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The Government has commissioned an independent review of children’s social work and frontline child protection practice. Child protection services have been widely derided as a result of a series of scandals such as that involving baby Peter Connelly (Baby P), and many lawyers feel the court system is at breaking point.
Update 13/06/10 – The Court of Protection has issued its first annual report, which can be accessed here. The forward to the Report says “The court has had to endure more than its fair share of setbacks, which were caused in the main by a failure to anticipate, prior to the implementation of the Act, the volume of work that would inundate the court during the initial transitional period, and the overall burden it would place on the judges and staff.”
According to a Department for Education (DoE) press release, Michael Gove, the Secretary of State for Education, has asked Professor Eileen Munro, a professor of social policy at the London School of Economics, to lead the a “fundamental” review of child protection services. Professor Munro has written widely on child protection and the regulation of child care.
Alta Fixsler was born with catastrophic brain injury. She now two years old, currently a patient at the Royal Manchester Children’s Hospital Paediatric Intensive Care Unit on intensive life sustaining treatment. In this case the court was asked to decide whether it would be in Alta’s best interests for that life-sustaining treatment to be continued. The inevitable consequence of it being discontinued will be the death of Alta.
The parents are Chassidic Practising Jews and Israeli citizens. They emphasised the fact that being devout members of the Jewish faith meant that their faith was not simply a religion but also a way of life. Within this context, the parents took detailed rabbinical advice as to their religious duties and obligations in the context of Alta’s medical situation. They opposed the application brought by the NHS Trust and instead sought to take Alta to Israel for continued treatment and the exploration of long-term ventilation at home in Israel in due course or, if the court concluded that it is in Alta’s best interests for life sustaining treatment to be withdrawn, for that step to be taken in Israel.
A declaration pursuant to the inherent jurisdiction of the High Court that it is not in the best interests of Alta for life-sustaining medical treatment to be continued, and that is it in her best interests for a palliative care regime to be implemented;
A specific issue order under section 8 of the Children Act 1989 determining that life-sustaining medical treatment should cease to be provided and a palliative care regime implemented instead.
The focus of this judgment was on the jurisdiction, if any, that the High Court Family Division has to maintain a Reporting Restriction Order (‘RRO’) prohibiting the naming of any medical clinicians as being involved in the care and treatment of a child who had been the subject of “end of life” proceedings before the High Court prior to their death, and where an RRO had been made at that time preventing the identification of any of the treating clinicians and staff until further order.
Each of the children, Zainab Abbasi and Isaiah Haastrup, had been the subject of end of life proceedings under the inherent jurisdiction of the High Court, in which the issue was whether life-support should be withdrawn from them. Each of the two children died; Zainab Abbasi dying after the issue of proceedings but before the court could conduct a substantive adjudication, and Isaiah Haastrup dying following the removal of life-sustaining ventilation at the conclusion of a full legal process including an application to the Court of Appeal. In both cases, widely drawn RROs were made during the proceedings.
G (Children), Re [2012] EWCA Civ 1233 – read judgment
If you received this article by email, it will have been attributed to Adam Wagner. It is in fact by Karwan Eskerie – apologies
What is happiness? If you thought this most philosophical inquiry was beyond the remit of the judicial system then you should read this case.
In Re G (Children), the estranged parents of five children disagreed over their education. Both parents belonged to the Chassidic or Chareidi community of ultra orthodox Jews. However, whilst the father wanted the children to attend ultra-orthodox schools which were unisex and where all the children complied with strict Chareidi practices, the mother preferred coeducational ‘Modern Orthodox’ schools where boys did not wear religious clothing and peyos (long hair at the sides), and children came from more liberal homes where for instance, television was taken for granted.
Raw and others v France – read judgment (only available in French)
This complicated inter-jurisdictional battle between estranged parents is a stark illustration of how difficult it can be in these sorts of cases to apply the law in the fog of family warfare.
Even though the mother’s case was upheld in the Strasbourg Court, one can tell from the modesty of the damages awarded and the strength of the minority opinions that the judges were extremely reluctant to apply hard letter law to the complicated case before them. Indeed in one partially concurring judgment, Judge Nussberger found it distinctly odd that the mother was able to join the children as parties, in the light of their opposition to her wish that they leave their father to join her. Continue reading →
MNX v Khan [2017] EWHC 2990 (QB) (23 November 2017) – read judgment
Can a mother who consults a doctor with a view to avoiding the birth of a child with one disability recover damages for the costs associated with another disability?
The claimant sought damages arising out of the wrongful birth of her son Adejuwon. She had become pregnant after being reassured that there was no risk of haemophilia. Her child was born with the condition, and it subsequently turned out that he suffered from autism as well. The costs of bringing up a child with haemophilia were estimated at £1,400,000. The additional costs of autism amounted to £9,000,000. Continue reading →
Principal Reporter (Respondent) v K (Appellant) and others (Scotland) [2010] UKSC 56 – Read judgment / press summary
The Supreme Court has ruled that Scottish law, which previously did not give unmarried fathers the right to take part in a hearing relating to a child with whom they have established family ties, is incompatible with human rights law.
The statutory provision which defines the categories of people who have a right to take part in the hearings must be read to include anyone who has established family life with the child. The Human Rights Act empowers courts to “read” legislation in such a way as to give effect to the European Convention on Human Rights.
AA, Re (Including: note by Mr Justice Mostyn) 4 December 2013 [2013] EWHC B24 (COP) – read note and judgment
In the matter of P (a child) 13 December 2013 [2013] EWHC 4048 (Fam) – read judgment
The full story of the “forced caesarean” that went viral a few weeks ago has been set out by Adam Wagner and others in his post “Lessons learned”. In order to set the record straight, Mostyn J has now authorised the 2012 judgment to be released, together with the verbatim transcript of the proceedings and the order made. Far from the baby being snatched from the womb of its unwilling mother at the behest of interfering social services, this is what took place:
… it was an urgent application first made at 16:16 on 23 August 2012 by the NHS Trust [not social services], supported by the clear evidence of a consultant obstetrician and the patient’s own treating consultant psychiatrist, seeking a declaration and order that it would be in the medical best interests of this seriously mentally ill and incapacitated patient, who had undergone two previous elective caesarean sections, to have this birth, the due date of which was imminent (she was 39 weeks pregnant), in the same manner. Continue reading →
A (A Child) v Cambridge University Hospital NHS Foundation Trust [2011] EWHC 454 (QB)– read judgment
A High Court judge has ruled that a seven-year-old child with severe disabilities caused by medical negligence during his birth should be the subject of an order that prohibits their identification in any newspaper report.
The order was granted in the course of a hearing to approve the settlement between the child and the defendant hospital under Part 21.10 of the Civil Procedure Rules. The judge held that there was a risk that the objective of such proceedings, namely to ensure that settlement money is properly looked after and wisely applied, would be defeated if the Claimant was identified. Further, identification of the child would curtail his and his family’s right to respect for their private and family under Article 8 of the European Convention on Human Rights [‘ECHR’] and there was insufficient general public interest in identifying the child to justify that curtailment.
The Christian Institute (and others) v Scottish Ministers [2015] CSIH 64, 3rd September 2015 – read judgment
The Court of Session’s appeal chamber – the Inner House – has unanimously rejected challenges to the Scottish government’s controversial named person scheme. Three individual petitioners, as well as The Christian Institute, Family Education Trust, The Tymes Trust, and Christian Action Research and Education (CARE), contested the appointment of named persons and the scheme’s provisions for data sharing.
The Named Person Scheme
The named person scheme is part of a package of measures introduced by the Children and Young People (Scotland) Act 2014. According to the Scottish government, the aim of the legislation is to ensure that the rights of children are respected across the public sector. Continue reading →
Sharon Shoesmith’s court action over her sacking by Haringey Council has once more brought to the fore the sorry account of neglect and mismanagement by police and local authorities of that led to the death of baby Peter Connelly (‘Baby P’). It has also, however, highlighted the increasingly significant role of courts in the UK and Europe in holding public and private authorities to account in claims involving allegations of child abuse.
It is not just local authorities that are under pressure. Allegations of sexual abuse by members of the Catholic church rumble on, occasionally erupting into well publicised court dramas. For example, the recent groundbreaking claim brought against a Catholic priest, Father Clonan, relating to events in Coventry in around 1976 (MAGA v The Trustees Of The Birmingham Archdiocese Of The Roman Catholic Church [2010] EWCA Civ 256).
The claimant (MAGA) was at the time a child of 12 with learning disabilities. The High Court had ruled that the Church was not liable for the abuse as MAGA was not a Roman Catholic, and as such Father Clonan had no business having any dealings with him and was not doing so in his capacity as a priest. MAGA succeeded on appeal because the Court of Appeal accepted that a priest’s duties are very wide, and involve him befriending non-Catholics, such as in the course of his evangelising role.
In rejecting the claim of Just for Kids Law, Mr Justice Supperstone affirmed that the legal framework for deploying juvenile covert human intelligence sources (JCHIS) was lawful and adequately safeguarded the child’s welfare.
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?
The Supreme Court has unanimously ruled that in cases where a parent is threatened with deportation, the best interests of their child or children must be taken into account, particularly when the children are citizens by virtue of being born in this country.
Following her leading judgment in last week’s domestic violence case, for which she has been dubbed the “Brilliant Baroness”, Baroness Hale has delivered another wide-ranging, principled judgment which will bring immigration courts into line with current thinking on child welfare and article 8 of the European Convention on Human Rights (the right to family life). The basic point is that children’s views must be taken into account, and this should include asking them what they think.
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The Government has commissioned an independent review of children’s social work and frontline child protection practice. Child protection services have been widely derided as a result of a series of scandals such as that involving baby Peter Connelly (Baby P), and many lawyers feel the court system is at breaking point.
G (Children), Re [2012] EWCA Civ 1233 – 
The Christian Institute (and others) v Scottish Ministers [2015] CSIH 64, 3rd September 2015 – 
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