Jon Comlay, Author at Parklane Plowden

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Parklane Plowden Chambers hosts North Eastern Circuit Women’s Forum International Women’s Day Event

To mark International Women’s Day on 8 March 2025 the North Eastern Circuit Women’s Forum held a breakfast meeting with guest speaker, <a href="https://nikkialdersoncoaching.com/" target="_blank" rel="noreferrer noopener">Nikki Alderson</a>, for female barristers of all practice areas and calls on Circuit.  Nikki delivered a keynote speech on “Breaking Barriers to being your Best” which focussed on mindset, resilience and confidence, and shared practical coaching strategies to empower participants to break barriers to becoming their best at work and beyond.  Participants then engaged in discussion sharing some experiences and ideas.  A clear take-away was the reminder of the importance of ‘controlling the controllables’ in any setting, be it our response to an interaction or event, demands, or expectations.  The International Women’s Day campaign for 2025 theme is “Accelerate Action” for gender equality. The work of the North Eastern Circuit Women’s Forum, chaired by <a href="https://www.parksquarebarristers.co.uk/barrister/kama-mellyqc/" target="_blank" rel="noreferrer noopener">Kama Melly KC</a>, <a href="https://www.parklaneplowden.co.uk/our-barristers/leila-benyounes/" target="_blank" rel="noreferrer noopener">Leila Benyounes</a> and <a href="https://www.newparkcourt.co.uk/barrister/chloe-hudson/" target="_blank" rel="noreferrer noopener">Chloe Hudson</a> continues to support this.  PLP is committed to EDI and working to accelerate action for change. We have an active Equality and Diversity Committee and are invested in initiatives in Chambers, on Circuit, and beyond, to aid bringing about change and advance equality opportunities.

Missed Opportunities to Carry Out an Assessment During Mental Health Crisis

Megan Crowther represented the family of a young man who died after he jumped from the Wearmouth Bridge in Sunderland, whilst suffering an exacerbation of Schizoaffective Disorder. The Deceased had been recently been detained under the Mental Health Act for treatment and was discharged from hospital, around two months before his death, under a Community Treatment Order which allowed for him to be detained again under the Mental Health Act if he required further treatment.  The Inquest heard evidence that the Deceased had revealed an attempt to take his own life around two weeks before his death and as a result, the community treatment team were planning more regular checks on the Deceased. Unfortunately, over the following weekend, the Deceased called the Crisis Team in extreme distress and requested he be admitted to hospital. The Deceased was categorised as ‘very urgent’ for which a face to face assessment was expected within four hours. That did not take place. The Deceased phoned the Crisis Team several times over the following two days and repeated that he had plans to end his life, leading to a statement in his final phone call that he would jump from the bridge unless he was transferred to hospital or new accommodation. The Deceased was known to hear voices, specifically in his accommodation. Unfortunately, the Deceased jumped from the bridge within twenty minutes of the final phone call. There was no assessment of the Deceased in the 48 hours between his first phone call and his sad death.  The Coroner found that there were missed opportunities by the Crisis Team to carry out an earlier assessment of the Deceased, and that an assessment should have been carried out before he died. The Court heard evidence that if the Crisis Team had determined that the Deceased could not be managed in the community at this time, then the Responsible Clinician would have detained the Deceased under the MHA for further treatment. There was also a missed opportunity to call the police when the Deceased made a specific threat to jump from the bridge.  <a href="https://www.parklaneplowden.co.uk/our-barristers/megan-crowther/" target="_blank" rel="noreferrer noopener">Megan Crowther</a> practices clinical negligence, personal injury and inquests. She regularly represents interested persons in a wide range of inquests including complex medical matters and Article 2 inquests.

PLP Hosting North Eastern Circuit International Women’s Day Event

The North Eastern Circuit Women’s Forum is holding a breakfast meeting at 8.30am on Tuesday 4th March at Parklane Plowden Chambers to mark International Women’s Day 2025.  Guest speaker, Nikki Alderson, will deliver a keynote speech on “Breaking Barriers to being your Best” which focuses on mindset / resilience and confidence, and shares practical coaching strategies to empower participants to break barriers to becoming their best at work and beyond.  Please see below for further information and use the link here to book your place: <a href="http://www.northeasterncircuit.co.uk/events/" target="_blank" rel="noreferrer noopener">www.northeasterncircuit.co.uk/events/</a>

Neurodiversity and the Family Courts – New Guidance Seeks to Bridge the Gap

Avaia Williams and Chloe Branton provide an overview and analysis of the new guidance issued by the Family Justice Council on neurodivergence within the family courts.  Introduction  Neurodivergence is a broad term, with the phrase considered to be coined by the sociologist Judy Singer. It commonly refers to people who are diagnosed or present with ADHD, Autistic Spectrum Conditions, and neurodevelopmental conditions such as Dyspraxia, Dyscalculia and Dyslexia. However, the umbrella remains undefined by law, as such the term can include wider, and potentially unexpected, conditions and diagnoses including intellectual disabilities and mental health conditions.  The judiciary, via the Equal Treatment Bench Book, still places neurodiversity under the broad umbrella of ‘mental disability’. Put simply, neurodiversity refers to the different ways a person’s brain processes, retains, and uses information compared to most of society.  Vital guidance has finally been issued on how neurodiversity and the Family Justice System interact, or should interact. In January, the Family Justice Council published guidance on neurodiversity within the family justice system for practitioners, hopefully adding to the sea change currently taking place in family law and moving towards a more understanding approach to many who come into contact with the family courts.  Neurodiversity and What It Means  Neurodiversity acknowledges the natural range of differences in how people’s brains work. Historically, these conditions have often been misunderstood or regarded solely as disorders needing a “cure.” However, there is a growing recognition that neurodivergent individuals simply process and respond to the world differently, and that there is no single, correct way for a brain to function. Neurodiversity recognises cognitive differences between how people think, learn and behave.  They often bring particular strengths (such as attention to detail, creativity, principled thinking) as well as challenges (including difficulty with social interaction, concentration, sequencing information, or sensory overload).  Roughly 15% of the population is thought to be neurodivergent, though accurate figures are complicated by underdiagnosis, stigma and the broad umbrella of neurodiversity Many neurodivergent people, particularly those in minority ethnic groups and older adults, may struggle to obtain a formal diagnosis, or where they do, may not wish to disclose it. In particular, autistic women and girls and those from minority ethnic backgrounds are considered to be underdiagnosed due to outdated stereotypes and diagnostic criteria.  In the context of family proceedings, recognising neurodiversity is important not only for ensuring equitable treatment and fair access to justice, but also for promoting better outcomes for children and families. Unmet needs, whether relating to communication, sensory sensitivities, or comprehension, can negatively impact how parties and witnesses engage with proceedings, risking injustice and procedural unfairness.  Neurodiversity parents in particular can face challenges in the way they are assessed by professionals and real care and attention is needed to ensure fair treatment and assessment. In addition, neurodiverse conditions can be co-morbid (or co-occurring) presenting different challenges for the individual as the support they would benefit from may be different to those who only have 1 of those conditions.    In his foreword to the guidance, the President of the Family Division, a Chair of the Family Justice Council, Sir Andrew McFarlane, notes that:  “The universally applicable principle upon which the guidance sits, is that understanding an individual’s needs leads to better participation, and more effective justice. This principle encourages a system that, with relatively light adjustments, can improve participation and outcomes for children and families.  I encourage practitioners working within the Family Justice System to read the guidance carefully and to consider how they can adopt best practice.”  Breakdown of the Guidance  The recent guidance is built upon the principle that understanding an individual’s needs leads to better participation and more effective justice. It highlights several core areas:  Recognising Neurodivergence  Beginning with the beginning, the guidance gives an overview to terminology, and why this is important, outlining terms such as “neurotypical” (the ‘neuro majority’) and “neurodivergent” (the ‘neuro minority’) and underscores that each individual will have a unique profile of strengths and needs. Helpfully, the guidance provides a table of limitations and strengths which may be experienced by those with specific conditions, this includes things like communication difficulties for those with autism and strong verbal skills for those with dyslexia. This table will be particularly helpful for those who are new to the concept of neurodiversity, and will be a useful tool for practitioners.  Of particular note, the guidance gives an overview of ‘masking’; many neurodivergent individuals develop coping strategies to hide their traits and to ‘fit in’, particularly in stressful settings like courts. This can be exhausting and may lead professionals to underestimate or overlook support needs. The guidance describes masking as:  “…when someone uses strategies to make signs of their neurodivergence less obvious to other people. ‘Masking’ can often be a difficult and exhausting process. With or without ‘masking’, neurodivergence is often not obvious from the outside.”  Whilst the guidance is in broad terms, it is important to note that, neurodivergence is specific to each individual, as the guidance notes:  “Each neurodivergent person will have their own unique profile and support needs with a wide range of presentations. Unhelpful stereotypes and inaccurate assumptions may compound problems in identifying neurodivergence, especially people in minority ethnic groups, women, and older people.”  Why It Matters in Family Proceedings  While data on the topic is quite limited, there is strong evidence that neurodivergent people are overrepresented among court users. Underdiagnosis (especially among women and minority ethnic groups) further complicates the picture. The guidance suggests that a failure to account for neurodivergence within family justice will impact children and families, notably in two key ways:  <ol class="wp-block-list"> <li>In assessments, whether undertaken pre-proceedings or during proceedings, or even after in some cases (the clear consequence of failing to consider neurodivergence in assessments, such as parenting assessments, being that the conclusions or analysis may be inherently flawed). </li>  <li>As barriers to effective participation, thereby restricting justice and access to a fair trial (simply put, in the same way we put in participation measures for vulnerable witnesses to ensure they best engage, a failure to account for any measures that may support neurodivergent people naturally results in them not best engaging in proceedings).</li> </ol>  The guidance references Articles 6 (right to a fair trial) and 8 (the right to respect for private and family life) of the European Convention, plus Article 12 of the UN Convention on the Rights of the Child (UNCRC) which concerns respecting the views of the child, recognising each child has the right to express their views, feelings and wishes. These rights underscore the requirement that all parties and children can participate meaningfully, and demonstrates the risk of not considering the impact of any neurodivergence. The guidance states:  “…neurodivergent adults or children may not have the benefit of a full understanding of their functioning. This underlines the importance of practitioners being aware of neurodivergence and how it affects individuals, especially children. That awareness is vital when considering if the parenting of a child meets the ‘good enough’ standard as well as what support families might need in providing a particular child with ‘good enough’ parenting.”  The scope of the guidance is aimed at addressing barriers to participation and ensure fair treatment. D and E (Parent with Autism) [2020] EWFC B18 set out the importance of recognising the needs of neurodivergent participants in the family courts, noting at [148]:  “That no parent must be precluded from being able to parent effectively on account of a disability is a bedrock principle of family law. The extensive specialist expert evidence in this case reaffirms the importance of recognising that parents with autism are as individual as any other parent. There is a risk that professionals may apply a set of criteria or expectations in relation to parents in light of a diagnosis of autism without fully exploring that parent's strengths and weaknesses. It is also important that a parent does not begin to explain or justify any difficulties in their parenting purely because of a diagnosis of autism. It is equally, if not more important, for professionals working with parents with autism to be alert to and take account of the parent's individual needs when working with them, bearing in mind at all times the well-established principle that intervention by a Local Authority in a family may be appropriate but that the aim should be to reunite the family when the circumstances enable that and the effort should be devoted towards that end. The Court's assessment of a parent's ability to discharge their responsibilities towards the child must always take into account the assistance and support which the authorities can offer, tailored to that parent's individual needs. Those needs must be assessed carefully, by skilled professionals, specific to that parent, without applying generalised criteria or expectations.”  Key Research and Themes  The guidance compiles emerging research showing:  <ul class="wp-block-list"> <li>Stigma and stereotypes often lead to misunderstandings of behaviours or communication styles in court.</li>  <li>Communication differences (such as a preference for direct, literal language or a need for extra processing time) can be mistaken for evasiveness.</li>  <li>Anxiety and stress are heightened for neurodivergent people, risking “shut down” or “meltdown” responses if proceedings are not adapted.</li>  <li>Invisible disabilities, including neurodivergence, pose challenges in ensuring recognition and appropriate support, especially if no formal diagnosis exists.</li> </ul>  Whilst there is little research in this area (though much is underway), the guidance is clear that:  “Reframing the narrative around neurodivergent people - from disordered to different and equally valid ways of experiencing the world - is an important element of much of the available research.”  Research into legal professionals’ knowledge of autistic adults in the Family Justice System shows that there is a lack of confidence in working with such adults. Specific training and experience in working with those with autism can increase this confidence and ensure greater access to justice. Whilst it is not established this is the case for other types of neurodivergence, it is difficult to see why this would not be the case.  The themes that are apparent are that neurodiverse people find it more challenging to engage in proceedings. Including processing information, responding to questions, recalling information, participating in the normal course of a hearing and understanding outcomes. Reminding advocates of what was said in R v Lubemba; R v JP [2014] EWCA Crim 2064:  “Advocates must adapt to the witness, not the other way round.”  Best Practice in Identifying and Meeting Needs  The guidance notes that, having a framework for thinking about, understanding, and responding would be useful. A framework, developed for autism but which has useful applications across neurodivergence, called SPELL is offered as a valid approach:  <ul class="wp-block-list"> <li>Structure, reducing anxiety and removing ambiguity</li>  <li>Positive attitudes, clear communication and respectful narratives, playing to the client’s strengths</li>  <li>Empathy, understanding the person’s experiences from their own perspective</li>  <li>Low arousal, ensuring sensitivities to sensory needs and avoiding confrontation</li>  <li>Links, consistency and connection including the person in decisions</li> </ul>  There is a need for early identification, the guidance states:  “In every case, at the earliest stage, thought should be given to whether someone might be neurodivergent. If there is an existing diagnosis, this should be accessed (if the individual concerned agrees to this). If there is an existing diagnosis further information may also be required (which can include expert assessment when necessary) in order to understand that person’s needs, strengths and the barriers which they might face.  If there is no existing diagnosis the first step for a practitioner is undertaking the exercise described below in circumstances where neurodivergence may present.”  The guidance suggests questions which could be asked that, whilst do not form screening or any diagnosis, can be helpful in advocates identifying if there may be any vulnerabilities with respect to neurodivergence.  Overcoming Barriers  It is important to understand the barriers that the person may face, this includes barriers away from court or whilst at court but outside of giving evidence. The FJC advise that a list is prepared which can be kept under review, and also notes that, it is important to  know when external assessment may be required.  Once barriers have been identified, a ‘one size fits all’ approach must be avoided. Even where there is a clear diagnosis, the individual needs should be what is focused on, not the label. Judges at Milton Keynes have introduced participation directions that are individual needs led where, unless a very good reason is identified not to, the adjustment is allowed.  The most commonly required types of adjustments are those to a) communication; b) the environment; and c) the structure and timing of the process. The guidance provides a detailed overview of some example adjustments to each of these area such as:  Communication – written communication over verbal, formulating questions in a way that considers literal interpretation, building in strategies to check understanding, and avoiding abstract language.  Environment – removing distracting objects, adjusting lighting where possible, using fidget or comfort toys, and providing a familiarisation visit.  Structure – giving evidence at a particular time of day, ensuring regular breaks, sticking to any agreed timetable, and ensuring clarity about what will happen and when.  “Many people involved in the Family Justice System will already be aware of some of the more common adjustments when a vulnerable party is giving evidence […] But often more specific and creative adjustments can be invaluable for neurodivergent people. A good example of this is seen in the case of C (Children: Welfare) (No.2) [2020] EWFC B36, where a unique procedure was devised with the help of an intermediary to enable a party to type their answers when giving evidence.”  Analysis and Opinion  The new FJC guidance represents an important step forward. It brings together existing research and best practices in a way that is practical and digestible to court users. Crucially, it foregrounds how relatively simple modifications (shorter sentences, scheduled breaks, sensory-friendly rooms) can transform the experiences of, and importantly outcomes for, neurodivergent people and their families.  However, while the guidance effectively signals that neurodivergent needs must be recognised, and provides a grounded way to do this, its impact is going to hinge on consistent adoption by all court users. Training and awareness, across all levels of the Family Justice System, including judges, clerks, security staff, advocates and intermediaries, remain vital. Courts and practitioners should be prepared to adapt to each individual, rather than expecting the individual to adapt to the existing system unassisted.  As best practice, advocates should consider the existing advocates’ toolkits and adapt them appropriately to suit each witness when providing oral evidence. Where an intermediary or other expert report is available this should be considered at each hearing and alongside the particular toolkits. Advocates must, however, be cautious to not adopt a black and white approach to working with or interacting with neurodiverse court users.  Why It Matters for Participants in the Family Court  Family proceedings are often a source of considerable anxiety and pressure for participants who are not neurodiverse. For those who are neurodiverse, those emotions can be even more heightened. For families and children navigating some of the most sensitive and stressful proceedings of their lives, meeting neurodivergent needs is more than a courtesy; it is a legal and ethical imperative, aimed at achieving the interests of justice and complying with the rule of law.  Inadequate adaptations and adjustments can result in misunderstandings of communication or behaviour, potentially leading to adverse credibility findings and unfair judgments. This can further increase already heightened anxiety and distress, in turn impeding effective participation and possibly resulting in additional trauma for those already in a vulnerable state.  When properly implemented, the adjustments set out in the guidance not only protect rights but also enhance the quality of the evidence and the fairness of outcomes, producing a process that is truly just for all.  Why It Matters More Widely  Neurodiversity is still too often overlooked or misunderstood, and the new guidance aims to encourage a broader cultural shift in attitudes and practices. By raising awareness, it helps to destigmatise neurodivergence and fosters more open conversations about different communication styles and support needs. This heightened understanding paves the way for inclusive approaches in the courtroom, so that both court users and legal professionals benefit from an environment where diverse cognitive profiles are not only recognised but also valued and accommodated.  Crucially, this emphasis on inclusivity can drive meaningful systemic change across the board. When practitioners collaborate on consistent strategies for support, people who come before the courts, particularly those with invisible conditions, are more likely to receive the adaptations they need. Such joined-up thinking leads to fairer, more accurate fact-finding processes and reduces the risk of misinterpretation or undue stress for neurodivergent participants.  Why it Matters for Judges and Lawyers  Judges play a lead role in shaping courtroom culture and overseeing how legal obligations are carried out. By actively engaging with the guidance, they can formalise measures such as ground rules hearings and tailored instructions to counsel that specifically cater to neurodivergent needs. In this way, judicial leadership signals to practitioners that effective adjustments are critical to achieving just outcomes. It also helps avoid common pitfalls, such as misreading stimming behaviour or literal communication styles, which can lead to misunderstandings, appeals, and ultimately a loss of confidence in the justice system.  Barristers and solicitors who thoroughly understand and apply the guidance are better placed to represent their clients empathetically and accurately, ensuring that instructions are taken in ways that are accessible. By identifying potential vulnerabilities early, practitioners can avoid wasted hearings or adjournments caused by unmet needs, thus enhancing both efficiency and fairness. Alongside this improved case management, the profession itself stands to gain from a commitment to inclusivity; many lawyers, court staff, and other professionals are themselves neurodivergent and may find traditional legal settings challenging. Greater awareness and adjustments can create a more supportive workplace culture and encourage greater diversity within the profession’s ranks.  Conclusions  This new guidance offers an essential framework for practitioners who seek to ensure that all court users, especially those who are neurodivergent, are properly understood and fully supported. It emphasises that failure to recognise neurodiversity can have profound consequences, not only for the rights and wellbeing of parents, children, and witnesses but also for the fair administration of justice. By highlighting the experiences and strengths of neurodivergent people, the guidance underscores that reasonable adjustments (such as tailored communication methods, a more sensory-friendly environment, and flexible structures for giving evidence) can be both straightforward to implement and transformative in outcome.  Ultimately, the practical impact of this guidance will depend on how widely and consistently it is adopted. Judges, legal professionals, and all those involved in the family justice process have a collective duty to embed these principles in daily practice. If embraced wholeheartedly, they can open the door to a more inclusive system that serves the needs of every participant. This is vital not only to uphold fundamental legal standards – such as the right to a fair trial – but also to foster confidence in the Family Court as an institution that genuinely responds to the diversity of those it serves. By doing so, we take a significant step toward ensuring that neurodivergent individuals, along with their families, experience a process that is empathetic, equitable, and truly just.  In his foreword to the guidance, the President of the Family Division (and Chair of the Family Justice Council) Sir Andrew McFarlane confirmed that guidance for the Judiciary will follow later this year. Such guidance will be welcomed and of great utility for the judiciary and practitioners alike.  <a href="https://www.parklaneplowden.co.uk/our-barristers/avaia-williams-pupil/" target="_blank" rel="noreferrer noopener">Avaia</a> is a first six pupil under the supervision of Sara Anning and Rebecca Musgrove and will be taking instructions on all aspects of children law from April 2025. He has a particular interest in transparency, access to justice and ensuring broad participation within the family courts.  <a href="https://www.parklaneplowden.co.uk/our-barristers/chloe-branton/" target="_blank" rel="noreferrer noopener">Chloe</a> is a tenant at Parklane Plowden, having completed her pupillage in 2020. Chloe practices largely in public and private children law representing parents, children, Local Authorities and intervenors. As an autistic barrister, Chloe has developed a particular interest in cases involving 1 or more of the parties being neurodivergent. Chloe has written articles for publications including the Family Law Journal and is co-chair of the North Eastern Circuit Neurodiversity Network.

Howard Elgot Settles Fatal Post-Natal Sepsis Claim against County Durham and Darlington NHS Foundation Trust, Dr James Carlton and NEAS

The Names of the Claimants and Dependent Children were Anonymised at the Approval by the High Court on 17th February 2025  Anonymity The Court of Appeal is to hear the appeal in PMC v A Local Health Authority next week. In the meantime on 17th February 2025 HH Judge Siddique, sitting as a Judge of the High Court, ordered that the Claimants and child Dependants be anonymised in standard form with the court to review the order on the first CMC to deal with quantum, on the first open date at 1st October 2025. This was a very satisfactory outcome for the family, given the current uncertainties. The Claim A mother of three children gave birth to the fourth child at the Darlington Memorial Hospital on 31st March 2019. She was discharged the same day. She suffered a Group A Streptococcal puerperal infection which commenced during labour or shortly thereafter. She died of her infection on the morning of 3rd April 2019. There were claims against the community midwife who visited the mother on the morning following the birth, the mother’s GP who prescribed codeine for her without speaking to her or her partner, the ambulance personnel who attended the mother in the early hours of the following morning, and against the doctors at the Darlington Memorial Hospital where she re-attended after having been brought there by ambulance. The claims were listed for a 12 day trial on liability only in the High Court from 17th February 2025. There were considerable difficulties to overcome. First HSIB had carried out a detailed independent investigation into the circumstances of the mother’s death. Although criticism was levelled at the ambulance service and the hospital, no criticism was levelled at the community midwife or the GP. Furthermore the authors of the HSIB report were somewhat sceptical as to whether the mother could have been saved absent delays by the ambulance service or at the hospital. An inquest into the death of the mother was held at which the Coroner was critical of the doctors at the hospital, but not of the ambulance service, the community midwife or the GP. The Coroner called expert evidence on causation which strongly supported the argument that by the time the ambulance arrived at the mother’s house it was too late to save her, whatever treatment she was given. We felt that the claim against the community midwife was the strongest. Although she had a checklist to complete which included “state of the uterus,” she did not palpate the uterus at all, instead writing “afterpains N/P”, N/P being her abbreviation for not palpated. Working back from the tragic outcome, the consultants in infectious diseases agreed in their joint report that had the midwife palpated the mother’s uterus she would have elicited lower abdominal and specifically uterine tenderness in excess of postpartum tenderness, and atypical for afterpains. Nevertheless the Defendants’ expert midwife pointed to the NICE Guidance then extant that “in the absence of abnormal vaginal loss, assessment of the uterus by abdominal palpation or measurement as a routine observation is unnecessary.” The mother did not suffer any abnormal vaginal loss. The claim against the GP turned upon whether he should have spoken to the mother before prescribing codeine. The codeine was requested by the mother’s partner to the GP’s receptionist. We noted that there are no GMC, NICE, Royal College or defence union references or guidelines relating to the prescription of drugs at the request of a lay third party. The Defendants argued that whilst guidelines suggest the need to always have direct contact with the patient before prescribing, it is the case that due to the realities of day to day practice this is not always possible in NHS primary care. By the time of the JSM it was clear that even 30 minutes of delay by the ambulance service personnel would be unlikely to affect the decision on causation that the court would have to make. As a term of the settlement we discontinued against NEAS, although NEAS agreed to be jointly and severally liable for the Claimants’ costs. Negligence at the hospital was admitted. The HSIB report was scathing, and the doctors from the hospital at the Inquest were profoundly apologetic. In particular when we questioned Dr Arasappan, Consultant in Emergency Medicine, at the Inquest, he stated that he would have given antibiotics by 04.45. The important question was, in effect, when would antibiotics and other appropriate measures have saved the mother? Following the joint statements the position was as follows:- Prof Lever, Consultant in Infectious Diseases 06.15 Dr Short, Consultant Intensivist 06.00 Dr Greenstone, Consultant in Infectious Diseases 01.00 – 03.00 Dr McCrirrick, Consultant Intensivist early the previous evening At the end of the day we felt that a settlement for 77.5% of the full value of the claim was the best that we were going to do without going through a 12 day trial, the result of which was likely to be positive, but certainly not guaranteed.

Ashes, Funerals, and Family Conflict

Read v Hoarean [2024] EWHC 3274 (Ch)  There is no right of ownership in a dead body and disputes can, and regularly do, arise over funeral arrangements and the final resting place of the body or ashes of a loved one. These disputes can be particularly fraught when the Deceased was a child and the parents cannot agree.  In Read v Hoarean, the Deceased was 18 years old when he took his own life in 2024. As the Deceased died unmarried, without children, and intestate, the persons with the right to call for his body to arrange the funeral and proper disposal were his parents<a id="_ftnref1" href="#_ftn1">[1]</a>. His parents were separated and did not enjoy a good relationship, having been involved in protracted and hostile litigation in the family courts when the Deceased was younger. At the time of his death the Deceased was experiencing mental health difficulties and was living in assisted living. He enjoyed a close relationship with his father but had had no direct contact with his mother since 2016.  The parents were agreed as to the location of the funeral and that the Deceased should be cremated but could not agree over the identity of the funeral director or what should happen to the ashes. The father wished the ashes to be scattered on Dartmoor. The mother wanted the ashes to be divided between the parents so that she could inter her half in her family’s grave. The mother’s position was set out in the judgment:  She said that she could not see why dividing the ashes would be disrespectful, she just simply could not see why, because he was equally part of both of them, and if his ashes were scattered they would be lost to the wind, that she cannot go and say goodbye to her son, so that is why she proposed that there be two ceremonies and that Theo’s ashes be divided equally between the parents so, as she describes, each got what they want.  The father considered that the division of ashes was morbid and disrespectful and it was noted that “he plainly felt very strongly about this”. The father agreed that there should be two funeral services.  Having reviewed a number of cases, Chief Master Schuman concluded that body disputes are highly fact sensitive, but that in considering the wishes of the Deceased, their family, and friends, and the location with which the Deceased was mostly connected, the overarching principle is that there should be a decent and respectful disposal of the body without undue delay.  Having heard evidence from both parents and read witness statements from other witnesses including the Deceased’s friends and wider family members, Chief Master Shuman concluded that she did not know what the Deceased’s wishes were, but that the Deceased had close connections and a feeling of peace when at Dartmoor. Chief Master Shuman therefore ordered that Letters of Administration limited to dealing with the disposal of the Deceased’s body and thereafter his ashes should be made to the father. It was further ordered that the mother should be permitted an opportunity to spend time with the Deceased before the cremation, and that some personal items belonging to the Deceased should be given to the mother. If the mother and father could not agree on the funeral, the mother was to be permitted to have her own service beforehand.  The practical effect of the order was that the ashes were not to be split, although the Master made no specific comment on this issue, or on the case of Fessi v Whitmore<a href="#_ftn2" id="_ftnref2">[2]</a>, to which the Master referred, where Judge Boggis QC rejected splitting the ashes of a 12 year old child between his parents, describing the submission as “wholly inappropriate”.  Comment  The compromise of holding two funeral services is one I see regularly in practice, along with an agreement that one party will hold a funeral before the burial/cremation and another party will hold a memorial service afterwards. But disputes over ashes can be much more difficult to resolve.  In Read, the parties aired their arguments about what should happen to the ashes before the cremation, and in granting the father the right to Letters of Administration pursuant to s.116 of the Senior Courts Act 1981/the inherent jurisdiction of the court, the court settled the issue by determining that the father was the party who could scatter the ashes. But many ashes disputes arise only after the cremation (sometimes years later) by which time of course the body has already been disposed of and there is usually one party in possession of the ashes.  Although it has been clearly established for many years that there is no right of ownership to a dead body, the position with ashes is not as clear cut, and ashes have been deemed by the court to be property which can be owned. In the Australian case of Leeburn v Derndorfer<a id="_ftnref3" href="#_ftn3">[3]</a> Byrne J, sitting in the Supreme Court of Victoria said,  “Moreover, so long as they are not dispersed or otherwise lose their physical character as ashes, they may be owned and possessed. To my mind, therefore, it is apt to characterise the legal status of the ashes as similar to that of the preserved body in Doodeward v Spence<a id="_ftnref4" href="#_ftn4">[4]</a>. In this way the application of fire to the cremated body is to be seen as the application to it of work or skill which has transformed it from flesh and blood to ashes, from corruptible material to material which is less so. The legal consequence of this accords with what I apprehend to be the community attitude and practice. Ashes which have in this way been preserved in specie are the subject of ordinary rights of property, subject to one possible qualification. In this way, ownership in the ashes may pass by sale or gift or otherwise. The only qualification, which, if it exists, may require some working out, arises from the fact that the ashes are, after all, the remains of a human being and for that reason they should be treated with appropriate respect and reverence.”  Byrne J then concluded that the executors held the ashes as trustees for the “purpose of disposing or dealing with them in a way that seems to them to be appropriate having regard to any direction of the deceased in the will or otherwise and having regard to the claims of the relatives or others with an interest.”  The conclusion reached by Byrne J, that the process of cremation has the result of transforming the ashes into property, was followed by DJ Marin in DP v JCP<a href="#_ftn5" id="_ftnref5">[5]</a> who held that an executor in possession of ashes holds them on trust for the purposes of the family disposing of them, and Judge Boggis QC in Fessi determined the ashes dispute on the basis that the court was being asked to resolve a dispute between two trustees.  It can therefore be seen that disputes over ashes which arise subsequent to the cremation are not going to be resolved by making a s.116 application to appoint a Personal Representative, but will be proceedings under CPR 64 for determination of an issue arising out of a trust.   Nicola Phillipson TEP  February 2025  Nicola Phillipson is a barrister at Parklane Plowden Chambers specialising in Probate, Inheritance, and Trusts, and is the author of <a href="http://www.lawbriefpublishing.com/product/controlofthebodyafterdeath/" target="_blank" rel="noreferrer noopener">A Practical Guide to the Law in Relation to Control of the Body after Death (Law Brief Publishing)</a>  <figure class="wp-block-image size-full is-resized"><img src="https://www.parklaneplowden.co.uk/app/uploads/2025/02/image.jpeg" alt="" class="wp-image-10766" style="width:57px;height:auto"/></figure>  <hr class="wp-block-separator has-alpha-channel-opacity"/>  <a href="#_ftnref1" id="_ftn1">[1]</a> Rule 22 of the Non-Contentious Probate Rules 1987  <a href="#_ftnref2" id="_ftn2">[2]</a> [1999] 1 FLR 767  <a href="#_ftnref3" id="_ftn3">[3]</a> [2004] WTLR 867c  <a href="#_ftnref4" id="_ftn4">[4]</a> [1908] HCA 45; (1908) 6 CLR 406 at 412, per Griffith CJ.  <a href="#_ftnref5" id="_ftn5">[5]</a> [2010] COP 11692737

Consensual Adoption – PLWG Best Practice: A Guide

And so it was, the final article in my series covering the Public Law Working Group’s recommendations for best practice for adoption. For the final part of the series, we consider Chapter 5 of the report. This section takes a look at adoptions which are processed and ordered by the consent of the biological parent/s, that is, where the parents agree to the child being placed for adoption, or being adopted by a specific individual.  Whilst adoption by consent is an issue which, on the board of adoption matters generally, takes up a small place, it is a vitally important area. The decision to relinquish a baby is a significant and life-changing choice – currently, the availability of expert and professional services to respond to these cases is limited at best.  As with previous articles in the series, this follows the general chronology and sub-headings of the report to ensure consistency and to break the report down into a bite sized and user-friendly guide as to the recommendations.   Introduction  From 1926, those who cared for a baby who was not their biological child, could acquire an adoption order resulting in those carers legally being seen as birth parents. The 1926 Act ensured that consensual adoption was clearly focused on the child’s welfare and the consent was given fully informed and without reward or payment.  The Act significantly increased the number of children who were adopted, but the societal issues surrounding women becoming pregnant before marriage continued with full force. There were no measures in place to support such women, or even the children.  A 2022 report by the Joint Parliamentary Committee on Human Rights for the years 1949-1976 resulted from the testimonies of women who had their lives damaged by the pressures to ‘give up their baby’ for adoption. As the report summarises:  “Many young women were sent away from home to conceal their pregnancy, and many spent their final weeks of pregnancy and weeks after the birth in mother and baby homes. Some of our witnesses recounted the abuse they faced whilst away from home. We were struck by descriptions of the ways in which the women were being “punished” for what was seen as a transgression. There was an overwhelming feeling amongst the mothers we heard from that their treatment during and after giving birth was deliberate punishment for their pregnancy while unmarried”  Over the years, support increased for single parents, and the pressure on mothers to ‘give up their babies’ for adoption reduced. By the 1980’s, adoptions fell by over half. As of 2015, the number of children being adopted from care hit a high of 5360 and have since reduced continually.  A significant reason for this reduction includes the Supreme Court case of Re B [2013] UKSC 33 and the clarification provided thereafter in Re B-S (Children) [2013] EWCA Civ 1146 – producing the phrase all within the adoption sphere are aware of, “nothing else will do.”  That being said, the PLWG note that:  “Although the numbers are not large, there remains a steady number of cases where birth mothers (sometimes supported by the birth father) seek to relinquish the baby for adoption at birth. A number of these cases involve families who are foreign nationals.”  The aim of the subgroup was to look at this marginal, yet societally and practically complex issue.   Legal Framework  s.19 of the Adoption and Children Act 2002 (“ACA 2002”) sets the framework for consensual adoptions:  “(1)Where an adoption agency is satisfied that each parent or guardian of a child has consented to the child— (a) being placed for adoption with prospective adopters identified in the consent, or (b) being placed for adoption with any prospective adopters who may be chosen by the agency, and has not withdrawn the consent, the agency is authorised to place the child for adoption accordingly.”  The child’s welfare remaining a considerable factor.  Despite being a consensual process, there remains a significant role for the adoption agency. When a parent approaches an adoption agency to relinquish their child, that agency must offer counselling to explore the options and to understand the process and consequences. Such referrals can come from the mother, the hospital, or a family member or community individual.  Some mothers will not engage in the process, occasionally leaving the hospital alone and avoiding further contact (it is vital to note that no judgment is, or should be, cast upon such mothers, the circumstances and thinking of such women are unlikely to ever be known by any professionals – for most, the decision is as child centred as they come).  Where counselling is engaged in, the Working Group are clear that:  “This requires both experience and expertise and time and resources from the professional providing that counselling as well as sufficient support being available to the professional to ensure the highest quality of practice in enabling these life changing decisions.”  Given the re-structuring of adoption services through Regional Adoption Agencies, uncertainty has developed around who is responsible for certain services. It may not be clear to families who to contact, especially at a time of such struggle, when timeliness is so key.  In 2021, over 200,000 pregnancies were terminated, with the rates for those under 18 dropping. Many professionals are clear that, in a significant number of cases, mothers seeking to relinquish their baby only became aware of their pregnancy late in term. As Mr Justice Holman stated in Z County Council v R [2001] 1 FLR 365:  “Adoption exists to serve many social needs. But high among them has been, historically, the desire or need of some mothers to be able to conceal from their own family and friends, the fact of the pregnancy and birth. So far as I know, it has not previously been suggested, nor judicially determined, that that confidentiality of the mother cannot be respected and maintained. If it is now to be eroded, there is, in my judgment, a real risk that more pregnant women would seek abortions or give birth secretly, to the risk of both themselves and their babies… There is, in my judgment, a strong social need, if it is lawful, to continue to enable some mothers, such as this mother, to make discreet, dignified and humane arrangements for the birth and subsequent adoption of their babies, without their families knowing anything about it, if the mother, for good reason, so wishes.”  In Re A, B and C (Notification of Fathers and Relatives) [2020] EWCA Civ 41, the court grappled with the question of whether fathers should be notified of cases where the mother seeks to relinquish their child. The Court of Appeal set out the principles governing such decisions.  <ol class="wp-block-list"> <li>The law does provide for ‘fast-track’ adoptions where all those with parental responsibility consent. The mothers Article 8 rights can only be infringed where necessary.</li>  <li>The nature of adoption is capable of justifying the overriding of those rights, but turns on each case.</li>  <li>The decision is one which requires priority, urgency, and thoroughness.</li>  <li>The Judge must establish the facts as clearly as possible. The reasons for such relinquishments must be treated respectfully, but their account must be scrutinised given it is one sided, as such, as much information should be gathered without breaching confidentiality.</li>  <li>There must be struck a fair balance between those interests involved, with the welfare of the child being important, but not paramount.</li>  <li>There is no single test for all cases, but key themes will be relevant: <ul class="wp-block-list"> <li>Only where compelling should a father who holds parental responsibility not be notified.</li>  <li>The more established the family life (Article 8), or potential such rights, the stronger the reasons to withhold notification.</li>  <li>The substance of the relationships between interested persons must be assessed, ensuring those who are silent are given a voice. Essentially, if their voice were known, what may the person say.</li>  <li>Is there a realistic family placement. If there clearly no viable placements via the father’s family, the need to maintain confidentiality are strengthened.</li>  <li>The impact on the mother is key. Where she would be at serious risk (such as sexual assault or honour based violence) this must weigh heavily. However, short term difficulties must not prevail.</li>  <li>Cultural and religious factors must be considered, particularly where these connections may be important for the child as they grow.</li>  <li>A mother cannot be forced to provide confidential information, including the details of the father. The court must consider the likelihood of the confidential information becoming known at a later date.</li>  <li>Whether notification will delay the outcome for the child, whilst not a key factor, it is important to consider the impact such delay may have.</li>  <li>All other relevant matters, axiomatically, are relevant.</li> </ul> </li> </ol>  Despite the clear guidance from the higher courts, there remains an issue of the procedure not being complied with; in A Local Authority v C , M and The Prospective Adopters [2023] EWFC 17, by the time of final order, proceedings had lasted 20 months. Such cases are, of course, very difficult and, as noted by the Working Group:  “…there is a risk that pregnant women who face very high hurdles in placing the baby for adoption may choose not to cooperate with the local authority or worse still to give birth in secret.”  Similarly to adoption agencies, CAFCASS also play a significant role in consensual adoption. CAFCASS have issued thorough guidance on good practice in these cases, notably, this sets out the information which should be provided to birth parents in reaching a decision about the child’s future and ensuring that the decision is made such that it can be implemented lawfully with the future consequences being fully addressed.  The PLWG note that:  “Birth parents considering adoption, need to have access to independent legal advice in order to fully understand their rights and options, including the short and long-term consequences for them and their child (and indeed other children that they may have). For those unable to pay, public funding is very restricted however, costs can be covered by the Regional Adoption Agency or local authority.”   Recommendations  Given the marginal nature of consensual adoption, the recommendations of the Working Group are similarly slim, however, the issue is an exceptionally important one and it is vital that decision making is properly informed and progressed properly. As such, the PLWG recommend that:  <ol class="wp-block-list"> <li>There must be focussed training for adoption workers on relinquishment cases. Given these situations are rare, when they do arise, there is often nobody experienced able to deal with them.</li>  <li>There should be a national strategy for relinquishment cases, with agencies establishing clear plans and principles.</li>  <li>Where possible, pre-birth planning should take place, this could include the need to apply to the courts as early as possible.</li>  <li>Early Permanence Placements should be considered for babies relinquished at birth.</li>  <li>There should be regional hubs created to provide information and expertise to parents, with longer terms support being available, including, where appropriate, securing the maintenance of relationships between the child and birth parents.</li>  <li>The consent forms which are signed by parents should be reviewed to ensure they are as clear and as straightforward as possible.</li>  <li>Legal aid should be available for parents considering relinquishing their baby. This should be available both before and after birth.</li> </ol>   Consultation Replies  “The consultation responses were diverse in their focus and comprehensive in their recommendations. It is clear that a number of the issues identified in the responses were seen to be a priority.”  Challenges to the current adoption system include: modernising contact post adoption; the proper processing and availability of access to adoption records; and the pressures on adoption professionals, including financial constraints on the public sector.  With respect to adoption by consent, the responses identified a fall in referrals regarding unplanned pregnancy. This fall appears to result from a) a reduction in women coming to the UK from Europe; and b) women at university accessing effective contraception and/or abortion services.  Unplanned pregnancies are a stressful experience and can cause a significant crisis for the women and those around her, including the father. There are also practical concerns, notably income, housing, and lifestyle changes. Most importantly, of course, are the needs of the child and their experiences.  The limited number of cases is having a noticeable impact on the availability of quality services where such cases do arrive, given the ability to adoption services to develop clear expertise in this area is low. The PLWG reports that adoption judges in Birmingham responded to the consultation, noting that:  “We see relatively few applications for adoption by consent. Our experience in Birmingham is the same as elsewhere in that social work managers are under considerable pressure. In addition, social work managers are often relatively inexperienced, compared to 10 years ago […] There are a small number of cases. We agree that as a result, there are limited opportunities to build expertise.”  This reinforces the need for focussed training for social workers and CAFCASS to be able to deal with consensual adoption cases. It is important to remember that, at the centre of each case, are the individual women faced with such life-changing issues, this demands expert professionals.  The absence of localised expertise and experience is significant, this requires coordinated practice improvement across the board, to ensure that services are able to provide:  <ul class="wp-block-list"> <li>Individualised information</li>  <li>Services which enable workable solutions for the families</li>  <li>Legal support</li>  <li>Healthcare support</li>  <li>Practical support</li> </ul>  As noted by the Working Group, this is a serious challenge, but:  “…a humanistic society does have a duty to provide support in finding workable solutions for individuals faced with life changing circumstances, both mother and baby.”   Conclusion  The PLWG’s recommendations on consensual adoption highlights the need for a more structured, supportive, and informed process for birth parents who choose to relinquish their child for adoption, whatever the reasons may be. While such cases are relatively rare, they are nonetheless important and present unique challenges that demand specialist knowledge and careful handling to ensure that both the rights of the parents and the welfare of the child are properly safeguarded. The report’s proposals focus on improving the accessibility of information, enhancing professional expertise, and ensuring that decision-making is fully informed and lawfully implemented.  The overarching recommendation is the need for dedicated training for adoption professionals, given the infrequency of these cases. Without a pool of experienced practitioners, the risk of procedural missteps and inadequate support increases (a matter we see more routinely with international cases). Establishing regional hubs and national strategies would provide a more consistent and reliable framework, ensuring that those faced with the life-changing decision of relinquishment receive expert guidance, legal support, and practical assistance, or those dealing with such cases able to access specialist oversight.  The issue of parental consent in adoption is particularly sensitive, requiring careful balancing of the mother’s right to privacy with the need to ensure that all relevant parties, including the father and extended family, are considered. The case law underscores the importance of a fair and thorough assessment, ensuring that mothers who wish to maintain confidentiality are afforded appropriate protections while still prioritising the child’s long-term welfare. The provision of early permanence placements and clearer consent forms would further streamline this process, reducing delays that can be distressing for both birth parents and prospective adopters.  A central concern is the lack of accessible and independent legal advice for parents considering relinquishment. The recommendation that legal aid should be available both before and after birth is an essential and logical step towards ensuring that parents can make informed decisions without financial barriers or this additional worry. Without this safeguard, there is a risk that decisions may be made without a full understanding of the consequences, leading to potential legal challenges or later distress for birth parents and children alike.  Although consensual adoptions form a small proportion of adoption cases, their significance cannot be overstated. The decision to relinquish a child is profound, and the adoption system, especially practitioners, simply must be equipped to provide the necessary legal, emotional, and practical support to all those involved. The Working Group’s recommendations, if implemented, would create a more robust system that respects the rights of birth parents while ensuring that every adopted child has the best possible start in life.

Chair of Bar and Bar Council visit Parklane Plowden Chambers

Parklane Plowden was delighted to welcome the Chair of the Bar, Barbara Mills KC and her Bar Council colleagues to Chambers as they visited the North Eastern Circuit today.   <figure class="wp-block-image size-full is-resized"><img src="https://www.parklaneplowden.co.uk/app/uploads/2025/02/Bar-Council-Visit-1-Crop.jpg" alt="" class="wp-image-10753" style="width:768px;height:auto"/></figure>  The Chair of the Bar meets with our Head of Chambers, James Murphy, Senior Practice Directors Stephen Render and Paul Clarke, and pupils Avaia Williams and Lydia Reed.  <figure class="wp-block-image size-full is-resized"><img src="https://www.parklaneplowden.co.uk/app/uploads/2025/02/Bar-Council-Womens-Forum-crop.jpg" alt="" class="wp-image-10754" style="width:769px;height:auto"/></figure>  The Chair of the Bar meets with the Women’s Forum, including the Head of our Inquests Team, Leila Benyounes.

Harrogate & District Law Society Property Law Talk | March 18th, 2025

Join three members of Parklane Plowden Chambers as they share their knowledge on Property Law.  Harrogate & District Law Society is holding a talk at the Cedar Court Hotel, where <a href="https://parklaneplowden.co.uk/our-barristers/adam-gould/" target="_blank" rel="noreferrer noopener">Adam Gould</a> will be speaking on the Art of Litigation, <a href="https://www.parklaneplowden.co.uk/our-barristers/sean-kelly/" target="_blank" rel="noreferrer noopener">Sean Kelly</a> on Partnership Property, and <a href="https://www.parklaneplowden.co.uk/our-barristers/dominic-crossley/" target="_blank" rel="noreferrer noopener">Dominic Crossley</a> on Proprietary Estoppel.  Come along and expand your knowledge in a friendly and welcoming environment. Don’t miss out on this opportunity to engage with like-minded individuals and gain valuable insights.  Date: Tuesday, March 18th, 2025  Time: 3 – 5pm  Location: Cedar Court Hotel, Park Parade, Harrogate, HG1 5AH  Cost: £10.00 and £20.00 for non-members  How to book your place: Please book using the Eventbrite link below:  <a href="https://www.eventbrite.co.uk/e/harrogate-district-law-society-property-talk-tickets-1236176740909?aff=oddtdtcreator" target="_blank" rel="noreferrer noopener">Harrogate & District Law Society Property Law Talk</a>

Attorney General’s Regional Panel

Parklane Plowden are pleased to announce that three of our members have been appointed to the Attorney General’s Regional Panel.  <a href="https://www.parklaneplowden.co.uk/our-barristers/bronia-hartley/" target="_blank" rel="noreferrer noopener">Bronia Hartley</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/richard-ryan/" target="_blank" rel="noreferrer noopener">Richard Ryan</a> have been appointed as Regional B Panel counsel from the 1st of March 2025 for a period of five years.  <a href="https://www.parklaneplowden.co.uk/our-barristers/may-martin/" target="_blank" rel="noreferrer noopener">May Martin</a> has been appointed as Regional C Panel counsel from the 1st of March 2025 for a period of five years.  The government relies on the Panels for advice and representation and seeks candidates of the highest quality. Competition for places is fierce.  We’d like to congratulate Bronia, Richard and May on their appointments.   If you would like to get in touch with our clerking team, you can do so via <a href="mailto:clerks@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">clerks@parklaneplowden.co.uk</a>.

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