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Public children law digest (October – December 2017)

This is a public children law update blog to give readers a snapshot of the important cases, issues and developments from October to December 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:

  • Vulnerable persons and children in proceedings.
  • Consent.
  • Procedure and drafting.

Vulnerable persons and children in proceedings

Part 3A and Practice Direction 3AA of the Family Procedure Rules 2010

Part 3A and Practice Direction 3AA of the Family Procedure Rules 2010 (FPR) were made on 23 October 2017 and came into force on 27 November 2017. These imposed new duties to ensure that a vulnerable person is given the opportunity to participate in proceedings or give to the court their best evidence. They introduce the requirements to consider the listing of ground rules hearings and make participation directions in appropriate cases. The relevant factors to consider and possible measures that could be taken are listed.

Learning difficulties guidance (A Local Authority v G (Parent with learning disability) [2017] EWFC B94)

The Department for Education published its “Good practice guidance on working with parents with a learning disability” in 2007. The Working Together with Parents Network updated this guidance in 2016. HHJ Dancey was critical of the local authority for not using staffed who were trained to work with people with learning disabilities and for not following the updated guidance when assessing a mother who had a low IQ, was partially deaf and suffered from depression. Despite these criticisms, the evidence was sufficient to make findings about the mother’s parenting capacity.

Also of interest is HHJ Dancey’s easy read judgment, which was written for the parents. The much shorter and simple form of the judgment should be noted and possibly adopted in other cases concerning parents with learning disabilities.

Preparatory work necessary for judges to meet children (London Borough of Brent v D and others [2017] EWHC 2452 (Fam))

There is currently no corresponding part of the FPR for children’s participation in proceedings. It may be possible that this will be published before the summer of 2018. In the meanwhile the Guidelines for Judges meeting Children who are Subject to Family Proceedings (2010) remain in force. Macdonald J emphasised that the requirements in the 2010 guidelines must be complied with, so that the preparatory work is complete before a judge can decide whether to see the child. It also allows the child, parties and the judge to know when, where and how a meeting should take place. The latest time that the court should be notified of the child’s request to meet with the judge is the issues resolution hearing.

Join child as party to inherent jurisdiction secure accommodation applications (A Local Authority v AT and FE [2017] EWHC 2458 (Fam))

Due to the lack of secure accommodation units, other residential homes are being commissioned to provide an equivalent service. However the substitute placements are unapproved by the Secretary of State and the local authority cannot apply for a secure accommodation order. Applications to authorise the placement of a child in an unapproved secure placement must be made to the High Court under its inherent jurisdiction.

While there is no prescribed procedure for an application to authorise the use of an unapproved placement, the procedure should follow those for secure accommodation order applications. This includes the need to make the child a party to proceedings, appoint a children’s guardian, provide the child an opportunity to attend the hearing and be legally represented (section 25(6), Children Act 1989).


Parents ability to consent to child’s confinement depends on young person’s mental capacity (Re D (A Child) [2017] EWCA Civ 1695))

One of the components in Storck v Germany [2005] 43 EHRR 96 for whether a person’s situation is a deprivation of liberty is whether there is valid consent to the confinement. If there is valid consent, there is no deprivation. When the person subject to confinement is a child, those with parental responsibility could give consent to the child’s confinement. Before this appeal, Keehan J had determined that a parent’s ability to consent ended when the child turned 16.

On appeal, Munby P clarified that there is no assumed age for when a young person has the capacity or competence to make decisions independently of those who hold PR for them. Whether a young person has capacity will be dependent on an assessment of the young person’s understanding, maturity and characteristics. It is therefore possible that a parent could consent to the confinement of young person aged 17 if the young person did not have the capacity to personally consent or oppose. Conversely, a mature child aged 13 could consent to their confinement despite their parent’s wishes.

Mother under 16 can relinquish and consent to the adoption of her child if Gillick competent (Re S (Child as parent: Adoption Consent) [2017] EWHC 2729 (Fam))

A mother, who is a child herself, may be able to give the necessary consents for her child to be relinquished for adoption. In all cases, where a mother wishes to relinquish her child for adoption, the local authority will need consent from her to:

  • Accommodate her child in local authority care under section 20 of the Children Act 1989.
  • Place her child for adoption.
  • Adoption of her child.

Whether a child mother can give consent will depend on whether she has capacity or competence. Cobb J clarified that the test was that in Gillick v West Norfolk and Wisbech Health Authority [1985] 3 WLR 380, supplemented by key aspects of a mental capacity assessment in the Mental Capacity Act 2005. The mother should have:

  • Sufficient understanding and intelligence to comprehend what is proposed.
  • Sufficient information about the legal consequences.

All practical steps should be taken to help the mother make the specific decision.

Procedure and drafting

Only the High Court or Court of Appeal can revoke an adoption order (Re J (A Minor) (Revocation of Adoption Order) [2017] EWHC 2704 (Fam))

The reminder came as a result of a circuit judge’s attempt to revoke an adoption order that was made mistakenly without following due process. Before the order to revoke was sealed, the matter was referred to the High Court. Hayden J revoked the adoption order, but reminded practitioners that once an adoption order is made, it can only be revoked under the inherent jurisdiction of the High Court or the Court of Appeal on appeal. Adoption orders are made to be final and lifelong. A judge in the County Court does not have the power to revoke an adoption order.

Production orders are requests to the prison governor (Re Z (A Child: Production Orders) [2017] EWFC B92)

In proceedings where one of the parties is serving a custodial sentence, it is often necessary for the party to attend court. To have the necessary arrangements in place, the court will make a production order, which is sent to the prison governor to act on. The wording in production orders have not been universal and have been drafted as mandatory orders.

On a closer look at the legislation, the Family Court has no power to order a prison governor to produce a prisoner party. Production orders should be formal requests to the prison governor for the production of the person to the court. The order should include the reasons for why production of the prisoner is justified and in the interests of justice. The prison governor then decides whether to accede to the request. To assist practitioners, HHJ Davies published template production orders.

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