P (A Child)  EWCA Civ 888 – read judgment here.
1 Crown Office Row’s Martin Downs represented the parents in this appeal (not at first instance), but is not the author of this blog post.
In this successful appeal against care and placement orders in respect of a young infant with Polish parents, the Court of Appeal were sharply critical of comments made by the first instance judge which made it clear he had closed his mind at an early stage to the possibility of the baby being looked after by her grandparents in Poland. The Court held that both the judge and the local authority had failed to give sufficient weight to their positive obligation under Article 8 to consider ways of retaining a child within the family.
The parents in this case were Polish nationals who moved to England in 2011. Their daughter was born in September 2012. For the first five-and-a-half months of the little girl’s life, there were no concerns about the care she was receiving from her parents. However, in February 2013 she was taken to her local hospital in Warrington with a head injury which was found to be non-accidental and probably inflicted by the father. On discharge from hospital the baby was taken into foster care. Proceedings were instituted and after several hearings before HHJ Dodds concluded in December 2013 with an adoption placement.
Elizabeth Warren -v- Care Fertility (Northampton) Limited and Other  EWHC 602 (Fam) - Read judgment / court summary
The High Court has ruled in favour of a 28-year-old woman who wanted her late husband’s sperm to be retained even though the correct written consent was not in place. Mrs Justice Hogg (‘Hogg J’) ruled that Mrs Warren has a right under Article 8 of the European Convention on Human Rights (the right to respect for private and family life) to decide to become a parent by her deceased husband.
Mr Brewer had put his sperm into storage in April 2005 in order to enable his wife, Elizabeth Warren, to conceive a child by him after his death. However, he was not advised by his Clinic as to the statutory steps he needed to take in order for his sperm to be stored for longer than 10 years. In the event, he sadly passed away shortly before the lawful expiry of his consent, leaving his widow insufficient time to decide whether she wished to conceive his child.
F v F  EWHC 2683 (Fam) – read judgment
The High Court has ruled that two sisters must receive the MMR vaccine against their wishes and the wishes of their mother.
This was an application by the father for a declaration and a specific issue order concerning his daughters both receive the MMR vaccination. This was opposed by their mother.
Following the breakdown of their parents’ marriage, the girls (aged 11 and 15 respectively) lived with their mother, and the father had contact every alternate weekend and half the school holidays. After publication of the now discredited paper published by Dr Andrew Wakefield in the Lancet connecting the MMR vaccine with autism, both parents agreed not to have a booster arranged for the older daughter (who had been inoculated against MMR at birth) and to forego a vaccination for the other daughter completely. Continue reading
The recently released statistics from the Department for Education showing an increase of 15% in the adoption of looked after children in the last year further highlights the government’s preferred strategy for ensuring the welfare of children in care.
In my recent post, I considered the main thrust of the decision of the Court of Appeal in Re B-S which concerned the rigour which was expected of evidence, hearings and Judgments before a Placement Order was made.
However, the Court also dealt with the issue which had concerned Lord Justice McFarlane when he gave permission to appeal namely, where a Court has already made an order that a child may be placed for adoption and that has happened and the prospective adopter has applied for an Adoption Order, in what circumstances can a parent seek to stop it going ahead?
Re B-S (Children)  EWCA Civ 1146 – Read judgment
is the latest Judgment of the Court of Appeal on non-consensual adoption since the Supreme Court authorized a closer scrutiny of first instance decisions In re B (A Child) (Care Proceedings: Threshold Criteria)  UKSC 33,  1 WLR 1911 (see comment by Rosalind English here)
It is also the most authoritative (the case was allocated to Lord Dyson MR, the President of the Family Division and Black LJ) and uses to strong language about the current inattention to Human Rights in care and adoption proceedings.
Re A (a child)  EWCA Civ 1104 – read judgment
Appellate judges are obliged to review systemic failings in the family justice system as a whole, not just the merits of the trial judge’s determination, particularly where the process has deprived the parties of their rights to procedural fairness under Articles 6 and 8. Whilst this particular appeal was not “a fitting vehicle to enable a root and branch appraisal of the procedural history of this protracted case”, McFarlane LJ has taken the opportunity to give full voice to the “profound feeling of failure” felt by Court on the part of the Family Justice system.
The law does its best in the triangulation of estranged parents and their children . But sometimes it does nothing more than concentrate an already toxic mixture of manipulation, mistrust and deception that seeps over the fragile construct of family life that has fallen apart at the start. As anyone involved with the family justice system would readily agree, the conduct of human relationships, particularly following the breakdown in the relationship between the parents of a child, are not readily conducive to organisation and dictat by court order; nor are they the responsibility of the courts or the judges. Nevertheless, as the Court of Appeal points out, “substantive” resources have been made available to courts and judges to discharge their responsibility in matters relating to children in a manner which affords paramount consideration to the welfare of those children “and to do so in a manner, within the limits of the court’s powers, which is likely to be effective as opposed to ineffective.” Continue reading
Hollingsworth v Perry - No. 12–144 – Read judgment
United States v Windsor - No. 12–307 – Read judgment
In rulings that have the potential to influence the jurisprudence of courts around the world, the Supreme Court of the United States has handed down two landmark decisions pertaining to the issue of same-sex marriage.
The right of gay and lesbian couples to wed remains one of the most controversial and debated civil rights issues of our time. However, the ground has been shifting with increasing rapidity in recent years and months. The direction of change is clear. There are now fifteen countries which permit or will permit same-sex marriages, including most recently Uruguay, New Zealand and France. With bills steadily progressing through the Parliamentary process, there is a strong possibility that England, Wales and Scotland may soon be added to the list.
145 barristers on the Attorney General’s Panel of Counsel have signed a letter seeking that the Government to rethink its plans for reform of Legal Aid. I was one of the signatories. The letter is reproduced on the Legal Aid Changes blog.
The letter relates specifically to Judicial Review, which is an area in which Panel counsel practise regularly. Here is a taster:
We consider that the proposals in the Consultation Paper will undermine the accountability of public bodies to the detriment of society as a whole and the vulnerable in particular. Those who are reliant on legal aid are most likely to be at the sharp end of the exercise of government power and are least likely to be able to fund judicial review for themselves, or effectively act in person.
RE F (CHILDREN) 14 May 2013, Court of Appeal – extempore so currently only available as a Lawtel summary (£)
A topical case, this, given legal aid cutbacks. It concerns the ability of unrepresented litigants to choose those to help them out as advocates in court. Not an unconstrained right, as this case demonstrates. The High Court ruled that a judge had been entitled to refuse an application for a particular person to act as a McKenzie friend despite that individual not being present in court at the time of the application. The Court of Appeal upheld that decision.
This application for permission to appeal resulted from the refusal by a family judge to permit a person to act as a McKenzie friend within care proceedings.
The Marriage (Same Sex Couples) Bill is back before Parliament today for the “Report Stage”. The latest version of the Bill is here, updated explanatory notes here, and the full list of proposed amendments here. Predictably, the amendments are the focus of much controversy.
I have written a new article for the New Statesman on some of the myths and realities surrounding the debate - you can read it here. It’s all a bit complicated, as you might expect.
Our previous coverage is linked to below. Hopefully, party politics won’t end up derailing this important bill. As the New Yorker recently predicted
One day, not long from now, it will be hard to remember what worried people so much about gay and lesbian couples committing themselves to marriage.
A & S v. Lancashire County Council  EWHC 851 (Fam) read judgment
This was a costs application arising from an extremely important decision by Peter Jackson J in June 2012 (see Alasdair Henderson’s post here and read judgment)
In that original judgment, Lancashire County Council were found to be in breach of Articles 8 (private life), 6 (fair trial) and Article 3 (inhuman treatment) of ECHR. Two brothers had come into local authority care as infants and were freed for adoption.
R (on the application of H) v Kingston Upon Hull City Council & KS, AS, SS, TS and FS (Interested Parties)  EWHC 388 (Admin) read judgment
This was a successful claim for judicial review brought by a mother in care proceedings in respect of her two children who were removed from the care of the paternal grandparents. To that extent, it is a first. It concerns the duty on the Local Authority to consult with parents when an Interim Care Order is in place.
The claim raised two points. The first concerned whether it was permissible to bring a claim for JR when there were ongoing care proceedings and secondly the extent of the Local Authority’s duty to consult with parents when an ICO is in force. As to the latter point, there were two decisions that were challenged by the mother. The first was a decision taken on 31st January 2013 and the second concerned a decision taken on 1st February 2013 both concerning the placement of her children under the ICO.
Swift v. Secretary of State for Justice, Court of Appeal, 18 February 2013 – read judgment – on appeal from Eady J, read judgment and my previous post
Ms Swift lost her live-in partner in an accident at work caused by negligence. She was pregnant with her partner’s child, but had only been living with him for 6 months. Had she been with him for 2 years, she could have claimed damages for his death under section 1(3) of the Fatal Accidents Act – set out at  of the CA judgment. She would then have been a “dependant” as defined under the FAA. So she argued that her rights under Articles 8 (family) and 14 (discrimination) of the ECHR were not properly respected by the law governing damages for the death of a relative – there was no justification for this stark cut-off – 1 year 11 months no claim, 2 years a claim. The judge refused to grant a declaration of incompatibility between the ECHR and the Fatal Accidents Act, and the Court of Appeal has just upheld his decision.
A lot of money turned on the point: Had she qualified as a dependant, she would have had a claim for about £400,000.
X AND OTHERS v. AUSTRIA – 19010/07 – HEJUD  ECHR 148 (19 February 2013) – Read judgment
The Grand Chamber of the European Court of Human Rights (by 10 votes to 7) has found that Austrian law discriminated against a same sex couple as it prevented them from adopting jointly the biological child of one of them (what we would call a second-parent adoption). The Court found a violation of Article 14 (anti-discrimination) in conjunction with Article 8 (respect for private and family life) protection because this was less favourable treatment than if they were an unmarried different sex couple who would have been permitted to adopt together.
The narrowness of the majority might have had something to do with the fact that the father of the Child had been a party to the case in the domestic courts and opposed the adoption (although the fact that the child of the lesbian couple in Gas and Dubois v France had been conceived through anonymous donor insemination had not helped that case). In the event, the Grand Chamber decision was based on the fact that the Austrian Supreme Court had referred to the “legal impossibility” of the proposed same sex adoption in this case.
RCW v A Local Authority  EWHC 235 (Fam) (12 February 2013) - Read judgment
This case, described by Cobb J as an “unusual and troubling” case, concerns a 1 year old girl “SB” and a woman “RCW”. SB was born prematurely, at 27 weeks, weighing just 1 kg; almost immediately she was abandoned by her natural mother.
She spent many months in the Special Care Baby Unit. In October 2012 SB was matched with RCW, a single woman who worked as a project manager for the NHS. In January 2013 things took an “unexpected and wretched turn” in the form of RCW’s diagnosis with a brain tumour. Hurriedly, RCW made arrangements with a cohort of friends to care for SB while RCW underwent surgery to remove the tumour which was situated near the optic nerve. The operation, whilst successful in removing the tumour, left RCW without sight; it is not known whether the lack of sight is temporary or will be permanent.