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<p>We are pleased to announce that Parklane Plowden pupil, Avaia Williams, has again had an article published in the Family Law Journal (April 2025).</p>
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<p>In this article, Avaia explores two recent High Court decisions, with wholly unique backgrounds, in which members of chambers Martin Kingerley KC, Rebecca Musgrove, and Nathaniel Garner acted respectively. In both A Local Authority v W [2024] EWFC 350 ('Re W') and A Local Authority v C [2024] EWFC 336 ('Re C'), the children’s mothers had died in tragic circumstances leaving nobody able to exercise parental responsibility.</p>
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<p>A key theme within both judgments was whether harm caused pre-birth could be attributed to a parent who is deceased when the date for proceedings having been issued is post-death. In Re W, the mother took her own life whilst the baby was in utero, thus creating a lacuna whereby for a period of time, post mother’s death but before the child’s birth, there were no legal people in existence. In Re C, the mother also took her own life via a house fire, in the process almost killing C, here an issue arose whereby the Local Authority only issued proceedings a month later.</p>
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<p>Mr Justice Peel found in Re W that:</p>
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<p><em>“The court may not have jurisdiction until the child is born, but in my judgment the court is entitled, when considering threshold, to take into account the parental care given to the child before birth, even if the parent is dead at the relevant date point of either protective measures starting or at the point of application. If the question posed is: “can the care given by the parent encompass care given to a child in utero” I suggest that the answer, in principle, is yes.”</em></p>
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<p>And noted in Re C:</p>
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<p><em>“. . . the attributability requirement is not to be confined to, or aligned with, the date of the application. C was at the date of the application suffering significant harm. That harm was, on the evidence currently available, attributable to the actions of her mother a mere 7 days previously. It would be extraordinary if, in such a situation, the Local Authority could not take steps to protect the child. It would lead to the anomalous situation that the court would not be able even to inquire into threshold, however, desirable that might be, or seek protective orders. The purpose of Part IV of the Act is to enable children who are suffering, or likely to suffer, significant harm caused by parents to be protected from that harm by Local Authority intervention. To neuter s31 because the parental perpetrator of harm is no longer alive would be an unexpected, and unfortunate consequence. But in my judgment that is not the intention of the Act, nor is it what the Act says. A plain reading of the words in s31(2)(b) that the harm must be attributable to “the care given to the child” must include past care, i.e before the date of the application, which led to the application itself. The wording does not expressly add “at the time of the application” or some such rider. Nor does it say that a parent must be alive at the time of the application. If my analysis is correct, then it matters not whether the parent is alive, or dead, or missing. What matters is whether the LA can establish (i) harm at the date of the application (or, if earlier, when protective measures implemented and carried through to the date of the application) and (ii) attributability of that harm i.e that it is a consequence of parental acts or omissions.”</em></p>
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<p>Avaia explores the impact and potential consequences of these two judgments, questioning whether Parliament intended for unborn children to be considered in the way that Mr Justice Peel allowed for, a question which raises legitimate concern given the legal definition of a foetus was not clarified in law until after the drafting of the Children Act 1989.</p>
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<p>The court also relied on the judgment in Re M [1994] 2 FLR 577 which causes concern that the goal posts in relation to threshold may have been moved; drug or alcohol use in utero to establish a basis for pre-birth harm almost always arises as an issue as being a risk of significant harm for the future, not necessarily relied upon as a sole condition or actual harm caused – to consider a hypothetical where a mother uses drugs or alcohol for the first 5 months of pregnancy, she then stops completely and it is agreed she has made a full recovery, upon birth the baby has drug and/or alcohol related concerns, is threshold established? Prior to the judgments of Peel J, it would have been more readily argued no, now, the situation is not so clear.</p>
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<p>For more about the judgments and potential implications in practice, and to read the discussion, you can find Avaia’s full article in Family Law Journal (April 2025 issue) <a href="https://plus.lexis.com/uk/document/?pddocfullpath=%2Fshared%2Fdocument%2Fanalytical-materials-uk%2Furn:contentItem:6FHB-X6W3-RSP5-648C-00000-00&selectedTocLevelKey=TAABAABAAKAAC&crid=1c13272e-a979-4a69-9025-d4faca8557a8&cbc=1" target="_blank" rel="noreferrer noopener">here</a>.</p>
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<p><a href="https://www.parklaneplowden.co.uk/our-barristers/avaia-williams-pupil/" target="_blank" rel="noreferrer noopener">Avaia Williams</a> is a second-six family and COP pupil and is quickly building a busy children law and Health and Welfare practice. He has already acted in multi-day final hearings and complex capacity matters.</p>
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<p><a href="https://www.parklaneplowden.co.uk/our-barristers/rebecca-musgrove/" target="_blank" rel="noreferrer noopener">Rebecca Musgrove</a> is a family and Court of Protection barrister who often acts in lengthy and complex proceedings and regularly appears in the High Court. She has particular expertise in Deprivation of Liberty cases concerning children.</p>
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<p><a href="https://www.parklaneplowden.co.uk/our-barristers/nathaniel-garner/" target="_blank" rel="noreferrer noopener">Nathaniel Garner</a> is a specialist family practitioner, with emphasis on serious and complex cases involving children. He is recognised by Chambers and Partners for his exceptional work and is often instructed in high profile cases on Circuit.</p>
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<p><a href="https://www.parklaneplowden.co.uk/our-barristers/martin-kingerley-kc/" target="_blank" rel="noreferrer noopener">Martin Kingerley KC</a> is a door tenant who took silk in 2020 and was appointed a Deputy High Court Judge in 2023. He is instructed in some of the most serious and complex public law cases and is an expert on matters concerning surrogacy and conception.</p>
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