Victoria Steele, Author at Parklane Plowden

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The Challenge of Proving Prevention: The Inquest of Linda O’Brien v Assistant Coroner

The High Court rejected an application for judicial review in the case of <a href="https://www.exchangechambers.co.uk/wp-content/uploads/2025/02/AC-2023-MAN-000263-Sharon-OBrien-v.-HM-Assistant-Coroner-for-Sefton-Knowsley-and-St-Helens-Judgment.pdf">O’Brien v HM Assistant Coroner for Sefton, Knowsley and St Helens</a> which limited the scope of the inquest into the death of Linda O’Brien. Linda's family contended that had her ex-partner, who was subject to a restraining order but present at her flat on the day of her death, been arrested one month prior, her death might have been prevented. The judicial review was of a decision taken by Mr Graham Jackson, HM Assistant Coroner, on 15 March 2023 that there was no coronial causation established linking previous conduct by officers of the Merseyside Police and the events resulting in Linda’s death.  Background and scope  Linda O’Brien died on 9 May 2020 after falling from a fourth-floor window at the age of 49. Her ex-partner, Alan McMahon, was the only other person present in her flat at the time. Mr McMahon was subject to a five-year restraining order due to a history of previous violence towards Linda.  One month prior to her death, on 7 April 2020, four police officers attended Linda’s flat, finding Mr McMahon present and intoxicated. The officers were unaware of his restraining order and maintained that they had checked relevant police databases which showed no reference to the restraining order. They maintained that if they had been aware of the order, they would have arrested him for breaching it.  On 9 May 2020, Mr McMahon called the emergency services when Linda fell from the window. The police attended and arrested Mr McMahon on suspicion of murder. A postmortem examination of Linda’s body found she was significantly intoxicated, and additional injuries were present which suggested possible prior assault.  On 19June 2020, Mr McMahon was sentenced to 20 months’ imprisonment for breach of restraining order and theft. The accusation of murder was not proceeded with.  On 7 June 2022, a pre-inquest review hearing was held, and a request for a second pre-inquest review hearing was made. On 15 March 2023, after considering submissions by the Claimant and Merseyside Police, the Coroner made the decision that there was no coronial causation between the events involving police officers on 7 April 2020 and events on 9 May 2020. He decided the inquest should focus solely on the events of the night Linda died, excluding the failure to arrest Mr McMahon on 7 April. Consequently, the inquest's scope was limited, and the police's prior failures were considered only as background information.  The Claimant was given permission for judicial review of this decision on the grounds that the Coroner had erred in “prematurely and irrationally deciding that there [was] no causative connection between the acts and omissions of Merseyside Police and the death of Linda O’Brien and thereby unlawfully limiting the scope of the investigation.” [28] They argued that earlier police action could have prevented the death and that the police’s failure to act should have been fully investigated.  Outcome  The High Court, in its judgment handed down in February 2025, dismissed the application for judicial review.  The court acknowledged that had Mr McMahon been arrested earlier, he might have been in custody on 9 May 2020, and it was therefore “possible that Linda’s death would not have occurred.” [42] However, this scenario was deemed "entirely speculative" [42] and unsupported by evidence. It was held that a substantive causative link could not be established on the balance of probabilities, and there was insufficient evidence to demonstrate that Mr McMahon would have been in custody on the date of Linda's death. It could not be proved that, on balance, “anything done or not done by police officers on 7 April or subsequently more than minimally, negligibly or trivially contributed to Linda’s death.” [47]. Therefore, the Coroner was entitled to rule the police conduct out of the scope of the inquest, and the decision to limit the scope of the inquest was upheld.  The Court also rejected the claim that the inquest required a jury under section 7 of the Coroners and Justice Act 2009 due to potential police failings. As no probable causative link could be shown, the threshold for requiring a jury was not met.  Commentary  This case underscores a broader and enduring tension within coronial law: the need to balance the public interest in accountability with the evidentiary thresholds that define and constrain a coroner’s jurisdiction. Bereaved families may look to the inquest process for a fuller understanding of the circumstances surrounding a death, particularly in cases involving domestic abuse, institutional failings, or missed safeguarding interventions. But the law remains tightly bound to legal causation. The critical legal distinction between what is possible and what is merely speculative remains at the heart of the decision in this case.  While the police's failure to arrest Mr McMahon on 7 April 2020 was a significant oversight, the court's decision reflects the difficulty in establishing a direct link between this failure and Linda's subsequent death. The ruling highlights the legal principle that inquests must be based on evidence that can establish causation on the balance of probabilities, rather than on speculative scenarios. As a result, even serious institutional shortcomings may fall outside an inquest’s formal remit if they cannot be shown to have contributed, more than minimally or trivially, to the death.  Lucy Evanson is part of the Inquests Team at Parklane Plowden. Lucy’s profile can be accessed <a href="https://www.parklaneplowden.co.uk/our-barristers/lucy-evanson/">here</a>.

Nicola Phillipson TEP Book Launch in collaboration with Freeths LLP

Join PLP's <a href="https://www.parklaneplowden.co.uk/our-barristers/nicola-phillipson-tep/" target="_blank" rel="noreferrer noopener">Nicola Phillipson</a> on Thursday 12 June in collaboration with Freeths LLP for an exclusive event to celebrate the launch of her book, A Practical Guide to the Law in Relation to Presumption of Death and Guardianship Orders.  This event will start at 16:00 and finish at 18:30 and will be held at: Freeths Leeds office 10th Floor Central Square 29 Wellington Street Leeds LS1 4DL  The format of the event will be as follows:  <ul class="wp-block-list"> <li>Arrival tea/coffee and networking</li>  <li>An overview from Nicola about the content and relevance of her book, with some recent case examples</li>  <li>Further networking with drinks and nibbles</li>  <li>A business card raffle with a chance to win a copy of Nicola’s book</li> </ul>  Spaces are limited, please register your interest <a href="https://assets-gbr.mkt.dynamics.com/1ca2a557-83cc-ed11-a10b-6045bdd20aa0/digitalassets/standaloneforms/53c3298a-7cbf-ee11-9079-002248004ea8?readableEventId=Book_Launch_Networking_Reception1570323324&utm_source=Dynamics%20365%20Customer%20Insights%20-%20Journeys&utm_medium=email&utm_term=N/A&utm_campaign=SN:%20Book%20Launch%20&%20Networking%20Rece%2036ed20&utm_content=Book%20Launch%20&%20Networking%20Reception%2012%20June%202025#msdynmkt_trackingcontext=9509eda5-f4e7-4e1d-a503-b6830cb00200&msdynmkt_prefill=mktprfa063352165f346e3b874a89cbece4074eoprf" target="_blank" rel="noreferrer noopener">here</a>.

Parklane Plowden Chambers Announces Two New Deputy Heads

Parklane Plowden Chambers is delighted to announce the election of two deputy heads of chambers, <a href="https://www.parklaneplowden.co.uk/our-barristers/sarah-harrison/">Sarah Harrison</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/sara-anning/">Sara Anning</a>.  Sarah was first elected as deputy head of chambers in 2023. Following her re-election, she will continue in her role as a director of Plowden Facilities. Sarah was also the head of the chancery and commercial team at Parklane Plowden until 2023.  Sara Anning was appointed as a Recorder (Family) on the North Eastern Circuit and has sat as a Fee Paid Judge of the Mental Health Tribunal since 2018. As deputy head of chambers, Sara will lead on career progression for members of chambers and pastoral issues.  Commenting on their elections, head of chambers, <a href="https://www.parklaneplowden.co.uk/our-barristers/elizabeth-hodgson/">Elizabeth Hodgson</a>, said:  “I am delighted to be supported as head of chambers by Sara and Sarah, who are not only leading barristers in their respective practice areas but have exceptional skills that make them well-suited for the specific roles that each will fulfil as deputy heads of chambers.  “Their appointments are significant for Chambers, not least because for the first time the head and deputy heads of chambers are an all women team.  “I look forward to working closely with them, our head of teams, and our senior management team as we continue to develop our ambitious and progressive Chambers for the benefit of our clients, our staff and our members.”

Cultural Differences: No Excuse for Unacceptable Conduct

<a href="https://www.parklaneplowden.co.uk/our-barristers/isabella-brunton/">Isabella Brunton</a> appeared for Long Clawson Dairy, the Respondent, in Mr W Falfus v Long Clawson Dairy Limited (6004179/2024), instructed by Knights plc.  Background  Mr Falfus, a Polish national, was employed by the Respondent as a Production Operative from 26 May 2015. On 29 February 2024, an 18-year-old female employee complained that Mr Falfus had followed her into the ladies’ toilets and made suggestive comments. Ms Lave, a Production Manager from the Respondent, was a partial witness to the incident and made a contemporaneous statement on the same day. Following a disciplinary hearing held over two dates, 21 March 2024 and 28 March 2024, Mr Falfus was summarily dismissed on grounds of gross misconduct. He appealed the decision, however following an appeal hearing on 10 April 2024 the dismissal decision was upheld.  ET Findings  At the tribunal hearing Mr Falfus was assisted by a Polish translator. He identified a number of particular objections to the dismissal process that he said made it unfair [10]. One, was that there should have been training on how to behave because of cultural differences.  EJ Adkinson concluded that Ms Tisserand (chair of the disciplinary hearing) and Mr Kettle (chair of the appeal hearing) held an honest belief that Mr Falfus was guilty of misconduct, namely sexual harassment, which was therefore so severe to amount to gross misconduct [39.1]. EJ Adkinson also concluded that there was a reasonable and fair investigation and that the decision to dismiss summarily was within the “range of reasonable responses” open to the employer [39.4].  The judge also dealt specifically with Mr Falfus’ argument about the need to be trained on cultural differences and behaviour. On this, he concluded the following [40]:  “Training has its place. It may in some situations, with some workforce profiles and in some industries be necessary. I do not accept however that a reasonable employer would have been expected to have to train (in this case) men not to go into the (in this case) ladies’ toilets with a woman and then made suggestive comments. Firstly, it is plain that this was the ladies’ toilets – there is a sign on the door – and he had no business going in there. Secondly, there was no evidence that in Polish culture it is acceptable in the workplace toilets for a man to enter the ladies’ toilets, let alone to make the suggestive remarks that he did. Thirdly there is no evidence to believe that this is one of those borderline cases where there is a difference in culture that would not be apparent to a foreign worker working in the U.K. that this was unacceptable. There are things one may need to be told about differences – this was not one of them.”  This case clearly highlights the limitations of arguments regarding cultural differences in conduct dismissals and acts as a reminder that training is not required to address acts which are blatantly unacceptable.

Morrow v HM Assistant Coroner for Merseyside (Sefton, Knowsley & St Helens) [2025] EWHC 935 (Admin)

Summary  The High Court rejected an application made by the brother of the deceased pursuant to Section 13 of the Coroners Act 1988 to hold a fresh inquest and, in so doing, provided insight into the differences between the expectations of family members of the deceased and the purpose of the inquest process; particularly where there is the potential for overlap in determining issues of civil or criminal liability.  The Claimant’s application for a fresh inquest was predicated on concerns (that were mirrored by his wider family) that his sister’s mental health had not been appropriately managed by the relevant NHS Trust during her life, and that those failures had contributed to her death in April 2021 but were overlooked by the initial inquest and/or that there were failures in the inquest process which necessitated a fresh inquest being heard.  In identifying that, the Coroner’s conclusion that Zoe Morrow’s death was drug-related was a rational one. There was no evidence to suggest that it was necessary or desirable in the interests of justice to order a fresh inquest.  Background  An inquest into the death of Ms Morrow, the scope of which was determining the immediate cause of her death – rather than in relation to the concerns raised by her family regarding her treatment in the months prior – was held in March 2022 and recorded her cause of death as having been ‘1A Mixed Drug Toxicity’ – a finding supported by post-mortem and toxicological analysis showing that multiple drugs (with overlapping adverse effects) were in her blood at the time of death.  That the scope had been set in a narrow way appears to have been the subject of (at least some) challenge at the initial inquest, with particular reference having been made to the Coroner’s decision not to call live evidence from two treating Doctors and instead choosing to read their evidence into the record pursuant to Rule 23 of the Coroner’s Inquest Rules 2013.  The Claimant sought a fresh inquest pursuant to Section 13 (1) and (2) of the Coroners Act 1988 on multiple grounds, viz:  <ol style="list-style-type:lower-roman" class="wp-block-list"> <li>That failures in treatment were overlooked and that the coroner did not appropriately consider a conclusion of suicide;</li>  <li>That the family were prevented from speaking or giving evidence;</li>  <li>That relevant evidence was overlooked;</li>  <li>That there had been collusion between the Coroner and the Trust;</li>  <li>The reading of statements from treating Doctors (as opposed to calling them to give live evidence, as referred to above);</li>  <li>The addition of late evidence;</li>  <li>A lack of guidance on inquest procedure.</li> </ol>  The High Court has the power to order a fresh inquest pursuant to Section 13 (1) (b) where it is necessary or desirable in the interests of justice to do so and it is envisaged that scenarios in which that necessity could arise include (but are not limited to) insufficiency of inquiry, rejection of evidence and procedural irregularity. The framing of the Claimant’s application was potentially consistent with each such scenario but, in dismissing the application, Lady Justice Whipple observed ‘there appears to have been a mismatch between the family’s expectations of what they could achieve at this inquest and the reality of the Coroner’s investigation’.  The application  It is clear that the Court was able to deal with some of the issues raised above more swiftly than others, in particular finding that there was no evidence of collusion between the Trust and the Coroner (the finding that he had made was his own and one which he had been entitled to make) and did so having appropriately considered the toxicological evidence, with some evidence that the family had wished be considered falling outside the scope of the inquiry, a point returned to below.  In part, some of the remaining basis of the Claimant’s application appears to stem from correspondence which was intended for him, which explained which live evidence would be called and which statements would be read was not received (and could in fact now not be located) – an administrative oversight which perhaps lead to a situation where there was understandable upset from the family when it became apparent that they were not being called to give evidence. Whilst such administrative failures are always regrettable, the Court was however clear in its conclusions that the family had been allowed to speak appropriately at the inquest, including questioning the witnesses that gave live evidence and that (missing correspondence notwithstanding) appropriate efforts had been made to ensure that they understood the inquest process.  As previously indicated, it is clear that the central underlying theme of the Claimant’s application was the belief that the original inquest was unsatisfactorily narrow and that this narrow definition impacted on the cogency of the conclusion, including an alleged failure to appropriately consider a conclusion of suicide. Had they been able to do so, the family would have adduced evidence which they believed showed that Ms Morrow had intended to end her life in the months and weeks prior to her death.  The conclusion reached by the Coroner – that Ms Morrow’s death was drug related – was a factually correct one and was reached in a situation where the status of the evidence before him was not sufficient to reach a conclusion of suicide on the balance of probabilities.   It is perhaps easy to see why a bereaved family might feel (as indeed appears to have been the case with the wider Morrow family) that concentrating solely on the events immediately prior to death without consideration of context provides an unnuanced answer to the question of how the deceased died. This viewpoint might be particularly strongly held so in scenarios such as this, where the witness called to give evidence on behalf of the Trust was attending to give evidence about the Trust’s review, with the intention of identifying shortfalls in Ms Morrow’s care – although taking a step back, it appears that this evidence was more likely of use in determining whether a Prevention of Future Deaths report was indicated.  However understandable the mismatch in expectations might be, the Coroner in the initial inquest was entitled to exercise his discretion to limit the scope in the manner that he did and, taking another step back, one can see that if the scope of the inquest was set too widely, it is possible that the inquest would have strayed into an investigation into a potential civil liability, expressly contrary to Section 10 (2) of the Coroners and Justice Act 2009.  Clearly, the Court arrived at the conclusion that the original Coroner had exercised his discretion appropriately in both his determination of scope (and it is a notable observation that, regarding the limitation to the scope of the inquest, Lady Justice Whipple was of the view that ‘most coroners would…have made a similar decision in the circumstances’) and in determining from whom live evidence was to be heard.  There was, therefore, no substantial defect in the first inquest and the inquiry which did take place was sufficient as a matter of law.  Adam Chadwick is part of the Inquests Team at Parklane Plowden. Adam's profile can be accessed <a href="https://www.parklaneplowden.co.uk/our-barristers/adam-chadwick/">here</a>.

When a Sigh Becomes a Legal Issue: The Implications of Non-Verbal Discrimination

In a striking reminder of the constant evolution of workplace dynamics under equality law, a UK Employment Tribunal ruled that non-verbal expressions such as sighing or exhaling in frustration at a colleague could amount to workplace harassment and/or discrimination. This decision highlights the growing recognition of the impact of subtle, often-overlooked behaviours, particularly in cases involving employees with disabilities.  The judgment of <a href="https://assets.publishing.service.gov.uk/media/6826e7a8a4c1a40fde4e6487/Mr_Robert_Watson_-vs-_Roke_Manor_Research_Limited_-_1405658.2023_-_Judgment.pdf">Robert Watson v Roke Manor Research Limited</a> was published last week, concerning a software engineer with ADHD. The Tribunal heard that his project manager repeatedly sighed and made exaggerated exhalations directed at him, which were interpreted as expressing irritation or disapproval. The Claimant was also criticised for his timekeeping and focus issues, both of which were linked to his ADHD, and endured demeaning comments such as being called a “net detriment” as well as subjected to further disparaging remarks about his condition, before ultimately being dismissed. This led to the Claimant experiencing anxiety and stress.  Legal Findings  The Claimant succeeded in the following claims:  <ol class="wp-block-list"> <li>Discrimination arising from disability (section 15 Equality Act 2010)</li>  <li>Failure to make reasonable adjustments (section 20 and 21)</li>  <li>Harassment related to disability (section 26)</li> </ol>  Employment Judge Rayner found in favour of the Claimant, concluding that the Respondent’s cumulative failures in their legal duties amounted to unlawful treatment. She remarked that even subtle behaviours can carry serious weight, stating: “Reactions from others, verbally or as a gesture, can have a damning effect on self-esteem and anxiety.” [167]  The Respondent argued that the manager’s behaviour was caused by significant work-related stress and pressure, and they were unaware of the Claimant’s ADHD diagnosis until after his sick leave. The Tribunal was unconvinced of this, and although acknowledged that the manager’s stress was a “genuine source of pressure and frustration” [634] following the Claimant’s performance issues, the Judge concluded it did “not excuse [his] behaviour or treatment of the Claimant.”  Moreover, The Tribunal criticised the Respondent for missing multiple opportunities to constructively intervene, having failed to investigate the underlying causes of the Claimant’s performance issues or provide support before and after his diagnosis through implementing measures to address the issues: “Had the Respondent taken steps to identify adjustments required for the Claimant at an earlier stage and provided both him and the project lead with necessary support it is entirely possible that [his manager] would not have himself suffered with such work pressure and it is possible therefore that this discrimination would have been avoided.” [634]  Commentary: A Shift in the Legal Landscape  This decision has far-reaching implications for employers by establishing that harassment and/or discriminatory conduct is not limited to overtly hostile remarks or discriminatory policies; it can also manifest through tone, gestures, and body language. In environments where neurodivergent employees may already feel under pressure to mask or compensate for their differences, subtle non-verbal cues from colleagues or managers can have a disproportionate impact.  The ruling expands the definition of harassment to include non-verbal expressions that can be perceived as offensive or creating a hostile work environment. Employers are now expected to be more aware of subtle behaviours and their impact on employees with protected characteristics. This may be through additional training to recognise how their conduct, including body language, can be perceived, as well as proactively assess whether performance concerns may stem from unaddressed disabilities. This coincides with new <a href="https://www.acas.org.uk/neurodiversity-at-work/making-your-organisation-neuroinclusive">ACAS guidance about making the workplace more neuroinclusive</a>. The ruling reinforces that building an inclusive workplace means creating an environment where all employees feel respected, supported, and free from hostility, however subtle its expression.  The Claimant’s compensation is to be determined at a future hearing.

Pathfinder Launch – 16th May 2025

<ol class="wp-block-list"> <li>This handout provides a practical summary of the Pathfinder model which will commence for all cases issued from the 3rd of June 2025 in West Yorkshire (Leeds, Bradford and Huddersfield). This handout is aimed to help barristers, solicitors, and all professionals involved in private family law.</li> </ol>  What will Pathfinder mean?  <ul class="wp-block-list"> <li>Pathfinder’s commencement from 3rd June will in West Yorkshire mean an end to the existing Child Arrangements Programme (CAP) until at least March 2026 and, if it goes onto be permanently implemented, forever.</li>  <li>The rules and guidance are set out in: <a href="https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/new-practice-direction-36z-pilot-scheme-private-law-reform-investigative-approach">https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/new-practice-direction-36z-pilot-scheme-private-law-reform-investigative-approach</a></li>  <li>The intention is that Judges will adopt a proactive, inquisitorial approach, often referred to as a 'lean in' model. This problem-solving approach will be familiar to many as mirroring that adopted in the well-established FDAC courts. That approach will be at the forefront of the court's mind in dealing with private law applications under the pilot. Where cases are allocated (at GK1 and GK2 Gatekeeping hearings) to the adjudication track and listed for a determination hearing, the expectation is that the parties will engage the problem solving approach and avoid an adversarial approach to the litigation that sadly became all too familiar under CAP. Beginning this with Judge led conciliation before any submissions is a significant feature of the adjudication track and the problem-solving approach. It is not like the conciliation that takes place at a FHDRA. It is informed by the CIR and the IDVA service where domestic abuse is a feature of the case. Those assessments allow the court to take an evidence-based approach to problem solving and helping the parties to reach agreement.</li>  <li>That judge led conciliation is recorded as an essential component of the decision hearing in the Gatekeeping order and is ordered to take place before submissions or evidence is heard in the anticipation that settlement is possible. </li>  <li>Experience in the early pilot areas establishes that it is effective on refocusing the parties on the children and their welfare and what is achievable within the life of the proceedings. It is also worth noting that by virtue of FPR 2010 Rule 1.4(g) it has for quite some time already been part of the court's duty to help the parties settle the whole or part of the case.</li>  <li>In each case allocated at Gatekeeping to the adjudication track a single Child Impact Report (CIRs) is ordered and prepared by CAFCASS. The CIR replaces safeguarding letters and Section 7 reports, the idea is that this is placing the child’s voice at the forefront of proceedings.</li>  <li>The Pathfinder process begins when an application (C100 or C1A) is issued.</li>  <li>The court reviews the application and sends an order to Cafcass (Day 1).</li>  <li>Safeguarding checks are requested and completed within seven working days.</li>  <li>The case is allocated to a Family Court Adviser. The level of intervention is decided and reviewed by a Cafcass manager.</li>  <li>If a full assessment is required, the FCA completes a Child Impact Report within 40 working days, minus the seven used for screening.</li>  <li>Children are seen (if it is decided it’s a good idea) in person within 15 working days from allocation. In pilots elsewhere 67% of children were seen (compared to just 30% of children under the CAP being seen at any stage)</li>  <li>The child’s views and their views on the recommendations appear early in the CIR. CIRs provide recommendations upfront, with consent, photographs. CIRs differ from Section 7 reports by beginning with the child’s lived experience, not parental narratives. safeguarding, agency input, and direct work findings are integrated into one report. The focus is analytical, with less emphasis on conflicting narratives.</li>  <li>In cases where domestic abuse is a feature, IDFIS (Independent Domestic Violence and Family Support) workers support those who say this is a feature during proceedings. They provide Cafcass with structured assessments and insights into what they have called ‘primary victim dynamics.</li>  <li>The theory is that these front-loaded assessments enable faster and better-informed decisions.</li>  <li>The need for any Fact-finding hearings is reduced due to early risk identification and intervention.</li>  <li>The CIR informs the Decision Hearing. This Decision Hearing replaces the traditional First Hearing Dispute Resolution Appointment (FHDRA). The intention is that Final orders can be made or further directions given at that Decision Hearing. NB the intention is that this Decision Hearing is – just as it sounds - in many cases the one and only hearing – so one at which a Final Order maybe made</li>  <li>Until Pathfinder has ‘bedded in ‘practitioners should be alerted to risks inherent in how CIRs are prepared – for example where a child is interviewed at the resident parent's home, especially if that parent is present or nearby. The setting may influence the child's responses due to perceived pressure, loyalty conflicts, or coaching. Best practice recommends conducting interviews in neutral settings and without the resident parent present, using open-ended and non-leading questions but there is no guidance currently published suggesting that these interviews are conducted neutrally so it maybe that they are not.</li> </ul>  The Pilot findings  <ul class="wp-block-list"> <li>In other areas where the pilot schemes have operated the average case conclusion time under Pathfinder was 16 weeks, compared to 67 weeks under CAP. There are no reported statistics yet of what proportion of those cases ended with one parent having no contact or any other statistics on outcome yet available.</li>  <li>Only 1–2 fact-finding hearings were listed per area during the pilot quarter.</li>  <li>It is suggested that Children participate earlier and more meaningfully in proceedings under Pathfinder.</li>  <li>As there are fewer hearings, it’s important to understand that this first ever hearing may well also be the last and so it is essential to make it count – judge led conciliation is intended to settle the case, if it doesn’t then submissions should be far more focused on the intended result and child-centred. Representatives and their Clients should be prepared for early child engagement and potential judicial conversations leading to a final order at this first ‘Decision’ hearing.</li> </ul>  Have there already been appeals in Pathfinder cases in earlier pilot areas?  <ul class="wp-block-list"> <li>Re A and B Neutral Citation Number: [2024] EWFC 284 (B)/ <a href="https://www.bailii.org/ew/cases/EWFC/OJ/2024/284.html">https://www.bailii.org/ew/cases/EWFC/OJ/2024/284.html</a> was a case decided in Wales ( where Pathfinder started on 29th April 2024) the issue was whether the children should go to a school in Wales or in England .</li>  <li>The order appealed was against a decision of the lay justices ordering the children to attend a school not recommended in the Child Impact Report (CIR). Procedural and analytical failures in handling a Pathfinder adjudication track case were identified.CIRs under Pathfinder are not s.7 reports but carry substantial evidential weight and they are usually the primary welfare evidence in Pathfinder adjudication track cases. Courts must not disregard a CIR without clear, reasoned justification. Effectively -A CIR recommendation should be followed unless a “good reason” for departure is clearly stated and supported by evidence. In this case no reasons were given for departure from that recommendation. Further, the welfare checklist (Children Act 1989, s1(3)) must be actively considered. Lay justices in this case failed to analyse or balance the children’s differing views, or the practical impact on each parent. Courts should either expressly or clearly implicitly address the welfare checklist when determining outcomes.</li> </ul>   Procedural Fairness and the CIR Author  <ul class="wp-block-list"> <li>A further issue in the case was that the father’s solicitor unilaterally contacted the Cafcass officer with questions post-GK2, without court permission or prior disclosure to mother. The response was disclosed only on the morning of the hearing. Parties must not bypass case management directions. Any challenge to the CIR must be: Made within 7 days of GK2 by applying to vary the order, and the party either seeks the officer’s attendance, or requests permission to pose written questions.</li> </ul>  Judge-Led Conciliation Is Mandatory in the Adjudication Track  <ul class="wp-block-list"> <li>The most important failing however in this case was the failure to have judge led conciliation which the adjudication track requires before submissions or evidence. In this case, it was entirely missed, undermining Pathfinder’s problem-solving ethos.</li> </ul>  Practice Point:  <ul class="wp-block-list"> <li>Parties and judges must ensure conciliation takes place, unless it is considered inappropriate after submissions; and that decision is clearly recorded with reasons.</li> </ul>   GK2 Orders and Variation Rights  <ul class="wp-block-list"> <li>GK2 hearings are conducted by the court on paper. The order:<ul><li>Sets the track (e.g., adjudication),</li></ul><ul><li>Limits evidence,</li></ul> <ul class="wp-block-list"> <li>States whether the Cafcass officer will attend.</li> </ul> </li>  <li>Parties have a 7-day right (under FPR r.4.3) to apply to vary a GK2 order.</li>  <li>Practitioners must advise clients of this right, especially where evidence may need expanding.</li> </ul>  Departure from CIR Requires Active Judicial Engagement  <ul class="wp-block-list"> <li>Judges must not just identify perceived flaws in the CIR—they must:<ul><li>Resolve evidential disputes themselves,</li></ul><ul><li>Fill gaps using available parental evidence, or</li></ul> <ul class="wp-block-list"> <li>Seek further input where necessary.</li> </ul> </li> </ul>  A court cannot substitute analysis without clearly showing how it reached its conclusion.  Pathfinder encourages: Problem-solving, non-adversarial approach, Front-loaded investigation via CIR, Avoidance of escalation into contested residence litigation. All professionals must work to reduce conflict and avoid missing procedural steps that can widen disputes and increase harm to children.  Is there a viable alternative to Pathfinder in a Private Law Children case?  <ul class="wp-block-list"> <li>Time will tell how Pathfinder fits in West Yorkshire. Non court based dispute resolution (NCDR) offers alternatives to Pathfinder such as mediation or arbitration or both together – med-arb where mediation resolves as much as possible with an arbitrator then making a decision on the matters that remain in issue.</li>  <li>For a fully reasoned judgment in any dispute over for example - live with/spend time, relocation, choice of school cases, specific issue order - the alternative to court under Pathfinder is to refer the case to an arbitrator or  ‘private judge’ for a binding and reasoned decision by Arbitration . Referral is under the Children Scheme to the Institute of Family Law Arbitrators ( IFLA) for Arbitration: <a href="https://ifla.org.uk">https://ifla.org.uk</a>  <a href="https://ifla.org.uk/search-for-an-arbitrator/">https://ifla.org.uk/search-for-an-arbitrator/</a></li>  <li>The equivalent of an indication by way of private FDR in a children case may also be a prudent move – ‘Early Neutral Evaluation ‘– involves consideration and indication on the merits of a case by an experienced barrister or solicitor pre-issue so there is a realistic view of the outcome.</li>  <li>For further information about any of the above please contact <a href="mailto:Julia.Nelson@parklaneplowden.co.uk">Julia.Nelson@parklaneplowden.co.uk</a></li> </ul>

“Putting Grindleford on the Map”

Case Note: Bevan v Ministry of Defence [2025] EWHC 1145 (KB) | Jim Hester and Georgia Banks, Counsel for the Defendant  Citation: [2025] EWHC 1145 (KB) Court: High Court (King’s Bench Division), Manchester District Registry Judge: His Honour Judge Bird, sitting as a Judge of the High Court Date of Judgment: 14 May 2025  The full Judgment can be read here:  <a href="https://caselaw.nationalarchives.gov.uk/ewhc/kb/2025/1145" target="_blank" rel="noreferrer noopener">https://caselaw.nationalarchives.gov.uk/ewhc/kb/2025/1145</a>  <a href="https://www.bailii.org/ew/cases/EWHC/KB/2025/1145.pdf" target="_blank" rel="noreferrer noopener">https://www.bailii.org/ew/cases/EWHC/KB/2025/1145.pdf</a>  <h4 class="wp-block-heading">Overview</h4>  In Bevan v Ministry of Defence, Jim Hester and Georgia Banks were instructed by the Defendant in a claim for noise-related injury, valued by the Claimant at over £530,000.  Though experts in 3 disciplines were cross-examined over the course of the 5-day trial, the case turned primarily on the ENT evidence.  The case provides insight into claims involving alleged ‘acoustic shock’.  The claim arose from noise exposure from military vehicle and headset use.   The claim was dismissed following careful analysis of potential mechanisms of causation.  The Court concluded that the Claimant’s tinnitus and asserted psychological injury were not attributable to the conceded breach of duty. In so finding, the Court applied the Grindleford Criteria, the only extant peer-reviewed diagnostic framework for acoustic shock and found that key criteria were not met.   <h4 class="wp-block-heading">Factual Background </h4>  Mr Bevan served in the Household Cavalry Regiment and was involved from 2017 to 2020 in testing Ajax armoured vehicles at General Dynamics in Merthyr Tydfil. During this period, he wore a headset in his right ear, programmed to relay communications and alarms. His case was that prolonged exposure to repeated alarm signals, particularly the CBRN alarm, caused him to develop tinnitus and associated psychological injury.  While breach of duty was admitted by the MoD, causation and quantum were in dispute. Notably, the claim underwent an evolution: it began as a noise-induced hearing loss (NIHL) case, but by trial was premised on acoustic shock.   <h4 class="wp-block-heading">Medical Expert Evidence - Causation</h4>  The Court accepted that a mechanism of injury was required to prove causation:   ‘…hearing loss and tinnitus can (and often do) occur without any injury or fault at all. The cause of these issues may be very difficult to identify. The ENT experts agree that “a significant number of individuals with hearing loss/ tinnitus never have an underlying cause diagnosed, even with the very best investigation.”’   Three mechanisms as to causation were considered:  <ol class="wp-block-list"> <li>NIHL was ruled out. The experts agreed that audiometric evidence did not disclose the configuration required to meet the diagnostic criteria set out in Coles, Lutman and Buffin (2000). There was no high-frequency ‘notch’ or ‘bulge’, and no argument to the contrary was advanced at trial.</li>  <li>Acoustic trauma was also excluded. There was no evidence of a single, acoustic event which was sufficiently loud to meet that diagnosis.</li>  <li>Acoustic shock was the only remaining possibility. However, it had not been referred to during proceedings until only a few weeks before trial. </li> </ol>  The only papers available to the court which referenced acoustic shock were those written by Parker et al (2014<a href="https://www.jimhester.me/news/putting-grindleford-on-the-map#_ftn1">[1]</a> and 2020<a href="https://www.jimhester.me/news/putting-grindleford-on-the-map#_ftn2">[2]</a>).    One of the authors of these papers, Mr Andrew J Parker, was the ENT expert for the Defendant in this case.   Mr Parker had also been the ENT expert instructed (on that occasion by the successful claimant) in Royal Opera House Covent Garden Foundation v Goldscheider [2019] EWCA Civ 711.   The Parker 2020 paper advance the ‘Grindleford Criteria’ as an objective method when considering a diagnosis of acoustic shock.  These are the only known criteria for diagnosis of acoustic shock.   Importantly, these criteria were accepted by the court in Bevan, and so the court considered the case against these guidelines.   <h4 class="wp-block-heading">The Grindleford Criteria and their Application </h4>  The Grindleford Criteria comprise four core elements (G1 - G4):  <figure class="wp-block-table"><table class="has-fixed-layout"><thead><tr><td>Criterion</td><td>Requirement</td><td>Court’s Finding</td></tr></thead><tbody><tr><td>G1</td><td>A defined acoustic incident</td><td>Not satisfied – Exposure described was repetitive and generalised. There was no discrete incident sufficient to engage the test.</td></tr><tr><td>G2</td><td>Symptoms commencing immediately or shortly after the incident</td><td>Not satisfied – The court found that the onset of tinnitus occurred about 2 – 4 months after exposure ended.</td></tr><tr><td>G3</td><td>Symptoms exceeding normal physiological or startle responses</td><td>Satisfied – The experts agreed that the Claimant’s tinnitus could meet this threshold.</td></tr><tr><td>G4</td><td>Symptoms arising from the exposed ear(s)</td><td>Not satisfied – The Claimant ‘s tinnitus was bilateral. However, the exposure which the Claimant’s expert considered may have caused the acoustic shock was exclusively right-sided. Bilateral symptoms were inconsistent with such exposure unless the tinnitus was of sufficient magnitude – which the court found it was not.</td></tr></tbody></table></figure>  The criteria also note that there may be significant psychological overlay or relationship to illness behaviour.  The failure to meet G1, G2 and G4 was, therefore, fatal to the acoustic shock claim.  The Court accepted Mr Parker’s evidence that a qualifying event under G1 must be “memorable… enough to produce a startle and a shock”. None was identified.  Further, G2 requires at least some symptoms temporally proximate to the identified event, even if full manifestation is delayed.  Again, this feature was missing in the case.  On G4, the Claimant's tinnitus was bilateral. As Mr Parker explained, this would only be consistent with right-sided acoustic shock if the tinnitus were catastrophic or at the top-end of severe, which the court accepted it was not.  Absent a physical acoustic injury, the psychological sequelae could not be causally linked to the previous noise exposure.  <h4 class="wp-block-heading">Conclusion</h4>  The Court concluded:  <ul class="wp-block-list"> <li>The Claimant did not suffer acoustic shock, NIHL, or acoustic trauma.</li>  <li>His tinnitus began after the exposure period and so could not be attributed to it in any event.</li>  <li>The subsequent conversion disorder was not caused by the Defendant’s breach.</li>  <li>The claim was accordingly dismissed.</li> </ul>  The Judgment makes clear that while acoustic shock may be a real clinical entity, its diagnosis requires rigorous and structured analysis and that the Grindleford Criteria offer the appropriate method for that assessment. Generalised or ambient noise exposure, however persistent, will not suffice without a defined event, temporal proximity, and lateral consistency.  <h4 class="wp-block-heading">Key Practice Points</h4>  <ul class="wp-block-list"> <li>The Grindleford Criteria are likely to become the standard means of assessing acoustic shock claims.</li>  <li>Absent a provable mechanism for injury, the fact that there had been negligent exposure and that there was an ENT-related condition is insufficient for causation to be made out. </li> </ul>  It should be noted that the Claimant sought permission to appeal from the trial judge, which was refused.  The Claimant indicated that an application for such permission will be renewed at the Court of Appeal.   <a href="https://www.jimhester.me/news/putting-grindleford-on-the-map#_ftnref1">[1]</a> William Parker, Victoria Parker, Glynn Parker & Andrew Parker (2014) ‘Acoustic shock’: A new occupational disease? Observations from clinical and medico-legal practice, International Journal of Audiology, 53:10, 764-769, DOI:10.3109/14992027.2014.943847  <a href="https://www.jimhester.me/news/putting-grindleford-on-the-map#_ftnref2">[2]</a>Parker, W. A. E., Parker, V. L., Parker, G., & Parker, A. J. (2020). Acoustic shock: an update review. The Journal of Laryngology & Otology, 134(10), 861–865. https://doi.org/10.1017/S0022215120001991

Police, Misadventure, and the Limits of Article 2: R (Robinson) v HM Assistant Coroner for Blackpool & Fylde [2025] EWHC 781 (Admin)

Introduction  The High Court has provided important clarification on the circumstances in which Article 2 of the ECHR is automatically engaged following a death involving police contact.  The Court’s analysis has significant implications for future inquests where the boundaries of “state responsibility” are in issue.  Factual Background  On 11 March 2021, Mr Robinson was stopped by armed police officers in Blackpool.  After a car chase, he exited the vehicle and was restrained on the ground.  During the course of the restraint, he placed a plastic-wrapped package (later identified as containing drugs) into his mouth.  Officers attempted to prevent this, but the package became lodged in Mr Robinson’s throat and he quickly became unresponsive.  Officers started CPR and paramedics arrived promptly, but despite efforts to resuscitate him, Mr Robinson was pronounced dead.  A post-mortem determined that the cause of death was upper airway obstruction due to the package in his throat.  At the inquest, the coroner had deferred the decision as to whether Article 2 was engaged until after the evidence had been heard.  Following the evidence, the coroner declined to engage Article 2. The jury returned a short form conclusion of misadventure.  The coroner also wrote a “letter of concern” to the National College of Policing to address issues around the training of officers around the removal of drug packages.  No Prevention of Future Deaths (PFD) report was made.  The family sought judicial review on 3 grounds:  <ol class="wp-block-list"> <li>The decision that Article 2 was not engaged.</li>  <li>The coroner’s summing up to the jury was insufficient.</li>  <li>The failure to issue a PFD report.</li> </ol>  First Ground: Article 2  The Applicant submitted that the procedural obligation under Article 2 was automatically triggered and that the coroner had erred in finding otherwise.  The argument was twofold:  Firstly, that the case fell within a category where Article 2 is engaged automatically.  Secondly, in any event, there was an arguable breach of the state’s positive operational duty to protect life.  It was contended that the categories of case where Article 2 is engaged automatically are not closed.  The Applicant proposed that the following categories should be recognised as giving rise to automatic engagement:  <ul class="wp-block-list"> <li>An unnatural death occurring while in the involuntary (lawful or unlawful) custody or control of the state.</li> </ul>  <ul class="wp-block-list"> <li>An unnatural death following the deceased committing an intentional act liable to cause himself harm in the presence or control of the police.</li> </ul>  <ul class="wp-block-list"> <li>A death where police are aware that the person has swallowed a package posing a risk to life.</li> </ul>  <ul class="wp-block-list"> <li>A death in custody or control where the person enters a medical emergency of which police were or should have been aware.</li> </ul>  <ul class="wp-block-list"> <li>A death following the use of force by police in the course of an arrest or physical control.</li> </ul>  The Applicant argued that Mr Robinson’s death clearly fell within one or more of these expanded categories.  Furthermore, it was submitted that the police knew or ought to have known that Mr Robinson was at real and immediate risk of death, thereby triggering the positive operational duty under Article 2.  Conclusion  Mr Justice Kerr rejected the Applicant’s submissions and reaffirmed the orthodox position that the categories of automatic Article 2 engagement remain limited and are not lightly extended.  The Court accepted the approach in Morahan [2022] EWCA Civ 1410, quoting Popplewell LJ in that the circumstances of the death must be such that:  “They fall into a category which necessarily gives rise, in every case falling within the category, to a legitimate ground to suspect state responsibility by way of breach of a substantive article 2 obligation” (Morahan at [122(7)]).  Mr Justice Kerr found that the proposed new categories advanced by the Applicant lacked a sufficient degree of certainty or inevitability to justify automatic engagement.  While Mr Robinson had been under a degree of physical restraint, he was not in “custody or detention” in the relevant Article 2 sense.  In relation to the operational duty, the Court found that the coroner had correctly considered whether there was an arguable breach of the duty to protect Mr Robinson’s life.  However, the coroner had considered the evidence, particularly the officers' rapid response and the provision of first aid and concluded that no such arguable breach had occurred.  The Judge held that this reasoning was legally sound and open to the coroner on the evidence.  Second Ground: Coroner’s Summing Up  The Applicant argued that the coroner’s summing up failed to adequately guide the jury on key issues.  In particular, in relation to the police’s conduct during the restraint and the timing of medical interventions.  Conclusion  The High Court rejected these criticisms.  Mr Justice Kerr held that the summing up, while brief, was fair and legally sufficient.  The jury had seen all the relevant evidence and were repeatedly reminded that they were the judges of fact.  The coroner’s directions were not biased or flawed, and the jury’s preference for misadventure verdict reflected their own view of the facts, not flaws of the directions given.  Third Ground: PFD Report  The Applicant argued that the coroner’s decision to send a “letter of concern” instead of a PFD effectively avoided the statutory reporting regime in favour of an informal mechanism.  Reliance was placed on the Chief Coroner’s Revised Guidance No.5. which stressed that the “concern” threshold is low.  Conclusion  The coroner’s refusal to issue a PFD report was upheld.  Mr Justice Kerr found that the statutory duty only arises where the coroner forms the view that both a risk of future deaths exists and that actions should be taken to prevent them.  Although the coroner recognized the risk and sent a “letter of concern” he had found that there was no sufficient basis to believe that action was required to prevent future deaths.  Mr Justice Kerr found no legal error in the coroner’s reasoning or decision.  It was emphasised that this is a matter of discretion for the coroner, not an obligation.  Commentary  This case affirms the narrowness of the circumstances in which Article 2 is automatically engaged in the context of deaths involving police contact, particularly outside formal detention settings.  The Court reaffirmed that the existing categories of automatic engagement are intentionally limited.  Expansion requires a clear and necessary link between the factual category and the likelihood of state responsibility.  The judgment also clarifies the threshold for the operational duty it is not enough that there was some general risk.  The officers must have known (or ought to have known) of a real and immediate risk to life and failed to take reasonable steps to avoid it.  Notably, the case demonstrates the reluctance to conflate police presence or control with detention in the absence of formal arrest or custodial status.

15th July 2025 | PLP Employment Grandstand Seminar

Join our specialist barristers at the PLP Employment Grandstand Seminar, Calculating Justice - Employment Remedies Masterclass to be held at the Hilton, Leeds City on Tuesday 15th July 2025.  The price per delegate is £50.00 + VAT to include lunch, refreshments and networking drinks reception.  Registration is at 12:45, lunch and refreshments will be served from 13.00, with speakers starting at 14:00. Guests will then be welcome to join us for networking and a drinks reception following the talk.  Programme  12:45 - 13:00: Registration 13:00 - 14:00: Lunch 14:00 - 14:45: <a href="https://www.parklaneplowden.co.uk/our-barristers/david-reade-kc/">David Reade KC</a> - The interrelationship between claims in the Tribunal and the Civil Courts 14:45 - 15:30: <a href="https://www.parklaneplowden.co.uk/our-barristers/sophie-firth/">Sophie Firth</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/robert-dunn/">Robert Dunn</a> - From Verdict to Value: Practical Considerations for Remedy Hearings 15:30 - 15:45: Coffee break 15:45 - 16:30: <a href="https://www.parklaneplowden.co.uk/our-barristers/claire-millns/">Claire Millns</a> - From Distress to Damages: Injury to Feelings, Personal Injury, and Aggravated damages 16:30 - 17:15: <a href="https://www.parklaneplowden.co.uk/our-barristers/andrew-sugarman/">Andrew Sugarman</a> - Pension Loss Demystified: Principles, Pitfalls and Practicalities. 17:15 - 17:45: Q&A with all speakers 17:45 - 19:00: Networking  If you would like to join us, please contact <a href="mailto:emma.frazer@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">Emma Frazer</a> to reserve your place.

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24 June 2025

North Eastern Circuit Women’s Forum Event in Newcastle – Women at the Bar and the Bench

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