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Private Children Law Update May 2025

<!-- wp:paragraph --> <p><em>Katherine Goss and Richard Harrington, family law barristers at Parklane Plowden chambers were invited to speak at the West Yorkshire Local Family Justice Board annual Private Law conference on 16 May 2025. Among the delegates were key stakeholders in Family Law in the region including members of the judiciary, lawyers, social workers, Cafcass and domestic abuse workers. Law students from the University of Law which sponsored the event were also in the audience.<br>Katherine and Richard provided the following Private Law update:</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>We began by exploring the judicial approach to fact-finding hearings in private law proceedings, particularly where serious allegations of domestic abuse have already led to criminal convictions. Mrs Justice Lieven and Cobb J in several cases have previously emphasised that the family court is not there to forensically examine relationship breakdowns but instead to make welfare decisions in respect of the child. Reliance on written evidence, including the parents’ witness statements, CAFCASS reports and probation reports, can be sufficient to proceed straight to the welfare stage. The guidance is clear: fact-finding hearings should only be held where necessary and proportionate, and not as a default step.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>We then examined the significance of judicial caution in progressing contact where a fact-finding hearing is pending. The Court of Appeal in <strong>E, F And G (Interim Child Arrangements) [2024] EWCA Civ 874 </strong>made clear that relaxing contact arrangements in the face of unresolved allegations contradicts Practice Direction 12J. Judges must not prematurely 'test out' unsupervised contact prior to a fact-finding hearing as it creates an unmanageable risk.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>In <strong>T &amp; O, Re (Appeal: Fair Hearings: Delegation of Judicial Functions) [2024] EWHC 2236 (Fam)</strong>, Henke J disapproved of delegating decisions to an independent social worker as to how unsupervised contact was to progress without there being a proper opportunity for the other party to amount a challenge to the same. The court held that discretion as to how contact progresses must remain a judicial function. Similarly, in <strong>M (Children: Contact in Prison) [2024] EWCA Civ 1104</strong>, Peter Jackson LJ criticised a High Court decision that permitted prison visits and contact without there being a robust welfare analysis, consideration of Practice Direction 12J, and the court not hearing evidence from Cafcass who did not support such visits.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>We then turned to the emerging framework to understand why children resist or refuse contact. We discussed the AAA–AJR–AV–PB–RRR model: Attachment, Affinity, Alignment; Appropriate Justified Rejection; Alienating Behaviours; Protective Behaviours; and Reluctance, Resistance, or Refusal. These categories assist courts in identifying the reasons behind contact breakdowns and in avoiding default findings of alienation. It was noted that proving alienation requires clear evidence of the child's resistance, that the resistance is not justified by the conduct of the contact-seeking parent, and that the other parent has engaged in direct or indirect manipulation. These are hard to prove and rare.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The discussion moved on to the importance of third-party evidence: communications between parties, school records, medical notes, and professional interactions all form part of the evidential picture. Wishes and feelings reports must be treated with caution, particularly where there may be influence or pressure on the child.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>We also addressed shared care orders, focusing on the case of <strong>AZ and BX (Child Arrangements Order: Appeal) [2024] EWHC 1528 (Fam)</strong>. Poole J confirmed that when the court is asked to determine whether to make a live with or spend time with order, it is not merely a question of labelling and rather, it is relevant welfare consideration; for example, a live with order would provide a father with parental responsibility. Poole J confirmed that that the key welfare advantages of making joint live with orders were 1) it prevents one parent believing they are more important than the other parent and controlling the arrangements, 2) it puts both parents on an equal footing as to holidays abroad, 3) it signals to both parents the equal value each have in the child’s life, 4) and signals to the child that each parent has the same inherent importance.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Finally, we discussed the use and limits of Section 37 of the Children Act 1989. In <strong>Re E (Section 37 Direction) [2025] EWCA Civ 470</strong>, the Court of Appeal held that Section 37 directions can only be made in relation to subject children, i.e., those already part of or directly related to the current proceedings. There is no power of the court to direct a Section 37 investigation into non-subject children.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>In summary, the day’s discussion emphasised proportionality, evidence-based decision-making, and clarity of purpose in family proceedings. Whether discussing fact-finding, alienation, contact, shared care, or Section 37 orders, the golden thread remains the welfare of the child.</p> <!-- /wp:paragraph -->

Claire Millns Succeeds in the EAT

<!-- wp:paragraph --> <p>The Employment Appeal Tribunal (EAT) in <em>Handa v The Station Hotel (Newcastle) Ltd &amp; Ors</em> [2025] EAT 62 provided significant guidance on the interpretation of “agent” under section 47B(1A)(b) of the Employment Rights Act 1996 (ERA).</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>Background</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Mr. Neeraj Handa, a former director and employee of The Station Hotel (Newcastle) Ltd (‘SH’), was dismissed following internal disciplinary proceedings. Mr Handa alleged that his dismissal was because he made protected disclosures about financial improprieties within SH. Two independent external HR consultants were joined as Fourth and Fifth Respondent.&nbsp;The Fourth Respondent (represented by Claire Millns) carried out a grievance investigation into complaints made about Mr Handa’s conduct by his colleagues. The Fourth Respondent made recommendations that SH uphold some of those grievances and consider a disciplinary hearing. SH accepted the Fourth respondent’s recommendations. Mr Handa later attended a disciplinary hearing overseen by the Fifth Respondent, who made recommendations to dismiss Mr Handa, which were followed by SH. Mr. Handa contended that both the Fourth and Fifth Respondent acted as agents of the company and were thus personally liable under section 47B(1A)(b) ERA for subjecting him to detriment due to his whistleblowing.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>Tribunal and EAT Findings</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Fourth and Fifth respondents successfully applied to strike out the claims against both, with the tribunal finding that there were no reasonable prospects of success of Mr Handa establishing that either were agents acting on behalf of the employer. Mr. Handa appealed this decision.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The EAT upheld the Tribunal’s decision, providing the following clarifications:</p> <!-- /wp:paragraph --><!-- wp:list --> <ul class="wp-block-list"><!-- wp:list-item --> <li><strong>Definition of “Agent”</strong>: While the term “agent” in employment legislation refers to the common law concept of agency, its application must consider the employment context and the dynamic nature of employment relationships.</li> <!-- /wp:list-item --><!-- wp:list-item --> <li><strong>Significant Aspect of Employment Relationship</strong>: The EAT emphasised that for an individual to be considered an agent under section 47B(1A)(b), their services must relate to a significant aspect of the employment relationship. However, merely performing tasks on behalf of an employer does not automatically confer agency status.</li> <!-- /wp:list-item --><!-- wp:list-item --> <li><strong>Authority and Control</strong>: The consultants operated within the confines of their contractual obligations, providing recommendations without decision-making authority. There was no evidence that the employer controlled their processes or that they acted under the employer's direction in a manner that would implicate them in the dismissal decision.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --><!-- wp:paragraph --> <p><strong>Implications</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>This case underscores the importance of clearly delineating the roles and responsibilities of external HR consultants. Employers should ensure that contractual agreements specify the scope of authority granted to consultants to prevent ambiguity regarding decision-making powers. Additionally, maintaining thorough records of consultants’ roles and the decision-making processes may safeguard against potential liability claims.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>While the EAT acknowledged that external consultants could, in principle, be considered agents, the specific circumstances of their engagement and the nature of their authority are critical factors in determining liability under whistleblowing provisions.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The full judgment is available here:</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><a href="https://assets.publishing.service.gov.uk/media/68149063a87f19ba7b3a828c/Mr_Neeraj_Handa_v_The_Station_Hotel__Newcastle__Ltd_and_Others__2025__EAT_62.pdf" target="_blank" rel="noreferrer noopener">https://assets.publishing.service.gov.uk/media/68149063a87f19ba7b3a828c/ Mr_Neeraj_Handa_v_The_Station_Hotel__Newcastle__Ltd_and_Others__2025__EAT_62.pdf</a></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><a href="https://www.linkedin.com/in/claire-millns-2572baa4/" target="_blank" rel="noreferrer noopener">Claire Millns</a> appeared for the Fourth Respondent, instructed by <a href="https://uk.markel.com/law" target="_blank" rel="noreferrer noopener">Markel Law</a>.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p></p> <!-- /wp:paragraph -->

Hari Menon Represents Claimant Awarded Over £399,000 in Six Year Whistleblowing Claim

<!-- wp:paragraph --> <p><strong>McNICHOLAS v CARE AND LEARNING ALLIANCE &amp; CALA STAFFBANK</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The claimant, LM, brought a claim in September 2018 against R1 and its subsidiary, R2, alleging that she had been subject to whistleblowing detriment by both these former employers and that R2 had dismissed her unfairly for whistleblowing. LM claimed her treatment was because she had made protected disclosures concerning the care of autistic children at a nursery in a school she worked. The ET, sitting in Inverness, upheld LM’s claim. It found that the disclosures were protected under s.43B(1)(b) of the Employment Rights Act 1996 and that the school had proceeded to retaliate against her by asserting that the disclosures were false and that LM was “emotionally abusing” a child in her care and her family. This theme was then taken up by the respondents in subjecting LM to detriment, which included R1 forcing her to resign, and by R2 unfairly dismissing her. The ET found that one of the main detriments was the respondents referring LM to her regulatory body, the General Teaching Council for Scotland (GTCS), alleging “emotional abuse” of a child in her care. It found that the referral was not made in good faith but to discredit LM in order to pacify a major client, the Council which ran the school.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>At the remedies hearing, ML contended that she was unable to work in the teaching profession because of the outstanding referral and also because her treatment by the respondents had caused her psychiatric injury. In its judgment on remedy in November 2021, the ET awarded LM just over £42,000. Its reasoning was that the decision of the GTCS, an independent statutory body, to take up the referral against LM, was a <em>novus actus interveniens</em> which broke the chain of causation. Accordingly, the respondents’ liability for LM’s loss stopped at the point when the GTCS decided proceed with the referral in February 2019.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>On the sift, the EAT gave permission for the entirety of the Grounds of Appeal to proceed to a hearing. The appeal was allowed in full by Lord Fairley, sitting at the EAT in Edinburgh<a href="#_ftn1" id="_ftnref1"><strong>[1]</strong></a>. The Judge found that the ET erred in law. On the ET’s own findings, the referral was malicious. LM’s loss fell within the test for causation, which was of a natural and reasonable consequence of the wrongful act, being the referral to the GTCS by R1 and R2.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>In a judgment of the ET delivered on 31<sup>st</sup> March 2025 following the remitted remedies hearing, LM was awarded just over £399,000, including interest and the grossing up element for tax. This was just shy of 10x the original award. Most of this was against R1 and R2 jointly. It included amounts for past and future loss of earnings, solatium of £16,000 for psychiatric injury, Vento award of £20,000, LM’s legal expenses of the liability hearing of £20,000 and a further amount for her legal expenses of the proceedings before the GTCS and related Judicial Review proceedings in the Court of Session.</p> <!-- /wp:paragraph --><!-- wp:separator --> <hr class="wp-block-separator has-alpha-channel-opacity"/> <!-- /wp:separator --><!-- wp:paragraph --> <p><a href="#_ftnref1" id="_ftn1">[1]</a> <strong>[2023] EAT 127 also reported in </strong><a href="https://uk.practicallaw.thomsonreuters.com/Document/I45F40FA0AEF411EEB68FCCC69A13F35F/View/FullText.html?navigationPath=Search%2Fv1%2Fresults%2Fnavigation%2Fi0a93936a00000196d3aa57ceab487c31%3Fppcid%3Dd9c81a967a504d1783815a84c5bec4b8%26Nav%3DUK-CASES%26fragmentIdentifier%3DIEEF720405DDE11EE90CBF8AC6F33084C%26parentRank%3D0%26startIndex%3D1%26contextData%3D%2528sc.Search%2529%26transitionType%3DSearchItem&amp;listSource=Search&amp;listPageSource=66b2b6e2c95bc875339cac848db51994&amp;list=UK-CASES&amp;rank=1&amp;sessionScopeId=1712841fb0ac7ef508fd86cc44182cefb56adc5d28776bf26869ec4e165ed215&amp;ppcid=d9c81a967a504d1783815a84c5bec4b8&amp;originationContext=Search%20Result&amp;transitionType=SearchItem&amp;contextData=(sc.Search)&amp;comp=wluk"><strong>[2024] I.C.R. 45</strong></a><strong>, [2023] I.R.L.R. 975</strong></p> <!-- /wp:paragraph -->

Leila Benyounes Acts for Family in Tragic Baby Death Inquest

<!-- wp:paragraph --> <p>Baby E was a five-week-old baby who tragically died from complications of a congenital heart defect which had not been detected until after she had died.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Baby E’s mother is an insulin dependant type 1 diabetic which is known to increase the risk of a congenital heart defect. Her mother’s identical twin sister also has a congenital heart defect. The heart defect had not been suspected or identified at Baby E’s anomaly scan and fetal echocardiography had not been performed during the pregnancy.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Baby E was admitted to the neonatal unit for 8 days following birth and for suspected infection and required respiratory support. She did not undergo an echocardiogram in life which would, on the balance of probabilities, have identified the heart defect and would have resulted in different management.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Following discharge from hospital, Baby E was seen by various health professionals including GPs on three occasions, a midwife and a health visitor. Her parents had concerns about symptoms of a cough, reduced feeding and vomiting after feeds.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Baby E’s parents became increasingly concerned and she was taken to hospital where she was diagnosed with bronchiolitis, received oxygen, but suddenly stopped breathing and tragically could not be resuscitated.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>A post mortem examination found that Baby E had a genetic cardiac defect which had led to her death. It was held that earlier identification of the defect would have meant that she probably would not have died when she did.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Coroner issued a Regulation 28 Prevention of Future Deaths Report following the conclusion of the inquest due to concerns about the importance of early identification of congenital cardiac defects because of the risks they present.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Leila was instructed by <a href="https://www.irwinmitchell.com/our-people/rebecca-dawson" target="_blank" rel="noreferrer noopener">Rebecca Dawson at Irwin Mitchell Solicitors</a>.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>Leila Benyounes is Head of the Inquests Team&nbsp;at Parklane Plowden Chambers and&nbsp;is ranked as Band 1 by Legal 500 for Inquests and Inquiries. Leila has been appointed to the Attorney General’s Treasury Counsel Panel A since 2010. Leila is appointed as an Assistant Coroner in two coronial areas. Leila regularly represents interested persons in a wide range of inquests including Article 2 jury inquests and complex medical matters.&nbsp; Her full profile can be accessed </em><a href="https://www.parklaneplowden.co.uk/barristers/leila-benyounes" target="_blank" rel="noreferrer noopener"><em>here</em></a>.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p></p> <!-- /wp:paragraph -->

Coroners Statistics 2024: Key Trends

<!-- wp:paragraph --> <p>On the 8<sup>th</sup> May 2025 the Ministry of Justice published the <em>Coroners Statistics 2024</em>, providing an overview of deaths reported to coroners in England and Wales during the past year.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The headline findings show that:</p> <!-- /wp:paragraph --><!-- wp:list --> <ul class="wp-block-list"><!-- wp:list-item --> <li>191,636 deaths were reported to coroners in 2023, a 7% decrease from the previous year and the lowest figure since 1995.</li> <!-- /wp:list-item --><!-- wp:list-item --> <li>Post-mortem examinations were ordered in 38% of cases, slightly down from 2022, continuing a gradual long-term decline.</li> <!-- /wp:list-item --><!-- wp:list-item --> <li>Inquests were opened in 30,184 cases, accounting for 16% of all reported deaths, maintaining a consistent trend.</li> <!-- /wp:list-item --><!-- wp:list-item --> <li>Jury inquests remained rare, comprising just 1% of all inquests.</li> <!-- /wp:list-item --><!-- wp:list-item --> <li>The median time to complete an inquest was 30 weeks, reflecting a continued improvement in timeliness since 2020.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --><!-- wp:paragraph --> <p>The report also identifies several key trends:</p> <!-- /wp:paragraph --><!-- wp:list --> <ul class="wp-block-list"><!-- wp:list-item --> <li>“Natural causes” remained the most common inquest conclusion, followed by “accident/misadventure.” Conclusions of “suicide” and “open” have remained relatively stable.</li> <!-- /wp:list-item --><!-- wp:list-item --> <li>There is notable regional variation in the use of post-mortems and inquest opening rates, highlighting differences in local practices and population profiles.</li> <!-- /wp:list-item --><!-- wp:list-item --> <li>The overall reduction in reported deaths may reflect both changes in registration practices and longer-term demographic trends following the COVID-19 pandemic period. COVID-19 deaths are likely to be considered to be deaths from natural illness and as such not reportable to coroners.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --><!-- wp:paragraph --> <p>These figures suggest that coroners are managing workloads more efficiently, while ensuring that inquests remain a key part of the investigatory process into unexplained or unnatural deaths.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>You can read the full report and analysis on the GOV.UK website:</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><a href="https://www.gov.uk/government/statistics/coroners-statistics-2024/guide-to-coroners-statistics" target="_blank" rel="noreferrer noopener">https://www.gov.uk/government/statistics/coroners-statistics-2024/guide-to-coroners-statistics</a></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>Julia is a member of the Inquests and Inquiries Team and Head of the Family Team at Parklane Plowden Chambers. <a href="https://www.parklaneplowden.co.uk/our-barristers/julia-nelson/" target="_blank" rel="noreferrer noopener">Her full profile can be accessed here</a>.</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p></p> <!-- /wp:paragraph -->

Gonorrhoea and Presumed Sexual Abuse – Court of Appeal Clarifies Re A, B and C

<!-- wp:paragraph --> <p>Late last year, second-six pupil Avaia Williams <a href="https://www.parklaneplowden.co.uk/non-sexual-transmission-of-gonorrhoea-in-children-cases/" target="_blank" rel="noreferrer noopener">wrote a summary</a> in relation to <em><u>Liverpool City Council v M and F and P</u></em><span style="text-decoration: underline;"> [2024] EWFC 318 (B)</span>, a case concerning non-sexual transmission of gonorrhoea. The matter has since been successfully appealed and Avaia now considers what the appeal judgment in <em><u>F and B (Fact-Finding: Gonorrhoea)</u></em><span style="text-decoration: underline;"> [2025] EWCA Civ 340</span> means for such cases going forward.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong><u>Background</u></strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The matter concerned F, a six-year-old girl, (referred to in the first instance decision as ‘C’ and in the appeal as ‘F’) who presented at A&amp;E in mid-2023 and was tested positive for gonorrhoea. At this time, F lives with her maternal grandmother and maternal uncle, X (referred to in the first instance decision as ‘P’ and in the appeal as ‘X’). X had also tested positive for gonorrhoea prior to F’s diagnosis, F’s mother, M, also tested positive.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Crucially, F had made no allegations of sexual abuse and no such statement was made which suggested as such. Further, partial examination revealed no signs of sexual abuse.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>It was the Local Authority’s case at first instance that the diagnosis must have been caused by sexual contact and sought findings against either X or M.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong><u>First Instance Decision</u></strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The court at first instance was guided by <em><u>A, B and C (Fact-Finding: Gonorrhoea)</u></em><span style="text-decoration: underline;"> [2023] EWCA Civ 437</span> which cautions against an immediate jump to an infection equalling evidence of sexual abuse and the need to consider the broad canvas of evidence in the case.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The case was heavily guided by the evidence of two experts, Dr Amos Ghaly, a consultant in genitourinary medicine, and Dr Michael Rothburn, a microbiologist. Dr Ghaly stated in his report that gonorrhoea is primarily sexually transmitted, noting that:</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>“Transmission is by direct inoculation of infected secretions from one mucous membrane to another. The main route is sexual contact with relevant anatomical sites…”</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Dr Ghaly provided a simplified overview of transmission, noting that gonorrhoea being present on an object or surface, and then somebody simply coming into contact with that surface is not likely to transmit gonorrhoea, there needs to be a transmission via a ‘mucous membrane’ such as the mouth, nose, eyes, and genitals. Dr Ghaly noted that:</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>“A positive culture for N gonorrhoeae from any site in a child without prior peer sexual activity is strongly suggestive of sexual abuse. The question of whether gonococcal infection in children can be acquired through fomites still arises. To date there are no convincing data to support nonsexual mode of transmission in children.”</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>In conclusion, Dr Ghaly believed the transmission was likely due to sexual contact, but that fomite transmission could not be excluded.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Dr Rothburn explained of fomite transfer that:</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>“The possibility of fomite transfer (transfer via an inanimate object), is considered rare because gonorrhoea is a fastidious organism which does not survive outside the human host in a dry environment.”</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The court therefore noted that:</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>“The combined expert evidence does not exclude the possibility that [F] could have contracted the infection from fomite transmission. The collective evidence supports that the germ can survive on a surface for up to 12 hours in moist conditions. A damp towel located within a bathroom which is poorly ventilated and in which condensation forms, and is visible, is such a moist environment. For [F] to have contracted the infection from a fomite source, the germ must have been deposited on a surface and survived for a long enough period for [F] to come into contact with it. The germ must then have been conveyed to one of her mucus membranes for the infection to enter her body. This could be achieved directly by the object having been inserted into the body with such depth that it touches the membrane. In the case of the eye, this could be achieved by wiping the eye with an infected towel or by self infection from touching an infected part of the body and then touching the eye.”</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>As such, it was found that F’s infection was transmitted via non-sexual contact, i.e. via fomites.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong><u>The Appeal</u></strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Local Authority appealed the decision on three grounds:</p> <!-- /wp:paragraph --><!-- wp:list {"ordered":true} --> <ol class="wp-block-list"><!-- wp:list-item --> <li>The judge was wrong to place such weight on the experts being unable to conclusively eliminate fomite transmission as a possibility, thus not applying the correct standard of proof;</li> <!-- /wp:list-item --><!-- wp:list-item --> <li>The judge failed to properly consider the wider canvas of evidence alongside that of the experts, notably in respect of the bathroom conditions being unfit to incubate gonorrhoea and P’s credibility as a witness;</li> <!-- /wp:list-item --><!-- wp:list-item --> <li>The judge was wrong for not explaining why he rejected the medical evidence, instead relying on <em>Re A, B and C (Fact-Finding: Gonorrhoea)</em> to depart from this.</li> <!-- /wp:list-item --></ol> <!-- /wp:list --><!-- wp:paragraph --> <p>The Court of Appeal, whose judgment was given by Baker LJ, reminded itself of the caution against interfering with a trial judge’s findings of fact or assessment of the evidence, citing <em><u>Fage UK Ltd v Chobani UK Ltd</u></em><span style="text-decoration: underline;"> [2014] EWCA Civ 5</span> which reminds courts that:</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>“The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed. The trial is not a dress rehearsal. It is the first and last night of the show. Duplication of the trial judge’s role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case. In making his decision the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping. The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence). Thus even if it were possible to duplicate the role of thr trial judge, it cannot in practice be done.”</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>That being said, the Court of Appeal found they were compelled to interfere with the trial judge’s conclusions, accepting that the judge either misinterpreted or misapplied the expert evidence. The Court of Appeal noted that the expert evidence principally was that gonorrhoea in a child was a strong indicator of sexual abuse and, whilst fomite transmission could not be ruled out, it is a rare occurrence.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Baker LJ therefore held at [45] that:</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>“Instead of treating that as the starting point when considering the totality of the evidence, the judge focused on the fact that the expert evidence left open the possibility of fomite transmission. He said words to that effect at several points in the judgment […] he alighted on Dr Ghaly’s observation that “moisture is a main factor” for the survival of the bacterium and Dr Rothburn’s comment that its survival “on an inanimate surface depends on it being a moist environment”. He noted that the conditions in the bathroom at the grandmother’s home provided the moist environment in which it could have survived for up to 12 hours. He set out in paragraph 80 of his judgment ways in which F might have been infected by fomite transmission. It is right to note that at paragraph 81, he described the grandmother’s routine with the family towels as “meticulous … some would say exemplary”. But overall he concluded that fomite transmission in that environment was “unlikely … but not impossible””</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Ground one was therefore successful, with the court finding that the judge had failed to factor in the rarity of fomite transmission, attaching excessive weight to the point that such a finding was not impossible.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>On the second ground, the Court of Appeal found that the judge was flawed in his treatment of the lies told by X in evidence. Whilst lies must be treated flexibly within family proceedings, a lie on a material issue might be evidence supporting a finding. Baker LJ noted at [48] that:</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>“He found that X had lied in his evidence about when he discovered he was suffering from gonorrhoea. That lie was plainly capable of supporting the local authority’s case that F had been infected by X through an act of abuse. But the judge concluded, without explaining why, that it was “likely that X made up the story to give a reason for the infection being on the toilet seat or on towels”. He decided that X “has created a narrative which he thinks would tie in with the timings of the discovery of symptoms in F” without explaining why he discounted the possibility that the reason for the false narrative was to conceal the fact that he had abused the child. His ultimate conclusion on this part of the evidence was that “the fact that X has lied does not of itself negate the possibility of F having become infected by reason of X’s lack of personal hygiene.” But as already noted there was no evidence to support this possibility other than the expert evidence that fomite transmission “cannot be totally excluded … due to lack of robust published research evidence”.”</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Ground two was therefore successful, with the court noting that the lies told by X was capable, and in fact more consistent, with the expert evidence that the infection was likely sexually transmitted.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>On the final ground, Baker J was clear that the judge was mistaken on the application of A, B and C (Fact-Finding: Gonorrhoea) (notably a judgment given by Baker LJ). Baker LJ clarified that, his judgment in A, B and C, was within the context on an argument that an infection of gonorrhoea was de facto evidence of sexual abuse and this amounting to a reversal of the burden of proof, with counsel in that case identifying features which suggested non-sexual transmission. Baker LJ at [51] provided that:</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>“It was in that context that, when analysing the submissions at the end of the judgment, I made the observations at paragraph 53 which were cited by the judge in the present case when setting out the relevant law, concluding that the judge in that case had concluded wrongly on the medical evidence that the mere presence of gonorrhoea in the child was determinative of sexual abuse”</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Baker LJ went further, noting at [52] that:</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>“I accept that my judgment in Re A, B and C could have been expressed with greater clarity, but for whatever reason the judge’s reliance on it in the present case led him into error. He seemingly misconstrued paragraph 33 as representing my conclusion as opposed to merely a summary of counsel’s submissions. It was counsel who contended that “a proper survey of the wider canvas would have shown that the presence of gonorrhoea was the only evidence of sexual abuse” and that “all the other features pointed the other way”.”</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Court of Appeal expressed worry over the judge presenting the factors identified by counsel in Re A, B and C as an effective checklist against which to evaluate evidence in the present case. Baker LJ reaffirming that this list was a list drawn by counsel in that case, not a checklist to consider as an art for all such cases.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Concluding, the Court of Appeal held that Re A, B and C was a successful appeal on the ground that the judge did not adequately consider the wider canvas of evidence and did effectively find that the medical evidence alone equated sexual abuse; the issue in this case was that the judge did not adequately consider the expert evidence that the likely cause was sexual contact and the wider canvas supporting this, instead being tied to the fact that fomite transmission was not a factual impossibility.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong><u>Commentary</u></strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The real significance of F and B lies in the way it ensures that Re A, B and C is read contextually and clarifying the box within which that decision squarely fits. Clearly, since 2023, the evidence of a usually sexually transmitted infection not being determinative of sexual contact has been misinterpreted into a starting point or a high bar to overcome. As did the judge at first instance here, treating the “features pointing the other way” as some sort of checklist which can defeat any allegation of abuse based on an infection is not an approach sanctioned by the case law.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Baker LJ was clear that, the list and discussion within Re A, B and C was no more than that, it was useful advocacy within the facts of that case, but never intended to become a template of defining principles. The first-instance judge in Liverpool CC v M, F and P fell into error precisely because he elevated that counsel-drafted list to the status of principle, setting it up against the expert evidence as though the two carried equal weight.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>What the Court of Appeal has clarified is that, just because an infection alone is not conclusive of sexual abuse, this is simply one factor to consider within the broad canvas of evidence. What the law does not, however, say, is that this lack of inherent presumption does anything to the evidential canvas other than to ensure a judge does not place all the weight solely on the infection, and that infection must be contextualised. If two experienced specialists are united in saying that paediatric gonorrhoea is “strongly suggestive” of sexual contact and that non-sexual transfer remains only a theoretical rarity, a judge must then consider that the possibility of an outcome is not the same as the probability of an outcome.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Re A, B and C was never a mandate to discount expert consensus whenever a fanciful alternative can be imagined; it was a reminder not to convict on science alone without canvassing the wider evidence. F and B restores the missing half of that equation: the wider canvas does not licence a court to simply discount what the science says is overwhelmingly likely. Nor does it sanction a “tick-box” defence drawn from someone else’s litigation strategy.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Simply put, F and B does little by way of change or gloss to the law, what it does make clear, is to suggest that any ‘defence’ of fomite transfer is one which is going to be rarely capable of succeeding once the full canvas of evidence is considered alongside the scientific evidence. The presence of gonorrhoea is still not de facto proof of sexual abuse, but alternatives which are “not impossible” are simply not capable of dominating a case by virtue that they technically exist.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The full judgment can be found <a href="https://caselaw.nationalarchives.gov.uk/ewca/civ/2025/340?query=gonorrhoea" target="_blank" rel="noreferrer noopener">here</a>.</p> <!-- /wp:paragraph -->

Neglect Found to Have Contributed to Death Where There Was Post-Operative Bleeding

<!-- wp:paragraph --> <p>Abigail represented the family of Maxine Spittlehouse who underwent a total abdominal hysterectomy at Kinvara Private Hospital on 16 July 2024. The Deceased was being treated as an NHS patient.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Post-operatively, Mrs Spittlehouse suffered significant pain. She then deteriorated overnight with symptoms including pain, tachycardia, reduced urine output, and reduced, and later unrecordable, blood pressures.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Mrs Spittlehouse’s overnight care was provided by a single junior doctor and two nurses. During the night, the two nurses had repeatedly expressed their concerns about Mrs Spittlehouse’s deterioration and stated that they felt that she needed to be transferred to Rotherham District Hospital where post-operative bleeding could be definitively diagnosed and treated.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Coroner found Mrs Spittlehouse had started to suffer with internal bleeding at around 01:30 am and that by 3:30 the junior doctor had thought that this was the cause of Mrs Spittlehouse’s deterioration. Nonetheless, the junior doctor did not seek input from Mrs Spittlehouse’s treating consultant surgeon until after 5am. During that telephone conversation, the Coroner found that the junior doctor failed to convey important information regarding the woman’s deterioration and the consultant failed to ask questions to enable him to identify that Mrs Spittlehouse was suffering with internal bleeding.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>There was then a further delay in transferring Mrs Spittlehouse to a hospital that was equipped to deal with the internal bleeding until after Mrs Spittlehouse had suffered a cardiac arrest after 07:30. Mrs Spittlehouse died of a hypoxic brain injury arising from the cardiac arrest.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Coroner found that there were cumulative failings on the part of the junior doctor and consultant surgeon in failing to ensure that basic checks were made to identify if Mrs Spittlehouse was bleeding internally. These included not obtaining blood results earlier, not escalating concerns to the consultant surgeon earlier and not effecting transfer of Mrs Spittlehouse to a hospital where her internal bleeding could be treated.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Coroner concluded that the high threshold for a finding of neglect as part of her narrative conclusion was met and that, ultimately, Mrs Spittlehouse’s death was avoidable.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>Abigail was instructed by <a href="https://www.medical-solicitors.com/about-us/christine-brown/" target="_blank" rel="noreferrer noopener">Christine Brown</a> and <a href="https://www.medical-solicitors.com/about-us/gita-sarda/" target="_blank" rel="noreferrer noopener">Dr Gita Sarda</a> at Medical Solicitors. Their press release can be found <a href="https://www.medical-solicitors.com/news/inquest-support-for-family-of-fatal-private-hysterectomy-patient/" target="_blank" rel="noreferrer noopener">here</a>. </em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>Further details reported by <a href="https://www.bbc.co.uk/news/articles/c14xd166e08o" target="_blank" rel="noreferrer noopener">the BBC</a>.</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p></p> <!-- /wp:paragraph -->