Jon Comlay, Author at Parklane Plowden

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Compassion vs Culpability: Morris v Morris & Ors [2024] EWHC 2554 (Ch)

Background:  Myra Morris was a 73-year-old woman with a degenerative neurological disorder that had no cure. She flew to Switzerland to attend the Pegasos clinic to end her life with medical assistance. She travelled with her husband, son, daughter, and sister. Myra therefore ended her own life with the assistance of her husband, and consequently an assisted dying offence was made out and the Forfeiture Act applied. Myra’s husband Mr Philip Morris applied for relief under section 2(2) of the Forfeiture Act 1982 in order to benefit from his late wife Myra’s estate.  Law:  Section 2 of the Suicide Act 1961 states that an offence will be committed if a person:  <ol class="wp-block-list"> <li>Encourages or assists suicide or attempted suicide of another person, and </li>  <li>The person intended to encourage or assist suicide or an attempted suicide.</li> </ol>  However, section 2(4) makes it clear that no proceedings will be brought against a person for the offence unless the DPP has provided consent.  Section 1 Forfeiture Act 1982 states that ‘Anyone involved in the unlawful killing of another will be prevented from acquiring a benefit from that killing’.  Section 2 Forfeiture Act 1982 provides the exception. The court can modify the effect of the forfeiture rule if it is “satisfied that, having regard to the conduct of the offender and of the deceased and to such other circumstances as appear to the court to be material, the justice of the case requires the effect of the rule to be so modified in that case”.  Where an application for relief is granted under section 2 of the Act, families will be able to inherit the estate of the deceased.  Issues:  The issues in the case were:  <ol class="wp-block-list"> <li>To what extent will the witness statement of the deceased absolve family members of suggestions of undue influence/pressure/encouragement? </li>  <li>What is the risk of prosecution for those involved in assisted dying? </li>  <li>Will involvement in the death bar family members from benefitting from the inheritance of the deceased under the Forfeiture Act 1982? </li> </ol>  Decision:  Mr Justice Trower held:  <ol class="wp-block-list"> <li>Myra’s witness statement made shortly before she died was of “particular importance”. She outlined the “intolerable nature of her life”. This evidence led to the conclusion that merely being present at another’s death (Myra’s son, daughter and sister) will be insufficient to amount to a section 2(1) Suicide Act offence. This is because they were not directly involved in Myra’s plans to go to Switzerland. They tried to dissuade her, but she was determined to proceed. Mr Morris accompanying her to Switzerland, completing necessary paperwork and reporting his own involvement was sufficient to make out a section 2(1) offence. This was the case despite no encouragement and the fact that Myra would have gone to Switzerland anyway. </li>  <li>The courts will adopt the Policy for Prosecutors in Respect of Cases of Encouraging/Assisting Suicide guidance. This is attached here: <a href="https://www.cps.gov.uk/sites/default/files/documents/legal_guidance/assisted-suicide-policy.pdf">assisted-suicide-policy.pdf</a> The Policy Guidance lists 16 factors to consider in favour of prosecution. The court will weigh up the factors present, against factors listed against prosecution. Public interest remains a high consideration following Dunbar v Plant. Bringing charges against family members who were assisting the deceased to fulfil a wish is not likely to be in the public interest. </li>  <li>A judge will look at the guidance above as well as “the degree of moral culpability for what has happened.” The approach of moral culpability looks at the state of mind of the ‘offender’ – here, this was Myra’s husband, Mr Morris. Mr Justice Trower concluded that there was no moral culpability in the case because Mr Morris was “independently financially comfortable” and was not claiming relief for improper reasons. Therefore, the forfeiture rule was modified. Its application was excluded in full. </li> </ol>  Analysis:  This case emphasises that the element of culpability or blameworthiness is not a strong consideration for coroners when deciding unlawful killings. Compared to criminal proceedings, the civil courts will look at whether ‘offenders’ – i.e. those who assisted the deceased – are instead motivated by compassion. Indeed, compassion as a motivation is a key consideration in the Policy Guidance at paragraph 45.  The reasons for compassion will also be considered. In this case, these included the type of relationship, the length of relationship, and the determination of the deceased. The court had an understanding that Myra’s “determination to proceed” was “highly relevant” when considering prosecution.  For those practicing in coronial law, this case is useful when considering possible conclusions in inquests. Even if elements of assisted dying are made out, a conclusion of unlawful killing may not be necessary. Short term conclusions are not compulsory in inquests and, in situations where context about compassion is key, a narrative conclusion may be more appropriate. The legality of the death does not require comment.  If and until the Assisted Dying Bill is passed, coroners cannot conclude ‘assisted dying’ in inquests. Therefore, a compassionate approach may instead be adopted to reflect the case law.  The full judgment can be found here: <a href="https://www.bailii.org/ew/cases/EWHC/Ch/2024/2554.html">Morris v Morris & Ors [2024] EWHC 2554 (Ch) (09 October 2024)</a>.

May Martin Successfully Defends Disability Discrimination Claim in the Employment Tribunal

May Martin has successfully defended Gateshead Health NHS Foundation Trust against a claim for disability discrimination following a five-day hearing in the Newcastle Employment Tribunal.  The Claimant brought claims of failure to make reasonable adjustments and s.15 ‘discrimination because of something arising’. The issues in the case centred around the Trust’s proposed return-to-work plan for the Claimant.  The Claimant, who had been away from her substantive post as a midwife for a significant period, contended that the proposed plan was punitive and put her at a disadvantage because it required her to rotate around various midwifery departments.  The Trust contended that the return-to-work plan was supportive and was reasonable given, amongst other things, the period of absence from clinical duties and the need for the Trust to assure itself of the Claimant’s competence and safety.  The Tribunal dismissed the Claimant’s claims. It found that the Claimant was not placed at a disadvantage by the proposed return-to-work plan. It also found that the Trust had acted proportionately in pursuance of its legitimate aims of (1) ensuring operational efficiency; (2) ensuring the needs of the service could be met; and (3) ensuring the health, safety, and welfare of its staff and patients.  May was instructed by Gabriella Jobling of Capsticks solicitors.

13th March | Agricultural Conference, The Queens Hotel, Leeds

Please note that this event has now reached capacity - if you would like to be added to the reserve list, please contact our events team at <a href="mailto:events@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">events@parklaneplowden.co.uk</a>  Join our specialist barristers at the PLP Agriculture Conference to be held at the Queens Hotel on Thursday, 13th March. This event will be of interest to all professionals advising farmers and it is particularly topical given the challenges currently facing agriculture following the Budget.  Our speakers will include <a href="https://www.muckle-llp.com/our-people/david-towns/" target="_blank" rel="noreferrer noopener">David J. Towns</a> of Muckles who is a leading solicitor advising in the agricultural sector.  <h2 class="wp-block-heading">Programme</h2>  <ul class="wp-block-list"> <li>12:00 - 13:15: Registration and lunch </li>  <li>13:15 - 13:30: Welcome </li>  <li>13:30 - 14:00: Sarah Harrison APR and BPR </li>  <li>14:00 - 14:30: David J. Towns Challenges Facing Farming </li>  <li>14:30 - 15:00: Sean Kelly Agricultural Partnerships </li>  <li>15:00 - 15:30: Tea Break </li>  <li>15:30 - 16:00: Greg Pipe Agricultural Companies </li>  <li>16:00 - 16:30: Julia Nelson Farmers and Divorce </li>  <li>16:30 onward: Networking and Drinks</li> </ul>  The price per delegate is £75.00 + VAT and includes lunch, afternoon refreshments and a post-conference drinks reception.  If you would like to attend this event, please contact our events team at <a href="mailto:events@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">events@parklaneplowden.co.uk</a> to register.

Practice and Procedure – PLWG Best Practice: A Guide

Moving onto the third article in a series covering the Public Law Working Group’s recommendations for best practice for adoption, we consider Chapter 3 of the PLWG report. This section covers a wide area of issue regarding practices and procedures in adoption proceedings. The current practices are often slow, confusing, and, in any event, distressing for those involved. This chapter seeks to improve best practice within the current framework, and advocates for reconsideration of the law where longer term issues need addressing.  As with all articles in this series, this will follow the general chronology and sub-headings of the report to ensure consistency and to break the report down into a more bite sized and user-friendly guide as to what the report recommends.  To avoid confusion with the duplication of headings and sub-headings, Chapter 3 of the PLWG report sets out the current practice and procedure, and notes the problems with these, and then, later in the report, under headings named the same, makes specific recommendations – this format has been followed within this article.  Background  Placement and adoption applications are currently governed by the Adoption and Children Act 2002, the Family Procedure Rules, and the Adoption Agency Regulations. In the past 20 years, there have been no substantial or material changes to the law or procedure for adoption.  Most of the recommendations in the report related to detail of the process and procedures, rather than the substances. An area where concern is continually raised is applications for leave to oppose adoption orders, providing parents the ability to oppose an adoption order when they are already placed for adoption. The overwhelming majority of these cases fail, and some have suggested removing this ability to oppose; others have pointed out that legal aid changes mean parents may now be assisted to realistically oppose applications.  Another common area of concern raised to the PLWG is that regarding Rule 19 applications (pursuant to FPR r14.21), notably with respect to wider family in relinquished baby cases.  Finally, specific attention has been given to the issues raised in Somerset County Council v (1) NHS Somerset Clinical Commissioning Group and (2) The Primary Cohort Children [2021] EWHC 3004. Recommendations are also made from the Cumbria Child Safeguarding Practice Review and Child Safeguarding Practice Review Panel.  Applications to Oppose Adoption Orders  Where a placement order has been made, the next steps is to place the child for adoption. This can be a very long process, for some there will be no placement found (often resulting in a revocation application).  Once the child is placed and sufficient time has passed, an adoption application will follow. Notwithstanding there being a placement order, the parents will be served with the adoption application, including offering the chance to oppose the application.  Many parents, quite understandably and obviously, tick ‘yes’.  Per s.47(7) ACA 2002, the court can only allow an application to oppose if there has been a change in circumstances since the placement order. This requires a two stage test. First, there must be a change in circumstances, but, and crucially, secondly, the court must be satisfied in any event that it is in the child’s best interests to grant to application, considering the child’s entire life. If, and it is a big if, the parents are granted leave to oppose, the application becomes fully contested.  Almost all parents are unrepresented at the time  off service of the adoption application. Parents will unlikely be aware of the tests involved, nor will they necessarily understand the process to oppose, many parents failing to file a specific application (thought Judges often do not insist on compliance due to the circumstances).  Given the circumstances, many parents do oppose the adoption order without considering their case, resultingly, the majority fail. As the PLWG report note:  “Many judges have contacted the group to express concern that this process is inhumane and damaging. They consider it creates false hope and further pain for birth parents at the same time as delay for the children.”  Given these applications are permitted by statute, any significant change would require Parliament to amend the legislation. The Working Group recommend that it may be beneficial to wait to see whether there is any impact from the changes to legal aid funding for parents opposing application will have any significant change.  Applications to Oppose – Notification of Fathers and Wider Family  Ss.19-20 ACA 2002 provides that, a mother who relinquishes a child may consent to their adoption. There is a procedural issue whereby putative fathers and wider family members are not routinely notified of the application.  s.19 provides that a child may be placed for adoption where each parent has consented to the adoption. A parent, pursuant to s.52(6), means a parent with parental responsibility. The overriding principles in s.1 are fundamental to adoption applications, notably, the Court must have regard to the welfare checklist, including the child’s relationship with relatives. Such relatives being defined in s.144 as grandparents, siblings, aunts and uncles.  FPR r14.21 provides*:  “Where no proceedings have started an adoption agency or local authority may ask the Court for directions on the need to give a father without parental responsibility notice of the intention to place a child for adoption.<a></a><a></a>”  *It should be noted that the online versions of the FPR note applications must be made to the High Court under the inherent jurisdiction, this has been removed by virtue of the Family Procedure (Amendment) Rules 2020 No.135, but this change has not been reflected in the online version of the Rules.  The procedural lacuna arises from the reference only to fathers without parental responsibility, there being no reference to any wider family members. As such, an adoption agency must have regard to the child’s welfare with the wider family, but there is no clear pathway to seek directions on this issue.  The Court of Appeal grappled with this issue in A, B and C (Adoption: Notification of Fathers and Relatives) [2020] EWCA Civ 4, noting that the welfare of the child is not the key test, rather, it is an exercise of balancing the rights of the family members and the child, whilst welfare plays an important role, the Article 6 and 8 rights of those who can establish potential family life will be a vital consideration.  Placement Applications  A placement application will often be made alongside care proceedings. S.22 ACA 2002 requires a Local Authority to issue such proceedings if:  <ol class="wp-block-list"> <li>The child is placed for adoption or is accommodated;</li>  <li>No adoption agency is authorised to place the child for adoption;</li>  <li>The child has no parent or guardian, or the child is suffering, or at risk of suffering, significant harm (s.31(2) CA 1989); and</li>  <li>The Local Authority is satisfied the child should be placed for adoption.</li> </ol>  There are exceptions to the above, notably where the child is living with somebody who has already given notice to adopt the child (s.22(5) ACA 2002).  The placement application is made via Form A50, along with: the child’s birth certificate, a statement of facts giving detail about the case, any relevant Order, any parental consent document.  The Local Authority must also prepare an Annex B and this is governed by FPR PD14C. It provides that an Annex B should contain three distinct sections, providing sufficient information as to the following.  Section A: Report and Matters for Proceedings – This should include the details of the author of the Annex B, including their qualifications and experience. Information should also be given as to whether there are others who should be made respondents to the proceedings.  Section B: Child and Birth Family – This section is designed to provide information to the Court, adopters, and importantly the child, as to their background, likes, dislikes, and siblings. There is also information provided about the parents of the child (including a photograph of them). Further information is provide as to the child’s wider relationships, their wishes and feelings, and contact arrangements leading up to and following adoption.  Section C: Recommendations – This section is for the Local Authority to set out their case for what should happen to the child, evidently noting the merits of the placement order and future contact.  Whilst placement applications are often made within care proceedings, and they are often dealt with alongside the care case, they remain distinct proceedings. Placement Orders, if made, will very likely be made at the final hearing in the care case, such that a Final Care Order and Placement Order will be made on the same day. Resultingly, most early Case Management Orders now provide directions to a Local Authority in respect of issuing placement applications.  It is extremely time intensive for Local Authorities to issue placement applications, with a separate A50 and supporting documentation being required for each child, as opposed to applications for care orders which can be made ‘in bulk’. Further, the Local Authority plan for adoption must be ratified by the Agency Decision Maker (“ADM”).   Whilst it raises significant emotions for parents, the benefit to the placement proceedings running alongside the care proceedings is that the parents will benefit from legal aid and be represented at these hearings. The Working Group recommends that there should be a leaflet which explains the placement process and how it relates to adoption.  A Local Authority or the child has an inherent right to apply to revoke the placement application; parents may also make sure an application, but only with the permissions of the court. As previously noted, this will only be allowed where there has been a change in circumstances.  Should a substantive revocation application be pending, the Local Authority may not place the child for adoption without court approval. Revocation applications will often delay permanency for the child, particularly if they are made once family findings has been successful. That being said, the PLWG notes that this should not be changed, explaining:  “There are cases where it is entirely proper for the parents to be able to challenge the placement of their child. Unlike applications to oppose an adoption order these are usually not prompted by the court process itself and the issue of delay is a matter for the judge determining the application for leave.”  Adoption Applications  An adoption order will have the effect of severing legal ties between the child and their biological family, as such, there are various steps which must be taken before an application can be dealt with. These steps vary depending on whether the application is via an adoption agency or via a private application. All cases have a prerequisite placement time, whereby the child must have lived with the prospective adopter for X amount of time before they can apply, this varies as follows:  <ul class="wp-block-list"> <li>Agency Adoption: 10 weeks</li>  <li>Parent or partner of parent: 6 months</li>  <li>Foster Parent: 1 year</li>  <li>Any other person: 3 years</li> </ul>  Agency adoptions are such that the prospective adopters have been approved and matched by a panel prior to the child being placed with the proposed adopters.  Regulation 24 of the Adoption Agencies Regulations 2005, requires the Local Authority to provide appropriate preparation to prospective adopters. As noted in earlier chapters of the report, concern has been raised about the consistency and level of training provided to adopters. Concern was raised to the Working Group with respect to suitability and matching reports varying considerably across agencies.  In non-agency adoptions, whereby a ‘private’ individual applies to adopt a child, the applicant must give the Local Authority notice of at least 3 months that they intend to adopt the child. In Re A [2020] EWHC 3296, the Court held that non-compliance with the notice period did not result in an ineffective application.  As with placement applications, the Local Authority must prepare a report, the Annex A. This report has six sections as follows:  Section A: The Report and Matters for Proceedings – This should include the details of the author of the Annex A, including their qualifications and experience. Information should also be given as to whether there are others who should be made respondents to the proceedings.  Section B: Child and Birth Family – This section includes information about the child and each parent for the child. It also includes details of the important relationships to the child, contact arrangements, and the views of the child. There is also a summary of the actions of the adoption agency.  Section C: Prospective Adopter – This section provides detail about the prospective adopter, most notably their suitability to adopt the child. It should explore whether the prospective adopter will follow the wishes of the child, parents, and guardian in matters such as religious and cultural upbringing. Further, the section explores the prospective adopter’s reasons for the child.  Section D: The Placement – This section provides information regarding the placement and the timescales for support post adoption.  Section E – Recommendations  Section F: Further Information for Convention Adoption – This section only applies where the adoption relates to a Convention Adoption Order, s.84 Orders or s.83 adoptions. This section must comply with FPR PD14C.  It is important for a prospective adopter, in a non-agency case, to issue their application in a timely manner following notification to the LA. Failure to do so may result in the Annex A being out of date by the time of proceedings, risking delay in proceedings for an updated report to be completed.  Issuing the Application  The applicant must issue three copies of Form A58 along with the relevant forms. Directions will be made and a first hearing should be listed within 4 weeks. It is common for first hearings to be on the papers instead of an attended directions hearing.  There is confusion with the adoption forms, however, the Working Group is hopeful that the Reform Programme will aid in this aspect given that the applicant will be supported by prompts when completing the application online. The Working Group recommends condensing the existing consent forms into a single one.  Where possible, the Annex A should be lodged with the application to prevent delay; the PLWG notes that doing so may reduce the application time by half compared to cases where the Annex A is issued only following the first case management order.  Case Management  As noted, most initial hearings will be heard on the papers, with Judges providing directions without a hearing pursuant to FPR r.14.6(4). The Working Group recommends this practice should continue, with most hearings being suitable to be dealt with on the papers, reducing pressure on listing the hearing and avoiding delay.  FPR r14.8 notes the matters that the Court must consider when giving directions, this includes setting the timetable, requirements for any reports, party status for the child, directing tracing, and setting out directions for the final hearing. The initial case management orders vary across the country, and a standard order would be helpful  Final Hearings & Celebration Hearings  Where time to appeal any opposition to the adoption application has expired, the Working Group consider that there should be a block listing of final hearings to allow these to be made in bulk. A template order should be created for this.  A celebration visit is a hearing sometimes offered where the adoptive family attend the Court and formally ‘celebrate’ the granting of the adoption order. There are significant concern and risks with such visits. The adoptive family would be attending a family court with other parents engaged in care and adoption proceedings, possibly leading to upset for both families; it is possible even that the adoptive family could come into contact with the birth family.  The Working group noted also that:  “The point was also made that the word ‘celebration’ can be inflammatory from the viewpoint of the birth parents.”  Whilst these are legitimate concerns, the celebration hearing is an important steps in the adoption process. There was concern raised that some families had to travel considerable distances to courts across the country.  Other Areas of Concern  The PLWG noted several areas of concern that, whilst beyond the scope of the report, were of such importance that they felt it vital to flag them. These matters are such that they likely require changes to legislations to address:  <ul class="wp-block-list"> <li>Regulation 23 and 25 AAR 2005 deal with stage one and two checks. Stage one checks are enhanced police checks to assess suitability to adopt, once clear, stage two checks are completed. There is a significant delay in obtaining stage one checks, leaving Local Authority’s in a position where they must either delay the report or complete one without suitable checks.</li>  <li>A placement becomes an adoptive placement where the match is approved by the ADM; however, time that the child has lived with the applicant under an Early Permanence Placement (“EPP”) does count towards the time spent with the applicant. The Working Group note this should be reflected in update statutory guidance.</li>  <li>The current guidance implies EPP should be used before the making of a placement order. It is not clear whether EPP can be approved after a placement order or whether it can principally be agreed by the ADM prior to birth. Guidance should be updated to clarify these areas to assist Local Authority’s in adoption planning.</li>  <li>S.44(3) ACA 2002 provides that the prospective adopter must give at least 3 moths notice to the LA of their intent to adopt, the time limit for notification is capped at two-years. The Working Group note that two years is excessive.</li>  <li>S.42(3) ACA 2002 provides that a child must live with a step-parent for at least 6-months before they can apply to adopt the child. The Working Group note that this period is not sufficient and should be extended.</li> </ul>  Schedule of Recommendations  The Public Law Working Group makes numerous recommendations regarding the practice and procedure in adoption proceedings; these broadly follow the areas discussed above and can be broken down as set out below.  Leave to oppose adoption orders – Recommendations  The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023 changed the legal aid position in relation to applications to oppose an adoption order. The Working Group recommends that there be a review in 12 months’ time to assess whether the greater availability in legal aid makes a difference to the number of applications made and/or refused.  During this 12 months, records of all applications should be kept and the final review should also allow representations from organisations as to the perspective of birth parents.  A nationally adopted leaflet about the adoption process should be created and provided to all parents on issuing the application. This should include information about the right to apply for leave to oppose and, importantly, the legal test to be applied.  Should a parent give notice they seek to oppose the order, Form FP2 should be sent to the parents, allowing them to formally seek to oppose in the proper form. The Working Group recommends it still be open to the judge to permit applications that still do not use FP2, but encouraging the proper form will aid in applications.  A template statement should be created allowing parents present evidence to support an application for leave to oppose. This template should follow the legal test, allowing parents to set out the changes in their circumstance and why their proposals are in the best interests of the child.  Applications to Oppose – Notification of Fathers and Wider Family – Recommendations  The Working Group note that, since the references to “inherent jurisdiction” and “High Court” have been removed from FPR r14.21, it is not considered necessary to make such applications for a declaration as to notification to the High Court or section 9 Judge. The Working Group does, however, recommend that these applications should be made to the Designated Family Judge who can ensure allocation to a suitably experienced Judge.  Notice of such an application should not be give to fathers without PR or family members until any issues regarding such notice are determined. Applications should be listed for an Urgent Case Management Hearing and matters such as further evidence or appointment of a guardian should be considered.  In relinquished baby cases where the mother does not wish for the father without PR or family to be notified, the Working Group endorses the approach taken by Jackson LJ in A, B and C (Adoption: Notification of Fathers and Relatives) [2020] EWCA Civ 41.  Rule 14.21 should be amended such that it includes reference to wider family members given the adoption agency, and court, must consider the relationship the child has with such relatives.  The English Adoption Statutory Guidance 2013 and draft 2014 version should be updated to reflect the current law and practice. It is noted the guidance was issued before the creation of regional adoption agencies and several significant cases.  Issuing the Placement Application – Recommendations  The PLWG advise that there be changes to advice and guidance in relation to placement applications. The Guidance Notes for completing the Form A50 should be revised to clarify confusion and a new leaflet should be created explaining the process of placement applications (especially where they are issued on a stand alone basis).  There should be a template statement of facts to provide uniformity. The statement should consistently include the nature of the current placement, decision of the ADM, and when parents were informed.  Instead of a separate form being completed to keep a child’s address confidential (Form A65), consideration should be given to amending Form A50 to include this as a section.  The Working Group notes the following as documents which should be lodged with an application for a placement order:  <ol style="list-style-type:lower-alpha" class="wp-block-list"> <li>Form A50</li>  <li>Form A65 where the Local Authority seeks to keep the child’s address confidential</li>  <li>Certified copy of the child’s birth certificate (originals are currently required)</li>  <li>Statement of facts complying with FPR 14.9 and the above recommendations</li>  <li>A copy of any Final Care Order</li>  <li>A copy of any Parental Responsibility Order</li>  <li>A copy of the ADM decision</li>  <li>The Annex B</li> </ol>  Case Management  It is recommended that, where applications are received on time, the Court should always acknowledge receipt. Short form standard orders should be encouraged and Case Management Orders should include timing for ADM decisions.  Where ADM decisions are delayed, the ADM should notify both the court and the parents as to the reasons, action being taken to address the delay and the next ADM date.  As above, a placement application leaflet should be created and served upon the parents alongside the application and supporting material. This leaflet should includes information about revocation of placement orders and an explanation as to the legal test.  Applications to Revoke a Placement Order  It was noted during the consultation that the wording of s.24(1) was, in some cases, leading to multiple applications for leave to revoke a placement order from multiple family members. The Working Group recommends that:  “…research be undertaken to establish whether this is a regional or more widespread issue, and to inform whether consideration needs to be given to any reform.”  Applications to revoke a placement Order should be made on the proper form, Form FP2, and this should be sent to applicants following issue. Failure to use this form would not bar an application.  The Local Authority should produce a template letter for parents and the court where the placement circumstances have changed, such as from a foster placement to a prospective adoptive placement. The Local Authority needs to be proactive in advising of such changes.  Annex A and B Reports  The preparation of the Annex B, Annex A, and Child Permanence Report are time consuming and involve repetition across reports. Where simple errors are made, these are likely to be replicated and liable to cause delay to proceedings. The Working Group suggests that reducing pressure on social workers by limiting information repetition could alleviate such errors.  The PLWG recommends that a unified report is created. There is already a combined report for the Annex B and CPR developed by CoramBAAF, but adding in the information from the Annex A would save further time. Streamlining reports must still ensure compliance with AAR and FPR PD14C.  Adoption (Pre-Issue)  The Working Group makes several recommendations in respect to pre-issue matters, aiming to ensure a smoother process and easier process for all parties involved, these recommendations are as follows:  <ul class="wp-block-list"> <li>The Annex A should be prepared before the application is issued so as to streamline the process. It is recognised this requires collaboration between the applicant and the Local Authority.</li>  <li>Applicants, when giving the Local Authority notice, should advised when they intend to apply to allow the Annex A to be prepared pre-issue.</li>  <li>Local Authorities should be proactive in communicating with birth parents post-placement and information should be provided to the court advising what steps have been taken to maintain contact, last contact, and last known address.</li>  <li>A national protocol governing transfer of information between Local Authorities and regional adoption agencies should be established.</li>  <li>S.19 and s.20 ACA 2002 cases (adoptions by consent) should be revised under a single form designed to address issues of statements and notification of parents.</li>  <li>To avoid delay in non-agency adoptions, applications should proceed with applications at an early stage after giving notice.</li>  <li>Where a non-agency application has been delayed, and the Annex A is thus outdated, the Social Worker shall provide a statement confirming any change of circumstances or lack of change.</li>  <li>There should be a national training and information protocol, specifically addressing the areas of documents, notably those placed before the ADM and Annex A, B and CPR reports. There should also be training on working with applicants.</li>  <li>A national protocol should be established with the police to ensure more efficient stage 1 checks.</li>  <li>There should be standard templates for suitability and matching reports.</li> </ul>  Issuing the Adoption Application  On issuing an application, it is suggested that the following documents are lodged:  <ul class="wp-block-list"> <li>A58 application</li>  <li>Birth certificate copy</li>  <li>Marriage/civil partnership certificate</li>  <li>Any Deed Poll</li>  <li>A copy of the Care and Placement Order</li>  <li>A copy of the placement application statement of facts</li>  <li>Any consents</li>  <li>Annex A report</li>  <li>Any request for DWP disclosure</li> </ul>  There should be templates for the initial case management order and final adoption orders to provide for continuity and efficient timetabling through to final hearing. In addition, clear guidance notes should be served on parents alongside the application.  Adoption Visits  There should continue to be the opportunity for adoptive parents to attend court for an adoption visit (also known as celebration visits). These visits are termed differently across regions and there should be continuity across the country, such visits should be referred to as “adoption visits”.  Whilst not all adoptive parents will want such a visit, they must be advised this is an option and the adoptive parents should confirm whether they want to attend such a visit. Courts should take necessary steps to ensure those attending these visits do not come into contact with parties engaged in care proceedings – each court should have a plan on how this will be achieved.  There should be a national protocol to allow a case to be transferred to a local court to allow adoptive parents to attend.  Other Areas of Concern  Parliament should consider whether the AAR 2005 should be amended to make clear that a Local Authority may proceed with stage 2 checks notwithstanding stage 1 checks being outstanding. Stage 2 checks should then be able to be terminated if stage 1 checks come back unsuitable without having to present to ADM or having appeal recourse (as is the case where only stage 1 checks are done and show unsuitability).  Parliament should consider whether to amend s.44(3) ACA 2002 such as to reduce the ceiling for the notice period from two-years to one-year. Any such notice should also be in writing and clearly dated to avoid issues with date of notice.  Parliament should consider whether to extend the ‘live with’ requirement under s.42(3) ACA 2002 to stepparents.  Postscript  In Somerset County Council v NHS Somerset CCG [2021] EWHC 3004 (Fam), several cases were raised where adoption medical reports had not been completed, in breach of the regulations. In order to avoid a repeat of these situations, the PLWG recommends that there should be some written memo (an email exchange sufficing) to confirm who the agency medical advisor is and this memo should be explicit in exhibiting that the medical advisor complies with the Schedule 1 requirements in the AAR 2005.  Several issues came out of the Cumbria Child Safeguarding Practice Review and the Child Safeguarding Practice Review Panel. From this, the Working Group recommends that:  <ol class="wp-block-list"> <li>The agency medical advisor’s summary report is required for Annex A’s.</li>  <li>Adopter’s health is subject to ongoing review in agency applications, as such the medical summary may be older than 3pmonths. Where there is no material change, this can be attached to the Annex A.</li>  <li>The prospective adopters’ social worker shall write to the applicants GP and referees before matching panel and application. There should be a standard template letter including a safeguarding statement, relevance of information, and seeking updating in the event of anything new coming to light.</li>  <li>There should be a consistent template for the medical advisors summary.</li>  <li>The child’s social worker and prospective adopters’ social worker should confirm they have reviewed the medical summary and addressed any concerns.</li>  <li>There should be a checklist of document required for ADM. This checklist, and the documents, should be placed before ADM when making the best interests decisions.</li>  <li>Local Authorities should ensure quality control mechanisms and team manager and agency adviser reviews of the checklist documents – these mechanisms should reflect the duty in para 1.32 of the 2013 Statutory Guidance on Adoption.</li>  <li>Local Authorities should ensure parents are notified of the proposed ADM decision date and a template letter should be created explaining the decision. Similarly, parents should be notified of the outcome.</li> </ol>  Conclusion  Chapter 3 of the Public Law Working Group’s report on best practice in adoption focuses on the practices and procedures surrounding adoption proceedings, highlighting the need for streamlined processes that better support children, birth families, and prospective adopters. The recommendations in this chapter emphasise the importance of reducing unnecessary delays, addressing procedural inconsistencies, and providing clarity to all parties involved.  Central to these reforms is the recognition that current practices often create confusion, distress, and inefficiencies, which ultimately fail to serve the best interests of the child. By advocating for national templates, updated statutory guidance, and clearer procedural frameworks, the recommendations aim to ensure consistency and fairness in adoption proceedings.  The PLWG also underscores the importance of keeping children’s welfare at the forefront, making clear that procedural improvements must align with their emotional, cultural, and identity needs. This includes revising outdated systems, ensuring proper training for professionals, and addressing gaps in areas such as the notification of wider family members and the preparation of Annex A and B reports.  Whilst several of the recommendations will require legislative change, adoption systems rooted in these recommendations are more likely to deliver timely, transparent, and child-centred outcomes. By addressing both short-term procedural issues and longer-term legislative reforms, these proposals aim to create a fairer, more efficient adoption framework. Ultimately, this will help ensure that children in adoption proceedings find stability and security in a process that respects their unique circumstances and needs.

CXC v Clarke & Anor [2024] EWHC 3138 (KB): How to Factor an Intermediary into a Civil Claim

In the recent case of CXC v Clarke & Anor [2024] EWHC 3138 (KB), the High Court have given guidance on how a party should approach instructing an intermediary for a vulnerable party in a civil claim.  The facts  The Claimant, having been involved in a road traffic accident on 16/09/2007, settled her claim on 25/05/2009 pre-issue for a sum of £25,000. The Claimant is seeking an order to set that settlement aside on the basis that she lacked capacity to conduct litigation from 2007. The Claimant suffered a further road traffic accident in 2016, the injuries from which may also affect her capacity in the current litigation. The issue of capacity between 2007-2009 is firmly in dispute between the parties.  The applications  On 24/07/2024, the Claimant made an application for permission to obtain a report from a registered intermediary to advise on how the Claimant would best be able to engage in the proceedings, as well as seeking an order that HMCTS pay the costs of obtaining the report. The Court also faced an application made on 19/09/2024 to extend time for the Claimant to serve her witness evidence.   What is an intermediary?  HHJ Bird drew assistance from how intermediaries are provided for in the Family and Criminal jurisdictions (Family Proceedings <a href="https://www.justice.gov.uk/courts/procedure-rules/family/parts/part-3a-vulnerable-persons-participation-in-proceedings-and-giving-evidence" target="_blank" rel="noreferrer noopener">Rules 3A</a> and <a href="https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/practice-direction-3aa-vulnerable-persons-participation-in-proceedings-and-giving-evidence" target="_blank" rel="noreferrer noopener">PD 3AA</a>; Criminal Procedure Rules <a href="https://www.legislation.gov.uk/uksi/2020/759/part/18" target="_blank" rel="noreferrer noopener">Part 18</a> and <a href="https://assets.publishing.service.gov.uk/media/66a75bd1fc8e12ac3edb05ce/criminal-practice-directions-2023-amended220724.pdf" target="_blank" rel="noreferrer noopener">PD 6</a>). The Civil Procedure Rules take a less proscriptive approach, but the overriding objective requires that full participation in proceedings and ensuring witnesses can give their best evidence is an integral part of dealing with cases justly. <a href="https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part01/practice-direction-1a-participation-of-vulnerable-parties-or-witnesses" target="_blank" rel="noreferrer noopener">CPR PD 1A</a> was introduced in April 2021 to address the issue of vulnerable witnesses directly.  On those bases, HHJ Bird identified that a Court could direct that an intermediary provides support to allow a party to participate fully in the proceedings, even if the party does not give evidence.  In the present case, it was anticipated that an intermediary would assist by undertaking an assessment of the medical evidence and preparing a report to identify the Claimant’s needs and any protective measures required, making recommendations to ensure effective participation in the proceedings, including on any specific communication needs and to support the Claimant at the preliminary hearing assisting in rephrasing questions and making sure the Claimant could follow the proceedings.  Key principles for the use of an intermediary in civil cases  <ul class="wp-block-list"> <li>Steps to be taken by the Court:<ul><li>Identify if there is a relevant vulnerability. Until this is done, the Court cannot decide what protective measures are required. Some cases will be straightforward (examples are set out in PD 1A, paragraph 4, for example, a young child). Less obvious, health-related vulnerabilities need to be established by appropriate evidence (either from Part 35 experts or treating clinicians). </li></ul><ul><li>Determine if the relevant vulnerability is likely to restrict full participation in the proceedings.</li></ul> <ul class="wp-block-list"> <li>The Court must take all proportionate measures to deal with the relevant vulnerability. This will first require an assessment of whether a protective measure short of direction is enough (‘a provision’). If not, the Court must consider whether it is necessary to make directions to address the relevant vulnerability.</li> </ul> </li>  <li>Before making directions to assist vulnerable persons, the Court must be satisfied that they are necessary. It is not enough that they would be helpful.</li>  <li>CPR PD1A gives a broad discretion to the Court on the type of special measures that can be ordered when a person with a relevant vulnerability is to give evidence. It provides a non-exhaustive list at paragraph 10 of the following measures: <ul class="wp-block-list"> <li>Preventing a party or witness from seeing another party or witness by the use of screens;</li>  <li>Allowing to give evidence remotely by video conference;</li>  <li>Hearing evidence in private;</li>  <li>Dispensing with the wearing of wigs and gowns;</li>  <li>Admitting pre-recorded video evidence;</li>  <li>Questioning a party or witness through an intermediary; and</li>  <li>Using a device or other aid to help a party or witness communicate.</li> </ul> </li>  <li>If an intermediary is to be involved in a civil trial, either to assist a witness or support a party, arrangements should generally be made at a hearing in the presence of the intermediary. Such a hearing would be akin to a “ground rules hearing” in the criminal jurisdiction.</li>  <li>An intermediary report is not referenced by CPR PD1A but is likely to be a key factor for the Court to consider when deciding what (if any) protective measures are to be made. <a href="https://assets.publishing.service.gov.uk/media/64e4858e4002ee000d560cf5/registered-intermediary-procedural-guidance-manual.pdf">Guidance</a> for the content of such a report has been published by the Ministry of Justice. It is not an expert report and CPR 35 does not apply.</li>  <li>The CPR does not require permission to instruct an intermediary to draft a report. However, an intermediary report is required before the Court can consider if directions for the use of an intermediary are necessary. Permission is required to use an intermediary but not to obtain an intermediary’s report.</li>  <li>The appointment of an intermediary (either to assist a witness give evidence or to assist participation in proceedings) is a matter for the Court. Agreement of the parties does not justify appointment.</li>  <li>An intermediary should only be appointed if necessary. It will only be necessary if lesser steps (protective measures in the form of directions or provisions) would not be sufficient to address the vulnerability.</li>  <li>If an intermediary is to be appointed, their role and periods of engagement should be specified and no more than necessary. An order for use of an intermediary for a whole trial would be exceptionally rare.</li>  <li>The Court will proceed on the basis that the advocates will be familiar with the guidance on handling vulnerable witnesses in the “Advocate’s Gateway” and will prepare and adapt their style accordingly.</li> </ul>  Judgment in CXC  In the present case, as there was no requirement for permission to instruct an intermediary to draft a report, the application for permission to instruct an intermediary was dismissed. The application for extending time for the Claimant’s witness evidence was adjourned to be dealt with once the issue of relevant vulnerability had been resolved.  As the application for permission was dismissed, the Court did not need to decide the issue of recovering costs from HMCTS. However, HHJ Bird did note that the issue of payment should ordinarily be left to the usual application process via HMCTS policies.  The Claimant’s asserted vulnerability arose from the brain injury acquired in the 2007 accident. The parties were yet to exchange medical evidence. At the time of the present hearing, the Defendant did not accept the Claimant had a relevant vulnerability. It was too early for the Court to determine the question. Accordingly, the Court identified that the following steps should be taken in the present case:  <ol class="wp-block-list"> <li>If the Claimant has a relevant vulnerability, an intermediary should be instructed to produce a report;</li>  <li>Depending on the content of the report, an application for protective measures should be made in respect of that vulnerability.  This application should rely on the intermediary report and include a draft order;</li>  <li>If the intermediary recommends that they attend trial to assist, directions and other measures should be considered at a hearing with the intermediary in attendance.</li> </ol>  Comment  The case provides key guidance on how parties should approach the appointment of an intermediary in the civil jurisdiction. It is important that both Claimant and Defendant solicitors are aware of the key stages at which vulnerability should be assessed and special measures applied for witnesses and/or parties in the litigation. In doing so, it will ensure that the rights of vulnerable parties are protected and enjoyed within the civil litigation process.

Parklane Plowden Barristers and Staff Raise Money Together to Support Local Charity

Our Senior Practice Director, <a href="https://www.parklaneplowden.co.uk/clerks/stephen-render/" target="_blank" rel="noreferrer noopener">Stephen Render</a>, came across a LinkedIn post highlighting the vital work of <a href="https://zarach.org/" target="_blank" rel="noreferrer noopener">Zarach</a>, a Leeds-based charity dedicated to combating bed poverty among children in England.  Zarach was established by Bex Wilson, a primary school teacher in Burmantofts, Leeds, who was deeply moved after discovering that some of her students were without beds. This eye-opening experience inspired her to take action.  Stephen was equally taken aback by this issue and recognised that supporting Zarach would not only align with the spirit of charity during this season but also resonate with our Chambers’ vision of ‘Making a positive difference in all we do.’  In response to this call to action, our barristers and staff came together to raise an impressive £1,285, which will provide bed packages for eight children in need.

Timely Intervention in the Court of Protection: Lessons from Cardiff and Vale University Health Board v NN [2024] EWCOP 61

Cardiff and Vale University Health Board v NN [2024] EWCOP 61  Avaia Williams, a first six pupil under the supervision of Sara Anning and Rebecca Musgrove, explores the judgment of the Court of Protection in Cardiff and Vale University Health Board v NN [2024] EWCOP 61.  Full Judgment can be found <a href="https://www.bailii.org/ew/cases/EWCOP/2024/61.html" target="_blank" rel="noreferrer noopener">here</a>.  The recent Court of Protection decision in Cardiff and Vale University Health Board v NN has reiterated the commentary on the timing of applications in cases involving complex medical treatment decisions. The case involved NN, a vulnerable adult with a history of substance abuse and schizophrenia, detained under the Mental Health Act 1983, who sought a termination of her pregnancy. This judgment emphasising the importance of timely applications when the need for court intervention becomes foreseeable and highlights the issues that can occur when timeliness is put to one side.  Background and Facts  In August 2024, NN was approximately 18 weeks pregnant and had consistently, though at times hesitantly, expressed her desire for a termination – such hesitancy may be entirely apparent in most individuals who are thinking about termination, it is a decision made not without such grappling. The Cardiff and Vale University Health Board sought a declaration that it would be lawful to proceed with the termination if NN chose to go ahead, acknowledging that restraint or sedation might be necessary should NN change her mind mid-procedure. This application was complicated by the health board's concerns that, at an irreversible stage, NN might refuse further treatment or intervention, potentially risking her health if not managed appropriately (an obviously envisaged situation may include catastrophic bleeding).  NN’s case reached the Court of Protection under urgent circumstances, as by the time of the hearing on 12 September 2024, she was already in her 21st week of pregnancy, with only days remaining before the termination would no longer be possible under the Abortion Act 1967’s time limits. The urgency was only compounded by delays in the application process, which the Court was specifically critical of.  Judgment and Findings  Victoria Butler-Cole KC, sitting as a Deputy High Court Judge, confirmed that NN lacked capacity to make decisions regarding the termination of her pregnancy. The court thus declared the health board’s proposed treatment plan lawful and authorised, but only insofar as it aligned with NN’s expressed wishes. The court underscored that the health board was “not inviting the court to make a best interests decision” regarding the termination itself but sought only to ensure that the necessary procedural support and monitoring could be provided should NN proceed with her choice. The judge stated clearly:  “The treatment plan made clear that it was NN's choice whether to have a termination or not, and that no best interests decision would be made for her, notwithstanding her lack of capacity.”  However, the court was critical of the health board's delay in bringing proceedings. The delay resulted in NN undergoing a late-stage termination which led to further distress, not only for her but also for her family and medical staff involved. As the judgment noted:  “Four weeks was simply too long. In my judgment, an application should have been prioritised and made at the very latest by 26 July 2024. If it had been, a decision would likely have been made by the court by mid-August, rather than mid-September. While that may not have made any difference to the type of termination NN had, it would have saved her a month of waiting and wondering why her expressed wishes were not being acted on as her pregnancy progressed.”  Ultimately, NN’s frustration with the delay was expressed through her repeated requests to the staff to know “why a date for the procedure had not been set.” The court acknowledged the psychological and physical burden this placed on NN, as well as the prolonged anxiety for her family. The judge, therefore, issued an adverse costs order, requiring the health board to pay “100% of the costs of the Official Solicitor in this application.”  The court also used this case as a reminder for all practitioners of the importance of timely intervention, quoting the Official Solicitor’s guidance that applications related to complex medical decisions “should be regarded as a medical treatment issue of the utmost urgency.” The judgment emphasises:  “The negative impact goes wider than just NN. Her mother told the Official Solicitor’s caseworker after the procedure that this has been the worst experience of her life and that it was ‘absolutely barbaric.’ She was clearly traumatised by watching her daughter having to continue her pregnancy well into the second trimester despite having requested a termination, and then supporting her through a late medical termination which resulted in the baby being born alive.”  In commenting on the broader implications, the judge added that “serious thought should be given to how likely it is that those measures will be needed,” referring to the anticipation of deprivation of liberty during medical procedures.  This judgment reiterates that timely applications can help avoid escalated complications and distress, especially for those already faced with significant struggles (NN was during all of this detained in a psychiatric hospital). As the judge noted, “perfect may well be the enemy of the good” in urgent treatment cases, urging practitioners to prioritise the patient’s immediate welfare over perfectionism in evidence-gathering.  Commentary and Implications  The case emphasises a recurrent theme in Court of Protection judgments: the need for prompt application when it appears that a case may require court involvement. The judge reaffirmed that court intervention is not mandatory where there is a professional consensus in line with MCA provisions and where the agreed treatment is not to be forced upon P, but that “serious thought should be given” to whether a DoL order may realistically be needed and if so, to apply without delay.  The message here aligns with the judicial consensus and guidance, that a timely application not only ensures that patients are spared prolonged distress but also minimises the complexity and risk associated with more advanced procedures. The judge noted that “unnecessary” applications, if issued early enough, may be withdrawn with minimal impact; the harm lies in applications made too late to avoid potentially preventable distress. Put simply, it is better to make an unnecessary application than to wrongfully fail to apply!  The Health Board’s delay highlighted several procedural breakdowns, including a lack of legal representation in key meetings that prolonged decision-making, and staff absences. The court remarked that these factors do not excuse a delay in proceedings where “every day that passed meant the options for NN narrowed.” This case reinforces that, where time is critical, legal teams should work in tandem with medical professionals to assess the urgency of any likely court application, even if all evidence is not yet gathered. It is worth noting, however, that these difficulties are compounded and only likely to increase with cuts to local authorities and health boards and with social workers and in house legal staff haemorrhaging across the board – whilst it is absolutely right for the Court of Protection to find that these delays and staffing concerns do not excuse the delay to P, they do go some way to explaining how these cases continue to return to the Court.  Section 4B of the Mental Capacity Act 2005 offers specific guidelines regarding the deprivation of liberty for life-sustaining treatment or “vital acts” necessary to prevent serious deterioration. Under section 4B, steps that might restrict a patient’s liberty can be authorised if four key conditions are met: the purpose of treatment, the necessity of the steps, a reasonable belief that the patient lacks capacity, and either an ongoing court decision or an emergency situation.  In this judgment, Victoria Butler-Cole KC discussed the practical application of section 4B in circumstances like NN’s, where the risk of future deprivation of liberty might be raised without certainty that such restrictive measures would be required. The judge emphasised that, where a patient is expressing a consistent wish to proceed with a procedure, courts should consider “how likely it is that those measures will be needed.” Butler-Cole KC observed that this may be particularly relevant where the patient does not display any specific indicators of resisting treatment, such as persecutory delusions or ingrained fears, as in NN’s case.  This approach reflects that taken in Shrewsbury and Telford Hospital NHS Trust v T & Anor [2023] EWCOP 20, where Lieven J noted the risk of medical decisions being unnecessarily “turned into legal ones.” Lieven J held that clinicians could, in emergency situations, rely on the doctrine of necessity rather than anticipatory declarations. This doctrine, as well as section 4B’s authorisation of emergency deprivations of liberty, underscores that judicial intervention should not be the default in urgent medical matters. The court in NN’s case echoed this view, stressing that clinicians and legal professionals must assess whether a Court of Protection application is warranted based on a realistic rather than theoretical likelihood of non-compliance.  Conclusion  Recurring systemic challenges, notably the strains on local authorities, health boards, and hospitals, where teams are stretched and resources are limited, are once again a feature being hinted at in judgments. The issues around delayed applications often stem not only from individual oversights but from deeper, structural limitations affecting public bodies. With significant funding cuts across health and social care services, these institutions face ongoing staff shortages and difficulty in retaining both social workers and in-house legal professionals. This lack of manpower frequently impedes swift decision-making and complicates already nuanced legal processes, increasing the likelihood of delays even where urgent intervention is required.  For clinicians and staff in mental health facilities, a further issue is the challenge of managing cases under both the MHA and the MCA, especially with detained patients. While legal principles for those detained under section often support treatment decisions without the need for court intervention, staff may be less familiar with the MCA’s application and its thresholds for requiring judicial oversight. Cases involving detained patients, where complex or invasive treatments are concerned, can often blur the line.  Public health staff and professionals are understandably cautious, concerned about potential legal repercussions. This hesitation, coupled with pressures from under-resourced departments, frequently results in delayed applications where court involvement may either be too late to prevent patient distress, or potentially unnecessary altogether. The judgment in NN’s case is a reminder that while the Court of Protection offers critical oversight, its resources should be invoked judiciously, with applications being made at the earliest indication of need and only when necessary.  Of course, on any interpretation, there is a risk of either overburdening the system with unnecessary applications, or worse so, professionals deciding that cases genuinely requiring an application as not requiring this. Still in its infancy as a jurisdiction, the Court of Protection has brought to light the need for clinicians to be lawyers and for lawyers to be clinicians, or better, that in such cases, open and multi-disciplinary approaches are taken as a standard course.

Lies in Family Law Proceedings – Clarification from the Court of Appeal

H (Children: Uncertain Perpetrator: Lies) [2024] EWCA Civ 1261  Avaia Williams, a pupil barrister under the supervision of Sara Anning and Rebecca Musgrove, analyses the recent judgment in H (Children: Uncertain Perpetrator: Lies) [2024] EWCA Civ 1261, which provides insight into the handling of lies and credibility in family proceedings. This case clarifies the treatment of lies in family courts, particularly as it relates to fact-finding in child welfare cases and the distinction between the criminal and family courts.  Full Judgment can be found <a href="https://www.bailii.org/ew/cases/EWCA/Civ/2024/1261.html" target="_blank" rel="noreferrer noopener">here</a>.  Facts  This case arose in care proceedings for three children following the youngest suffering bruising and fractures while in the care of their mother and her new partner (who appeared as an intervenor). Following an extensive fact-finding hearing, the trial judge concluded that both the mother and the intervenor were in a “pool of perpetrators” but could not identify either as the likely perpetrator on the balance of probabilities. Both adults had opportunity and motive, and both had told multiple lies during the proceedings, including that their relationship had ended a significant time prior to the hearing.  The mother’s appeal focused on the judge’s analysis of the identified lies and the Judge’s reliance upon the lies thereafter.  Legal Background  In addressing the mother’s appeal, the Court noted that the trial judge had correctly identified the relevant legal basis for considering lies, notably <a href="https://www.bailii.org/ew/cases/EWCA/Civ/2016/136.html" target="_blank" rel="noreferrer noopener">Re H-C (children) [2016] EWCA Civ 136</a> which held:  “in an appropriate case, a judge will not infrequently directly refer to the authority of Lucas in giving a judicial self-direction as to the approach to be taken to an apparent lie. Where the "lie" has a prominent or central relevance to the case, such a self-direction is plainly sensible and good practice […[ there should be no distinction between the approach taken by the criminal court on the issue of lies to that adopted in the family court. Judges should therefore take care to ensure that they do not rely upon a conclusion that an individual has lied on a material issue as direct proof of guilt."  As well as the recent case of <a href="https://www.bailii.org/ew/cases/EWCA/Civ/2021/451.html" target="_blank" rel="noreferrer noopener">Re A, B and C (Children) [2021] EWCA Civ 451</a>, in which the Court suggested it would be good practice:  “…when the tribunal is invited to proceed on the basis, or itself determines, that such a direction is called for, to seek counsel's submissions to identify: (i) the deliberate lie(s) upon which they seek to rely; (ii) the significant issue to which it/they relate(s), and (iii) on what basis it can be determined that the only explanation for the lie(s) is guilt.”  Lord Justice Peter Jackson highlighted the importance of examining lies within the specific context of family proceedings, where they often play a role in assessing credibility but do not always carry the same implications as in criminal trials.  The Appeal  The mother’s appeal raised three grounds:  The Handling of Lies: She argued that the trial judge inadequately analysed her lies and should have excluded them from consideration unless they indicated guilt.  Identification of the Perpetrator: She contended that the judge had not sufficiently distinguished between her and the intervenor as potential perpetrators.  Factual Findings: She claimed the judge’s conclusion was contrary to the weight of the evidence.  Lord Justice Peter Jackson responded with a clarification on the interpretation of lies in the family context. He noted that while the Lucas direction’s caution is prudent, it should not lead to the exclusion of lies from consideration unless their only explanation is concealment of guilt.  The key passage is illustrative:  “I would therefore make one observation about the description of good practice in Re A, B and C. At [58(iii)] it is said that the court should seek to identify the basis on which it can be determined that the only explanation for the lie(s) is guilt. That draws on the slightly different jury direction in the Crown Court Compendium… which requires that a lie is only capable of supporting other evidence against a defendant if the jury are sure that it was not told for a reason advanced by or on behalf of the defendant, or for some other reason arising from the evidence, which does not point to the defendant's guilt.”  Lord Justice Jackson continued, rejecting an overly literal application of Re A, B, and C in the family context:  “Relying on a literal reading of Re A, B and C, Mr Barnes [for the mother] further argues that the court is required to exclude a lie from consideration altogether in any case where it cannot be satisfied… that the only explanation for it is to conceal guilt. I do not accept that submission… A general exclusionary rule, exclusively directed at lies, would be inconsistent with the duty on the court to consider all the evidence… It will be sufficient for the judge to recall that the true significance of a lie must be carefully assessed, for all the well-known reasons noted by the judge in the present case.”  In sum, he stated, “Any other approach would hamper the court in carrying out its important assessment of credibility and its evaluation of particular issues of fact.”  Commentary  This judgment offers valuable guidance on how family courts should consider lies within fact-finding hearings. Although the Lucas direction advocates restraint when considering lies, the court’s duty in child welfare cases is to weigh all evidence and assign due significance to lies where relevant to credibility or a party’s overall behaviour.  Re H (Children) thus brings a refinement to the guidance provided in Re A, B, and C, clarifying that courts are not required to apply a restrictive interpretation in family matters. In assessing lies, judges may consider these as part of a holistic view without needing to exclude them unless they clearly indicate guilt. This more flexible approach ensures that the court can evaluate the broader context of each case, rather than being unduly limited by any single direction.  Lies must therefore be assessed with a sense of proportion, contextualising them as part of the overall picture. It also reaffirms that lies should be contextualised, not as proof of guilt but as part of a broad evaluation of credibility and reliability.  The decision reinforces a measured approach to lies in family proceedings, ensuring that courts can consider all evidence without being overly constrained by the Lucas direction. By clarifying that lies can be relevant even if their purpose is not solely to conceal guilt, the judgment supports the family court’s focus on a holistic assessment aimed at safeguarding the child’s welfare, whose interests remain paramount, over that of the protections placed on parents which the Lucas direction otherwise seeks to safeguard.  With different aims and procedural basis, notably the interests of the child in each case being at the centre of the Courts decision, it is only right that the Family Court not strap itself firmly to Lucas, evolution of this direction must be very carefully handled, but allowing a more flexible approach to lies, the Court is able to consider the wider picture to cases.

Parklane Plowden named Barristers’ Chambers of the Year at Personal Injury Awards 2024

Parklane Plowden Chambers are delighted to have been named Barristers’ Chambers of the Year at the Personal Injury Awards 2024.  Chambers are delighted to make a positive difference within the legal sector and local community through charitable work. To find out more about the work Chambers does to make a positive difference, please click <a href="https://www.parklaneplowden.co.uk/positive-difference/" target="_blank" rel="noreferrer noopener">here</a>.  Congratulations to all the winners and nominees!

Leila Benyounes to speak at the British Orthopaedic Trainees Association Congress

The British Orthopaedic Trainees Association’s (BOTA) flagship event is taking place from the 26th – 29th November at the Edwardian Hotel, Manchester.  Leila is leading the medico-legal session on 28th November on Inquests and Coroner’s Court and running a Mock Inquest for delegates.  Leila is Head of the Inquests Team at Parklane Plowden Chambers and is ranked as a leading junior in Legal 500 and Chambers and Partners for Clinical Negligence and Inquests and Inquiries. Her full profile can be accessed <a href="https://www.parklaneplowden.co.uk/barristers/leila-benyounes" target="_blank" rel="noreferrer noopener">here</a>.

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13 May 2025

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

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Compassion vs Culpability: Morris v Morris &amp; Ors [2024] EWHC 2554 (Ch)