This is a public children law update blog to give readers a snapshot of the important cases, issues and developments from February to May 2015. Please feel free to submit a comment below or send us an Ask query if you have any views on the cases, issues, or legal development that are covered or if you think we have missed something that should be brought to the attention of child care law practitioners.
In this post, we look at the following:
- Conducting appeals.
- Practice guidance.
- Care options.
- Authorising the deprivation of a child’s liberty.
Conducting appeals
Family appeals must follow FPR Part 30 and no court duty to consider children’s oral evidence (Re D (Children))
Family Procedure Rules 2010, Part 30 governs how appeals involving family matters should be lodged and dealt with. The court should insist on compliance with the rules, which the Court of Appeal considered to be easy to follow and provided all parties with a fair process and hearing. This applies to both litigants in person and to those with legal representation. An additional point in the case concerned the need for a court to evaluate whether a child should give oral evidence when the threshold document is based on the child’s allegations. The Court of Appeal confirmed that there was no duty to do so, although it would be good practice.
Stays of interim care order must allow sufficient time for appeal (Re T (Children))
When a court makes an interim care order endorsing a care plan for interim removal of children where there is no emergency, the court should (if applied for) grant a stay of the order. The stay must be long enough for the respondent parent or kinship carer to lodge an appeal. MacFarlane J suggested that a stay of two or three working days was appropriate in this particular case.
Costs on appeal in children cases follow established general rules (Re S (A child))
There is no difference to the rules about when costs should be awarded whether the case is at first instance or appeal level. Costs should only be made against a party who has exhibited reprehensible behaviour or has taken an unreasonable stance. How a party has funded their legal costs should make no difference to the question of costs. In care proceedings, every party is trying to achieve the best outcome for the child. Parties should not be deterred from putting their case and assisting the court because of a fear of costs. Local authorities may exceptionally pay costs if the appeal costs would cause real hardship to a parent who has the child in their care.
Communicate about potential appeals after final hearing (Re S (A child) (No 2))
After a final decision has been made in care proceedings, a party that plans to appeal the decision should inform the other parties in the case about the intention to appeal and continue to inform about other steps taken to progress the appeal. If the matter concerns prospective adopters, the local authority should take steps to inform them of any appeal at the earliest opportunity. Such steps help to manage expectations and minimise any distress about delay for the child.
Leave to oppose adoption comes first and adoption orders are unconditional (Re W (A child))
Where there are multiple applications in proceedings that include an application for leave to oppose an adoption order, the correct procedure is for the court to deal with the leave application first then go on to decide the other applications. It was clarified that an adoption order cannot be made subject to a condition being satisfied. In this case there was a condition that the boy had to undergo circumcision. To put a condition onto an adoption order is unsatisfactory, as there would be no certainty about when the child becomes adopted. In this case, circumcision became impossible as medical practitioners would not operate on the boy because of his age and there was no medical reason for the operation. The boy would never become adopted even though adoption was otherwise in his best interests.
Practice guidance
Translate on necessary documents and keep bundles to 350 pages (Re L (A child))
Practice Direction 27A of the Family Procedure Rules 2010 in respect of court bundles must be complied with. Court bundles must be a maximum of 350 pages unless the court has given leave for the bundle to contain more pages. It was emphasised that only one, one-sided bundle should be sent to court.
In addition, where documents need to be translated for a party, only necessary documents should be translated to reduce translation costs. The rest of the evidence should be summarised by the party’s legal representative. A party does not need to know the fine detail of the evidence. He only needs to understand the case as a whole.
Arrange transport and placement before applying for collection order (London Borough of Brent v K)
Local authorities applying for a collection order under the Child Abduction and Custody Act 1985 must be prepared to provide the court with details for how the child will be transported and where the child will be placed once found. Out of hours teams must be aware of the arrangements, which should be clear on the local authority’s computer system. Failure to do so is likely to lead to children being unnecessarily in police custody for long periods, which HHJ Newton considered to be abuse.
Care options
Guidance on ruling out unrealistic long-term care options (Re S (A child))
The court only needs to consider the realistic options for a child’s long-term care when making a final decision in care proceedings. Unrealistic long-term care options can be ruled out at a preliminary stage. Judges have to exercise caution when contemplating making a decision to rule an option out. The pros and cons of an option must be weighed, but the negatives must “clearly outweigh any positive factors” that would pose an imminent risk of physical or emotional harm to the child.
Revocation of placement order: Recent change of circumstances is relevant (Re G (A child))
The first part of the test for a revocation of a placement order is whether there has been a change of circumstances. The test does not require that the change has to be of a long nature to be sufficient for the court to consider the second part of the test, namely whether it is in the child’s welfare for the placement order to be revoked. To require an established change would put gloss to the words of the statute. The mother’s six month change in seeking help for her personality difficulties was a change in circumstances even if this change was relatively recent.
Authorising the deprivation of a child’s liberty
Parents can consent to a child’s deprivation of liberty (Re D (A child: deprivation of liberty))
A child will be deprived of their liberty if when bearing in mind a child’s age, maturity, behaviour and other particular characteristics, the child was under constant supervision and control. In this case the child was 15 years old with a diagnosis of Attention Deficit Hyperactivity Disorder, Asperger’s syndrome, Tourette’s syndrome and mild learning disability. The recommendation from an assessment was that the boy required a locked residential placement with direct observation and one-to-one support in the community. In circumstances where the child does not have the competence to decide and consent to a deprivation of liberty, the child’s parents can exercise their parental responsibility to consent to the deprivation of liberty. There is no need for the court to make a declaration in such circumstances.