO cases;
  10. a) As with a FMPO under FLA 1996, Part 4A, a Court's powers to make a FGM Protection Order under the Female Genital Mutilation Act 2003 are in very broad terms and the 2003 Act provides no real guidance as to the approach the court should take when determining whether and, if so, in what manner to exercise its powers;
  11. b) Although Article 3 is an "absolute" right, the concept of "proportionality" is not irrelevant where the duty upon the State is to protect people from the harm which others may do to them, in distinction to the direct actions of the State's own agents to take life or seriously ill-treat people (E v Chief Constable of the Royal Ulster Constabulary [2009] 1 AC 536);
  12. c) There is, thus, a distinction between the State's negative and positive obligations under Article 3 as described by Baroness Hale in E v Chief Constable of the RUC (paragraph 10);
  13. "…nevertheless, there must be some distinction between the scope of the State's duty not to take life or ill-treat people in a way which falls foul of Article 3, and its duty to protect people from the harm which others may do to them. In the one case, there is an absolute duty not to do it. In the other, there is a duty to do what is reasonable in all the circumstances to protect people from a real and immediate risk of harm. Both duties may be described as absolute but their content is different. So once again it may be a false dichotomy between the absolute negative duty and a qualified positive one…"
  14. Therefore, whilst there can be no derogation from a person’s Article 3 rights, the interference with their Article 8 rights, and those of their family, must be limited to that which is necessary to protect that person’s Article 3 rights. On this basis, the Court must undertake a full analysis considering the proportionality of the making of an FMPO and any accompanying prohibitions on travel; any order or accompanying prohibition must be limited to what is necessary in order to protect a person’s Article 3 rights and it must be demonstrated that no lesser intrusive measure is available or appropriate.

The President then provided what he neatly terms to be a ‘route map’ to judgments in FMPO cases;

Stage One is for the court to establish the underlying facts based upon admissible evidence and by applying the civil standard of proof. The burden of proof will ordinarily be upon the applicant who asserts the facts that are said to justify the making of a FMPO.

At Stage Two, based on the facts that have been found, the Court should determine whether or not the purpose identified in FLA 1996, s 63A(1) is established, namely that there is a need to protect a person from being forced into a marriage or from any attempt to be forced into a marriage, or that a person has been forced into a marriage.

At Stage Three, based upon the facts that have been found, the Court must then assess both the risks and the protective factors that relate to the particular circumstances of the individual who is said to be vulnerable to forced marriage. This is an important stage and the court may be assisted by drawing up a balance sheet of the positives and negatives within the circumstances of the particular family in so far as they may relate to the potential for forced marriage. At the conclusion of Stage Three, the court must explicitly consider whether or not the facts as found are sufficient to establish a real and immediate risk of the subject of the application suffering inhuman or degrading treatment sufficient to cross the ECHR, Article 3, threshold.

At Stage Four, if the facts are sufficient to establish a risk that the subject will experience conduct sufficient to satisfy ECHR, Article 3, the Court must then undertake the exercise of achieving an accommodation between the necessity of protecting the subject of the application from the risk of harm under Article 3 and the need to respect their family and private life under Article 8 and, within that, respect for their autonomy. This is not a strict "balancing" exercise as there is a necessity for the court to establish the minimum measures necessary to meet the Article 3 risk that has been established under Stage Three.

The President concluded by cautioning against the making of ‘open-ended’ orders in all but the most serious cases;

‘In assessing the length of time that any provision within a FMPO is in force, the court should bear in mind that the circumstances within any family, and relating to any individual within such a family, may change. It is unlikely in all but the most serious and clear cases that the court will be able to see far enough into the future to make an open-ended order which will remain in force unless and until it is varied or terminated by a subsequent application. In other cases, the court should look as far as it can in assessing risk but no further. The court should first consider whether a finite order adequately meets the risk, with the consequence (if it does) that the applicant for the order will have to seek a further order at the end of the term if further protection is then needed. A date should be fixed on which the order, or a specific provision within it, is reviewed by the court.’

Adding to this, he also noted in relation to passport orders, that;

‘the authorities establish that an open-ended passport order or travel ban should only be imposed in the most exceptional of cases and where the court can look sufficiently far into the future to be satisfied that highly restrictive orders of that nature will be required indefinitely. In all other cases, the court should impose a time limit when making such orders.’

FMPOs remain a bespoke and complex area of law and it is essential that local authorities in particular, take early advice in cases where there is a suspicion of forced marriage. The multi-agency guidance for dealing with forced marriage is essential reading for all social work professionals and local authority solicitors. It can be found using the following link;

A final case of interest is Re I (Children: Child Assessment Order) [2020] EWCA Civ 281. I have included this mainly because it is a Court of Appeal judgment dealing with child assessment orders, which in my view are somewhat underused by local authorities, particularly in cases where medical assessments are likely to assist in concluding whether more interventionist orders should be sought, for example cases in involving suspected FGM. The case involved purported radicalisation and the assessment sought was from an intervention provider, designed to ascertain whether radicalisation had taken place and if so, the resulting impact upon the subject children. This represents a good example of how these orders are bespoke and can be applied to cases with somewhat unusual/unique facts. I have run out of space to provide a fuller analysis here but would suggest the Peter Jackson LJ’s judgment is read in full.

Michael jones