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Public children law digest (July-September 2017)

This is a public children law update blog to give readers a snapshot of the important cases, issues and developments from July to September 2017. 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 developments 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:

  • Public Law Reform Project.
  • Treatment of criminal findings.
  • Special guardianship orders.
  • Kinship placements.
  • Issuing proceedings.

Public Law Reform Project

On 15 September 2017, Her Majesty’s Courts and Tribunals Service and the President of the Family Division jointly published, “E-working in the family jurisdiction and our plans for reform“. The briefing states that the Public Law Reform Project (PLRP) will be launched in October 2017 with no given end date. It is hoped that the PLRP will pioneer future products for full electronic working across family proceedings and ultimately lead to a paperless process from issue of proceedings to final resolution. The software solutions should be released in Spring 2018 and should include electronic filing and storage of documents, and the ability to view and present documents in courtrooms.

Status of criminal findings (Wolverhampton City Council v JA and others [2017] EWFC 62)

Criminal convictions, that are relevant, are admissible as proof of findings sought in care proceedings (section 11, Civil Evidence Act 1968). Criminal findings can be made when the defendant has been found in the criminal proceedings to be unfit to plead.

Keehan J clarified that criminal findings cannot be used as proof of a finding. The family court will need to make its own findings from the evidence in the care proceedings and transcripts from the criminal trial.

Special guardianship orders: recognition in Scotland (Medway Council v MI and others [2017] EWFC 59)

Theis J confirmed that special guardianship orders (SGOs) are recognised and enforceable in Scotland. SGOs are regarded as orders under Part 1 of the Family Law Act 1986 (section 1(1)(aa)). They are therefore automatically recognised as though they were made in the Scottish courts.

However, to enforce a SGO, the SG should make a registration application under section 27 of the FLA 1986 following the procedure under Part 32 of the Family Procedure Rules 2010. The application should be issued in the English court that made the SGO.

Kinship placements

Provide kinship carers with information about financial assistance early (LG&SCO reference number: 16 005 08)

The Local Government & Social Care Ombudsman (LG&SCO) found the Royal Borough of Greenwich (RBG) at fault for not informing a maternal grandmother about the financial assistance she could have requested when she became the child’s carer. RBG’s policy was that financial assistance would be available if the child would have otherwise been taken into foster care, had the kinship carer not come forward.  The information was not given despite the maternal grandmother having indicated on a few occasions that she was struggling financially. The financial assessment was eventually undertaken four years later.

The LG&SCO recommended that RBG pay the maternal grandmother at the same rate as a kinship foster carer, with payments backdated to March 2011. He also recommended compensation at £500 and an apology. Local authorities should take note of what is expected of them in what would be regarded as a private family arrangement.

No presumption that family placements trump foster care (ML v Norway (43701/14) [2017] ECHR 772)

The European Court of Human Rights (ECtHR) found that the Norwegian courts had not breached Article 8 of the European Convention on Human Rights in a case where the child was placed in long-term foster care rather than with the maternal grandmother, who already had the care of the child’s older sibling.

While the starting point was that a family placement would be beneficial to the child, the court must look at the other options, in accordance with domestic law. The child’s interest must come before all other considerations.  The Norwegian court had sufficiently considered the options, after hearing evidence from 14 witnesses and a psychologist.

Late identification of alternative carer requires exceptionally good reason (Re L [2017] EWHC 2081 (Fam))

Keehan J refused permission for further family and friends to be assessed as potential carers. The case had progressed beyond the 26-week limit. Directions were made at a previous directions hearing for the family to challenge earlier assessments made of potential carers, but no formal challenge had been made.

Keehan J clarified that an exceptionally good reason is required for the court to entertain a very late challenge and identification of potential carers. Further assessments would cause detrimental delay to the court’s ability to make final decisions about the child’s future.

When to issue certain proceedings

Unaccompanied asylum-seeking children: no pressure to issue (Re J [2017] EWFC 44)

Jackson J (as he then was) assured local authorities that they did not need to feel the pressure to issue care proceedings for all unaccompanied asylum-seeking children. Without prescribing when it is appropriate to do so, he considered that care proceedings may be more suitable for younger children. Accommodation under section 20 of the Children Act 1989 may be sufficient to safeguard the needs of older children.

Establishing habitual residence and therefore the court’s jurisdiction to make orders in respect of an unaccompanied asylum-seeking child should not pose a difficulty if care proceedings are issued, because the child will either be habitually resident in the UK or have no habitual residence.

Apply to return case to court before any making a potentially unlawful removal (Gloucestershire County Council v A mother and others [2017] EWFC B47)

When a local authority is looking to remove a child who has been placed in their parent’s care under a care order, they should give proper notice of the removal plan to the parent. Local authorities should be aware that an application to discharge a care order does not attract automatic legal aid. Parents who are also vulnerable people will be less able to bring an application.

If the local authority does not make an application to the court to approve the removal in such circumstances, it would find itself in breach of the parent and child’s rights under Articles 6 and 8 of the European Convention on Human Rights. Applications should be made in accordance with Part 18 of the Family Procedure Rules 2010.

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