This is a public children law update blog to give readers a snapshot of the important cases, issues and developments from June to August 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 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:
- Inherent jurisdiction and injunctions.
- Practice points.
- Child protection records retention.
Communicate to prospective adopters about possible leave to oppose applications (Re LG (A child))
The case involved an application for leave to oppose the making of an adoption order. The change in circumstances was that the father admitted to having lied about his family circumstances and history, which meant that the paternal family was not explored during the care proceedings. On the face of the information, members of the paternal family were potential carers for the child. Leave was given as a result.
The prospective adopters consequently withdrew their adoption application. Baker J noted the effect on the prospective adopters of giving leave. He gave guidance that local authorities should inform all prospective adopters that the law allows parents to make applications for leave to oppose. This will hopefully prepare prospective adopters sufficiently if an application is made and is successful.
Applications for leave to oppose adoption cannot be transferred under BIIR (Re CB (A child))
The Court of Appeal dismissed the Latvian mother’s appeal against a decision refusing a request to transfer the application for leave to oppose the making of an adoption order to Latvia, under Article 15 of Brussels II Revised. The Latvian authorities supported the mother in her application and had indicated that they wanted the application and child transferred to Latvia for further assessment.
Munby P agreed with Moylan J’s decision that an application for leave to oppose the making of an adoption order cannot be transferred under Article 15 of Brussels II Revised. The application is a measure preparatory to adoption. The case also reiterates the need to notify foreign embassies and central authorities of proceedings concerning foreign nationals at the earliest opportunity.
Relinquished older child was sufficient reason to revoke adoption (PK v Mr and Mrs K)
A 14-year-old adopted young person applied for her adoption order to be revoked. It was granted on the basis that her adopters had relinquished their care of her when she turned six and was sent to live with adoptive relatives in Ghana. She eventually returned to the UK and became reunited with her birth mother and maternal grandmother. The adoptive parents did not participate in the revocation proceedings.
These circumstances were considered to fulfil the test for revocation of being highly exceptional and very particular. The adoption was revoked under the inherent jurisdiction of the High Court and the young person’s surname was also changed.
Inherent jurisdiction and injunctions
Wardship and anti-tipping off injunctions are appropriate for children and families going to Syria (Re M (Children))
When dealing with cases where a child or a family is making their way to Syria to join the Islamic State, wardship can be more appropriate than care proceedings, as the protection is required against potential breaches of Articles 2 and 3 of the European Convention of Human Rights (risk to life and risk of degrading or inhumane treatment). Wardship provides a much quicker and more flexible response to these fast-changing cases.
Anti-tipping off injunctions to restrict reporting are appropriate if making the court proceedings and other details public knowledge will prohibit the safeguarding purposes of the proceedings.
The judgment includes helpful template orders for engaging co-operation from another state and authorities.
Reporting restrictions can be made lifelong (Birmingham City Council v Riaz and others)
The case concerned a young person who had been sexually exploited by ten men. Injunctions were granted at a previous hearing to stop these men from approaching all unknown females under 18 years old. This hearing was concerned with the local authority’s application for a reporting restriction order to continue for the whole of the young person’s life, to keep her identity confidential. The balance between the public interest in knowing this young person’s identity, set against the potential effect of publicity on her emotional and psychological well-being and Parliament’s priority of protecting young persons and vulnerable victims fell on the side of making the lifelong order.
Restrictive injunctions should be used to protect a specific child (London Borough of Redbridge v SNA)
The London Borough of Redbridge attempted to apply for an injunction to stop SNA from making contact with any female minors. This was similar to the injunctions made in Birmingham City Council v Riaz and others  EWHC 4247 (Fam). However, the application was dismissed on the basis that the High Court’s protective powers should be used in respect of an individual child and not to protect the public in general. Making the injunction would be against the principle of separation of powers, as the judiciary would be making decisions on social policy.
It is now possible to obtain wider public protection through the police or the National Crime Agency making an application for a sexual risk order under section 122A of the Sexual Offences Act 2003.
Electronic GPS tagging should be used as an alternative to removing children from families where there is a risk of flight to Syria (Re X (Children) and Y (Children) (Emergency protection orders))
Three families were stopped from going into Syria at border controls in the UK or in Turkey. The children were all removed into foster care and were significantly suffering emotionally from the separation. The parents applied for the interim care orders to be discharged and offered to be electronically tagged as part of a package of protective measures.
The electronic tagging was accepted as being a secure measure to minimise the risk of flight and the interim care orders were discharged. The court determined that it could make an order for electronic GPS tagging.
At a subsequent hearing, it transpired that the court’s powers were only in relation to curfew radio frequency tagging. The MoJ must be consulted if GPS tagging is required for a case. Although the MoJ was willing to fund the equipment and monitoring on this occasion, there was no decision on how this could be funded in future cases.
Secure Accommodation Order first then find a placement (Re A)
In exceptional and urgent cases where a secure accommodation order is required, the local authority should make the application first and worry about finding a placement after. Bodey J endorsed this approach in a case involving a 13 year old girl who was considered to be at high risk of harming herself and others. Her problems were diagnosed by CAMHS as being behavioural rather than psychiatric and therefore she could not be detained under the Mental Health Act 1983. Bodey J confirmed that there was no legal requirement for a placement to have been identified before an application is made.
Correct procedure for conflicting mental capacity assessments (Re D (Children))
When a parent has been able to obtain a second opinion in respect of their capacity to litigate and this opinion conflicts with the first opinion, the correct procedure is to put further questions to the experts in the first instance, as allowed under Part 25 of the Family Procedure Rules 2010. An experts meeting should be considered to try and resolve the difference in opinion. If these measures do not produce any consensus, the issue should be put before the court to make a finding.
In this case, the lower court had not noted the difference in opinions and accepted the second opinion. Fortunately the independent advocate continued to work and support the mother throughout the case, which meant that the mother was not disadvantaged in the proceedings.
Consider merits of appeal when applying for time extension (Re H (Children))
Appeals should be made in a timely manner and within the time limits allowed by the procedure rules. Prompt action avoids any potential disruption to the child. However, if a party is acting as a litigant in person, he may not be aware of the time limits. A judge should make it clear to litigants in person the time limits both orally and written on the order.
In the event that an application is made for a time extension to lodge an appeal, the court should consider the merits of the appeal when deciding whether to grant the extension. If the appeal grounds are very strong, the extension should be granted.
Child protection records retention
35-year retention period for child protection records lawful (R (C) v Northumberland County Council and another)
Northumberland County Council’s record retention policy stipulated that child protection records will be kept for 35 years after a case is closed. This policy was declared justified and lawful. This was decided on the grounds that the purpose of retaining child protection records went beyond prospective litigation. Records are needed to provide full background information on families who may become involved in care proceedings, allow fuller information to be available for reviews and public inquiries and give others who were subject to child protection procedures the ability to access their records as adults to help discover their life story. Flexibility in a policy to allow earlier destruction, if requested, is required.