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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>.

He Said, She Said: Witness Credibility in Deakin-Stephenson v Behar & Chelsea and Westminster Hospital NHS Foundation Trust [2024] EWHC 2338 (KB)

Background:  The Claimant attended hospital in November 2016 following pains in her abdomen and was diagnosed with diverticulitis. Treatment of the abdominal condition was attempted but on the 5th day of her time in hospital, the disease progressed. A surgical procedure was carried out on the 6th day, which settled her condition. On the 7th day, the Claimant collapsed and emergency Hartmann’s surgery was performed, resulting in the Claimant being left with a stoma. The prognosis was for chronic abdominal pain and PTSD, amongst other conditions.  There were a significant number of unknown facts in the case. For example, the parties disagreed about the chronology, consent process and requests for referrals to a specialist colorectal surgeon.  Claimant’s evidence:  The Claimant appears to have given in a generally unfavourable way. However, the judge noted that “the court places limited weight on demeanour as a reliable guide to where the truth lies”. Instead, the content of the evidence was more important. The Claimant’s answers were thought to contain notable inconsistencies when compared to the First Defendant’s contemporaneous evidence.  A central dispute between the parties was whether the Claimant did indeed, as she submitted, ask Mr Behar for a repeated referral to a specialist colorectal surgeon. When cross-examined, she became “abrasive” and did not answer questions directly. She answered by providing “speeches”, often with medical material she has since learned of upon being diagnosed with her condition. On the referral issue, she undermined her point on several occasions. Emails and letters from the Claimant herself undermined the reliability of her account.  The Claimant’s occasional sarcasm was also considered to be “unhelpful” and “unnecessary”. Overall, her evidence was thought to be “confused and contradictory”. The medical evidence contradicted what was said at trial, presenting her as unconvincing.  The Judge concluded that, while she has faced significant trauma from the events of November 2016, her account raised “serious concerns” regarding the accuracy and probability of what happened. It was found to be “inaccurate, unreliable and improbable”.  First Defendant’s evidence:  Mr Behar was able to explain his medical notes and identify his entries. He accepted that some of his entries were unclear. The evidence was complicated by inconsistent contemporaneous records. Mr Behar’s record-keeping was poor with gaps about meetings with the Claimant. Despite this, he was found to be honest and the fact that the records existed, albeit incomplete, were key to assessing what was the most likely version of events.  The near-contemporaneous evidence supported his account. His honest demeanour was considered alongside the records. The fact that he acknowledged his shortcomings of making errors was in his favour. He was deemed to be telling the truth while the records contradicted C’s account.  Mr Justice Dias KC assessed both witnesses by considering the full context of each account. This approach looks records, expert evidence and common sense.  Decision:  The Judge, Mr Justice Dias KC, sitting in the High Court, considered both accounts of the Claimant and the First Defendant.   The Judge decided that the Claimant’s evidence lacked credibility on several issues. Her statements were misleading and the court deemed her evidence as “weak” overall.  Ultimately, it was held that there was no breach of duty and no causative breach by the First Defendant.  In contrast, the First Defendant was assessed by the court as honest, fluent and fair. His professionalism and credibility were commended.  Analysis:  This case is a useful example of how to approach the issue of witness credibility. It was specifically and repeated stated that demeanour is not especially significant but that it will be considered when assessing witnesses. This is particularly important when the factual matrix of the case is unclear. In order for the court to make a finding of fact, the evidence from witnesses must also fit together with the contemporaneous records, expert evidence, common sense and probability.  In addition, practitioners should remember the importance of detailed record keeping and how it may detriment a case. Those making the record should be prepared for every word, down to adverbs, to be scrutinised. The record-keeping process, and the content of the records themselves, may be crucial on a case with key factual disputes.    Finally, the judgment is also useful as it helpfully outlines 13 principles of fact-finding (see  paragraph 53 of the Judgment). In summary:  <ol class="wp-block-list"> <li> The burden of proof rests exclusively on the person making the claim who must prove the claim to the conventional civil standard of a balance of probabilities.</li>  <li>Findings of fact must be based on evidence, including inferences that can properly (fairly and safely) be drawn from the evidence, but not mere speculation.</li>  <li> The court must survey the "wide canvas" of the evidence.</li>  <li>Evidence must not be evaluated "in separate compartments" but must "consider each piece of evidence in the context of all the other evidence".</li>  <li>The process must be iterative, considering all the evidence recursively before reaching any final conclusion.</li>  <li>The court must decide whether the fact to be proved happened or not. Fence-sitting is not permitted.</li>  <li>The law invokes a binary system of truth values – a judge must decide whether or not it happened.</li>  <li>There are important and recognised limits on the reliability of human memory as set out in Gestmin SCPS S.A. v Credit Suisse (UK) Ltd EWHC 3560 (Comm) at paras 15-22, per Leggatt J.</li>  <li>The court "takes account of any inherent probability or improbability of an event having occurred as part of the natural process of reasoning".</li>  <li>Contemporary documents are "always of the utmost importance" (Onassis) but in their absence, greater weight will be placed on inherent probability or improbability of witness's accounts.</li>  <li>The judge can use findings affecting the credibility of a witness on one issue in respect of another.</li>  <li>However, the court must be vigilant to avoid the fallacy that adverse credibility conclusions/findings on one issue are determinative of another and/or render the witness's evidence worthless.</li>  <li>Decisions should not be based "solely" on demeanour, but when fairly assessed in context, it retains a place in the overall evaluation of credibility.</li> </ol>  Conclusion:  The case provides a useful lesson in not only the content of witness statements but also how witnesses present. Ultimately, contemporaneous records will be favoured, provided the records are clear and logical. If there is a dispute about witness credibility, the account that aligns with the contemporaneous evidence is likely to be the most probable, as in this case.  The full judgment can be found <a href="https://www.bailii.org/ew/cases/EWHC/KB/2024/2338.html#para151" target="_blank" rel="noreferrer noopener">here</a>.

Adoption Records – PLWG Best Practice: A Guide

In this second article in a series covering the Public Law Working Group’s recommendations for best practice for adoption, I consider Chapter 2 of the PLWG report. This section covers the crucial issue of access to adoption records. For children who have been adopted, and their families, the ability to access information on birth families can be vital in facilitating connections and ensuring that the child’s sense of identity is secured. This chapter advocates for a simpler, accessible and streamlined approach to accessing records.  As with the rest of the 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 to what the report recommends.  Introduction  It is of huge importance to those who have been adopted to be able to access information about their birth families. Whilst there is of course a need for sensitivity, the historic “shroud of secrecy” that has cloaked adoption for many years is to the clear detriment of all involved. There are several routes to accessing information, most notably via the adoption agency, however, the Courts have seen an increase in requests for access to information, prompting the Working Group to consider whether there is a need for reform.  Following work on the PLWG report starting, the individuals behind a significant amount of the research which formed part of the report, announced a project that seeks to identify and address the barriers to tracing – A briefing paper was prepared on this which the PLWG notes covers this area in greater detail, including some important recommendations (practitioners may find this briefing paper of use).  Routes To Obtaining Access to Records  The Working Group identified numerous routes to obtaining access to records. These routes are dependant on who is making the application and the date on which the adoption took place.  Pre-Commencement Adoptions are those adoptions which took place prior to 30 December 2005, the following are routes to obtain access to records:  <ul class="wp-block-list"> <li>Adults adopted before 12 November 1975 – can apply to the General Register Office (GRO) for a copy of their original birth certificate. The GRO must also provide certain information from the Adoption Contact Register. If the applicant does not know the original names of their birth parents (as is common pre-1975), counselling is mandatory. Those adults can apply to the GRO who will send forms to the applicants relevant Local Authority or Adoption Support Agency (ASA). Once the birth certificate is obtained, adoption records can be applied for.</li>  <li>Those adopted between November 1975 and December 2005 – can also apply to the GRO in the same way as above. Birth parents were not offered anonymity during this period so counselling is not a requirement.</li>  <li>Court application post GRO information – the information provided by the GRO above will identify the Court who ordered the adoption, an application can then be made for the details of the adoption agency, once they are identified the adoption agency can be applied to for records. These forms of application are usually made by the Local Authority or ASA. If the adoption agency is not in possession of the files, the court directly can provide this information.</li>  <li>Intermediary applications – under The Adoption Information and Intermediary Services (Pre-Commencement Adoptions) Regulations 2005, an individual can apply for information. Such information can not be disclosed without consent of the subject of the information. This route may be subject to charge whereas other routes are not. This route is available to those who have been adopted, their birth relatives and anybody under s.1 CFA 2014 can apply.</li>  <li>Subject Access Request – adopted adults can apply to the Local Authority for any information about time they have spent in care, these records fall outside the remit of adoption regulations and are governed by data protection legislation. These requests must be dealt with in line with the Data Protection Act 2018.</li>  <li>Direct court applications – anybody can apply pursuant to rules 53(4) Adoption Rules 1984 and 32(6) Magistrates Courts (Adoption) Rules 1984. Such documents require leave of the court to be subject to disclosure. This route is not limited to specific individuals.</li>  <li>Exceptional application – orders can be made against the Registrar General to disclose information to obtain a certified copy of birth under s.79(4) ACA 2002 on application by any person only in ‘exceptional circumstances’.</li> </ul>  Post-Commencement Adoptions are those adoptions which took place on or after 30 December 2005, applications for information regarding these adoptions are more regulated, with the following being routes to obtain access to records:  <ul class="wp-block-list"> <li>S.60(2)(a) ACA 2002 – allows an adopted adult to apply to the adoption agency for information which will enable them to obtain their birth certificate. The adopted person or the adoption agency can then apply to the GRO. The adoption agency can apply to prevent disclosure in exceptional circumstances.</li>  <li>S.60(2)(b) ACA 2002 – allows an adopted adult to apply to the adoption agency for the information shared with adopters during proceedings (this will be the Child Permanence Report and other relevant information).</li>  <li>S.60(4) ACA 2002 – allows an adopted adult to apply for those documents listed in rule 14.18 and PD14F FPRs. Such disclosure is subject to redaction (unlike under s.60(2)).</li>  <li>S.61 ACA 2002 – allows a person to apply for information from an adoption agency which is related to an adult. There is a discretion to provide this and the agency may need to seek permission to disclose information, and there is a requirement to take reasonable steps to obtain the views of those adults to whom the information relates. Under s.62, a similar provision exists to obtain protected information about a child.</li>  <li>Subject Access Request – as above, an individual can apply for their care records pursuant to the Data Protection Act 2018.</li> </ul>  Finally, there are two routes under the Family Procedure Rules 2010 to obtain information. Firstly, pursuant to Rule 14.24 which allows documents to be disclosed by direction of the court. Secondly, pursuant to Rule 14.14 which provides the Court with discretion to communicate information. There is no restriction or guidance on the use of Rule 14.14.  The PLWG Report appends a flowchart at Appendix A of Chapter 2 which shows the routes to obtaining the original birth certificate, seeking information via intermediary services, pre-commencement access, and post-commencement access.  Which Agencies Hold Records  Adoption records are, in the first instance, kept by the relevant adoption agency, that being the agency responsible for placing the child. This could the via a Local Authority or voluntary agency. In 2020, responsibility for disclosure was passed from the local adoption agency level to regional adoption agencies. The expectation being a smaller number of more structured and resources agencies should be able to better address the deficits seen in adoption.  The regional agencies tend to hold responsibility for adoption support, but there remains confusion in where to seek support. Some agencies contract work and some do not. In addition, many records are still held in paper format.  Supporting an individual to access records is a significant time commitment which the responsible agencies in England and Wales simply do not have the resources to dedicate. There are lengthy waiting lists as demand outweighs available resources.  Applications to Court  Usually reserved for situations where difficulties have been encountered in accessing information via the adoption agency, though there is no restriction to only these situations. An issue with applications through the courts is that many courts have closed or merged into combined centres; there is no register or facility which identifies where records from these courts will be.  There is limited guidance available to courts on what the approach should be for adoption disclosure applications made pursuant to the general powers in rules 53(4) and 32(6) and FPR 14.14 and 14.24; judges across the country have raised concerns about how to determine these applications.  There is only one reported case which deals with this issue, in Re X (Adopted Child) Access to Court File [2014] EWFC 33, several principles were laid down in relation to an application by the daughter of an adopted person where the adopted person and adoptive parents were all deceased, the principles were:  <ol style="list-style-type:upper-roman" class="wp-block-list"> <li>The court has discretion whether to disclose information contained within the court file.</li>  <li>The court should have regard to all the circumstances and exercise this discretion in a just manner.</li>  <li>Maintaining confidence in the confidentiality of adoption files is an important public policy consideration.</li>  <li>The time since the order and whether any affected parties are deceased are both important considerations.</li>  <li>The connection between the applicant and the information sought should be considered.</li>  <li>The court must take account of the impact of disclosure on any relevant third parties (though it should consider if any safeguards could mitigate this).</li> </ol>  Whilst this guidance provides some structured approach, in practice judges report this guidance is of limited assistance as the facts of Re X were so uncontroversial with respect to making the disclosure.  Current Practice  The PLWG conducted a country wide survey to consider how disclosure applications are dealt with. From this survey, the Working Group identified 10 key findings:  <ol class="wp-block-list"> <li>Most requests are from adults regarding pre-commencement adoptions.</li>  <li>Many services noted insufficient resources to meet demand.</li>  <li>Service availability varies across the country.</li>  <li>The approach to applications, and the responses received, is inconsistent.</li>  <li>Support agencies and the courts both identified an increase in demand.</li>  <li>The judiciary deal with applications inconsistently, including the detail required on the application, the criteria applied in deciding, the level of judge who deals with applications, and whether applications require a hearing.</li>  <li>Courts set their own timetables and some courts do not prioritise requests.</li>  <li>There is confusion about the difference in pre and post commencement adoption.</li>  <li>There are few services available for pre-commencement adoptions.</li>  <li>A quarter of courts charge a fee, with there being no standard fee.</li> </ol>  The process as it stands is inconsistent, confusing, time consuming and inadequate. Given the importance of access to information for adopted people and their families, the current practice is not good enough.  Recommendations  The report makes several recommendations, all of which were agreed and endorsed by the overwhelming majority of respondents to the consultation. These recommendations are  explored below, however an overriding theme from those concerned was:  “…that adoption should be recognised for the lifelong process that it is, and that those affected should have access to services and support at a point in their lives when it is needed.”  Training – Experiential training may assist professionals to understand the real world impact of adoption. Those who prepare adoption reports should receive sufficient training and this should be available to all professionals across the board of adoption work. The Working Group also recommend that adopters receive training on information sharing and contact with birth relatives.  Service Information – Comprehensive information should be available online across the spectrum of relevant stakeholders, including adoption agencies, support services, the courts and more. There should be simple advice on how to apply for a birth certificate, adoption records, and how to engage with intermediary services. The Working Group has prepared a template application form, but recommends a template is formulated by Adopt England and NASW to ensure national consistency.  National Registers – There needs to be greater clarity as to the whereabouts of adoption records:  “www.familyconnect.org.uk and www.adoptionsearchreunion.org.uk are of great assistance to service users and professionals alike, and Family Connect is developing into the ‘go to’ hub for finding out about adoption agency records and how to find relatives lost through adoption.”  The PLWG endorses a central and maintained source of adoption information. All agencies endorsed the need for an easier way to locate records and a National Register of Court Adoption Records should be established via cooperation with HMCTS.  Record Retention – There should be a protocol to standardise archiving, retention and retrieval of information. The PLWG endorses the recent good practice guide, <a href="https://www.accesstocarerecords.org.uk/wp-content/uploads/2024/03/CALGG_FINAL-adoption-and-care-experienced-records2024.pdf" target="_blank" rel="noreferrer noopener">The records of Adopted and Care-Experienced People – Good Practice Guidance for Record-Keepers and Care Professionals</a>. Further, it is recommended that adoption records are retained for at least 100 years, it being recognised that descendants of adopted people have a stake in making applications many years down the line. This 100 year period would reflect that already in place with the courts.  Counselling – Under Schedule 2 ACA 2002, counselling is only required for those adopted pre November 1975. Even then, the counselling is in the form of advice, guidance and support, not therapeutic counselling:  “The lack of definition of the term counselling in adoption legislation and guidance has created confusion over the years, and if this cannot be resolved we recommend that agency workers and their service users should decide together what kind of support might be of use in any given situation.”  Timescales – Applications should be dealt with in consistent, appropriate and realistic timescales. For courts, there should be a national protocol providing a standard procedure; 14 days for acknowledgment, 28 days to locate a file, and full response within 4 months are recommended as appropriate. Good communication is key where there are any delays.  For adoption agencies, there should be timescales compatible with the court process. Whilst consideration needs to be given to resources, it is important for agencies to meet reasonable timescales. The PLWG advises a response within 1 month (in line with SARs)l allowing for a response within 4 months for complex requests.  Priority should be given to pre-1976 adoptions.  Exercise of Discretion – Guidance should be given (or approved) by the President of the Family Division in respect of the exercise of discretion in disclosure applications. This guidance should account for information sharing practices, primary legislation, and the pre and post-commencement regulations.  Review of Post-Commencement Adoptions – There should be a review by the Government as to the provision of information for post-commencement adoptions, ensuring inconsistencies or anomalies are addressed.  Intermediary Services – For pre-commencement adoptions, intermediary services need to be accessible to all adopted adults and their relatives, those adopted pre-1976 should be treated as a priority.  For post-commencement adoptions, there is currently no provision, the PLWG recommends s.98 ACA 2002 is amended to include post-commencement adoptions, noting the evidence supports the need for intermediary services.  The GRO should hold a register of vetoes such that an intermediary who requires information from the GRO can include a request for veto information at the same time, saving time for the birth relatives.  Service User Views – The Government should specifically seek out and address the experiences of adopted adults who request access to their adoption records.  GRO – Whilst beyond the scope of the PLWG report, it is noted that improvement are required within the GRO.  Practice Guidance and Statutory Guidance – New practice guidance for pre and post-commencement adoptions has been produced by IASA, however, the statutory guidance has not been updated in 11 years.  The statutory guidance should include information on how adoption information should be shared between Local Authorities and Regional Adoption Agencies as RAAs were not in existence at the time of the last guidance. There should also be updated statutory guidance on s.62 applications.  Wales – There is currently no statutory guidance on access to information or intermediary services in Wales, there is limited reference within the Codes of Practice, but these should be updated to ensure detailed guidance.  Clear Records – Adoption records should be in plain and appropriate English. There needs to be greater clarity regarding who records are for, notably the Child Permanence Report is a document for the court, the adopters, but also the child themselves – the requirements of such a document should be clear to the author at the outset.  Conclusion  Chapter 2 of the Public Law Working Group’s report emphasises the vital role of accessible adoption records in supporting adopted individuals' sense of identity and connection to their history. The recommendations call for a move from the current fragmented and inconsistent system to one that prioritises clear and consistent access to information. This is essential to ensuring that adopted people can navigate their personal histories with dignity and support.  Central to these recommendations is the need for standardised training, regulation, and guidance for professionals across adoption services. Such consistency will ensure that all involved are equipped to handle adoption records access with the sensitivity and understanding that the lifelong impacts of adoption demand. The recommendations further advocate for centralised registers and protocols that remove barriers and simplify access to vital information, making it a right rather than a challenge.  The present approach to access adoption records reflects the shady legacy of secrecy in adoption, which serves to prevent individuals from fully understanding their origins. Research and experience are clear: this approach does not serve the best interests of those affected by adoption. A modern, reformed system based on these recommendations will allow adopted individuals to engage with their histories, retain connections to birth families where possible, and feel secure in their identities. Ultimately, this reformed framework promises to create a more supportive and respectful adoption system that values individuals' right to their own stories.

Parklane Plowden Chambers Appoints Senior Practice Director

Parklane Plowden Chambers has appointed Paul Clarke as senior practice director for civil and employment.  Paul's addition completes our new management structure. Paul is pictured above with (L) Senior Practice Director Stephen Render who heads our chancery and commercial and family teams, and (R) Martin Beanland, Head of Service & Finance Director.  Paul joins from Kings Chambers, where he clerked for almost 30 years and was most recently responsible for the employment, personal injury, clinical negligence, sports law and court of protection practices.  As senior practice director, Paul is working with the heads of the civil and employment teams alongside individual members to identify and implement business growth strategies. Paul’s wealth of experience will enhance the set’s clerking team and help them continue to deliver high levels of service and support to clients.  In its 2025 rankings, barristers’ directory, Chambers & Partners, placed Parklane Plowden as Band 1 across its chancery; clinical negligence; employment; and personal injury practice areas. Additionally, the set was ranked Band 2 for inquests and inquiries.  Commenting on his new appointment, Paul said: “I am delighted to be taking on this new role and joining such an established and prestigious set of chambers.  “We have an exceptional and well recognised team of barristers working closely with highly regarded and experienced support staff. This is a potent combination as we look to continue providing high level advice, advocacy and client care.  “The North Eastern circuit has a thriving legal market, and I am excited to play my part in PLP’s ongoing vision for growth.”  Formed in 2007 following the merger of Parklane Chambers in Leeds and Plowden Chambers in Newcastle, Parklane Plowden is home to 118 members.  Welcoming Paul to PLP, head of chambers, James Murphy, said: “Paul has extensive experience as a leading clerk, and we are pleased he is joining us as a senior practice director.  “At PLP, our civil and employment barristers have an established leading reputation and these practice areas represents a core growth opportunity for our set across the North Eastern Circuit.  “Having Paul on board will be instrumental in achieving this. We look forward to leveraging his leadership and management expertise to ensure high quality services are maintained for our clients as we go from strength to strength.”    Chambers & Partners also placed Parklane Plowden as Band 1, the highest ranking a chambers can achieve, across family and children and Band 2 for family: matrimonial finance.  The 2025 edition of legal directory The Legal 500 ranks Parklane Plowden Chambers as a tier one barristers’ set across five practice areas. These include chancery, probate and tax; clinical negligence; employment; family and children law and personal injury.  In addition, The Legal 500 recommends 79 of the set’s barristers across 11 practice areas.

Non-Sexual Transmission of Gonorrhoea in Children Cases

Liverpool City Council v M and F and P [2024] EWFC 318 (B)  Avaia Williams, a first six pupil under the supervision of Sara Anning and Rebecca Musgrove, explores the fact-finding judgment in Liverpool City Council v M and F and P [2024] EWFC 318 (B). This case examines the complex issue of inferring sexual abuse versus nonsexual transmission in cases involving sexually transmitted infections in children.  The case concerned a six-year-old girl, C, diagnosed with gonorrhoea, with no allegations of abuse made by the child. The local authority sought findings against the mother or maternal uncle, asserting the infection must have been sexually transmitted. However, expert evidence highlighted the rare but plausible alternative of nonsexual transmission via fomites (such as shared towels in a humid environment).  The Court, guided by established principles, scrutinised the evidence holistically and found insufficient proof of sexual abuse and concluded that the likely cause was nonsexual transmission due to the uncle’s poor hygiene while contagious.  This judgment reiterates the necessity for thorough, evidence-based evaluations in such cases, avoiding premature conclusions based on the presence of an STI alone. It also highlights the broader implications for culpability and significant harm findings, even where transmission is nonsexual - the infection itself being a cause of harm, rather than the way it has been communicated.  It is understood that the Local Authority is appealing this decision.  The full summary on Family Law Week can be found <a href="https://www.familylawweek.co.uk/judgments/liverpool-city-council-v-m-and-f-and-p-2024-ewfc-318-b/" target="_blank" rel="noreferrer noopener">here</a>.  The full Judgment can be found <a href="https://www.bailii.org/ew/cases/EWFC/OJ/2024/318.html" target="_blank" rel="noreferrer noopener">here</a>.

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