Victoria Steele, Author at Parklane Plowden

Expertise

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Parklane Plowden Shortlisted at the Modern Claims Awards 2024

Parklane Plowden Chambers are shortlisted for the Diversity Award at the Modern Claims Awards 2024!  Last year, PLP were highly commended in this category.  The awards ceremony will take place on the 18 April 2024. The full shortlist can be found <a href="https://www.modernclaimsawards.com/2024shortlist">here</a>.  Congratulations to everyone shortlisted.

Women’s Forum Event: International Women’s Day 2024

Last night, Parklane Plowden hosted the North Eastern Circuit Women's Forum event to celebrate International Women's Day at Portland House in Newcastle. The event was co-sponsored by New Park Court Chambers. Charing the event was Kama Melly KC joined by vice chairs, <a href="https://www.parklaneplowden.co.uk/our-barristers/leila-benyounes/">Leila Benyounes</a> and Chloe Hudson.  Attendees heard from the panel of speakers, HHJ Clemitson, HHJ Moreland and <a href="https://www.parklaneplowden.co.uk/our-barristers/elizabeth-hodgson/">Elizabeth Hodgson </a>sharing their experiences and guidance.  This year the theme for International Women's Day is Inspire Inclusion.  <figure class="wp-block-image size-large is-resized"><img src="https://www.parklaneplowden.co.uk/app/uploads/2024/03/WhatsApp-Image-2024-03-06-at-12.26.12-1-1024x1024.jpeg" alt="" class="wp-image-9508" style="width:600px;height:auto"/></figure>

Rule 50 in the spotlight: privacy in the Employment Tribunal – a recent case and some practical tips

The key provisions in brief  Rule 50  Under r50:  “(1) A Tribunal may at any stage of the proceedings, on its own initiative or on application, make an order with a view to preventing or restricting the public disclosure of any aspect of those proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person or in the circumstances identified in section 10A of the Employment Tribunals Act.  (2) In considering whether to make an order under this rule, the Tribunal shall give full weight to the principle of open justice and to the Convention right to freedom of expression.”  R50(3) contains a list of illustrative orders the Tribunal may make. That includes:  <ul> <li>R50(3)(a) – An order that a hearing, or part of a hearing be held in private.</li>  <li>R50(3)(b) – Anonymisation orders applying to parties, witnesses, or other people referred to in proceedings. Anonymisation can relate to the course of the hearing, in the list, and/or any documents forming part of the public record, such as the judgment or reasons.</li>  <li>R50(3)(c) – An order for measures preventing witnesses at a public hearing being identifiable by members of the public, such as screens.</li>  <li>R50(3)(d) – A restricted reporting order (“RRO”) within the terms of s11 or 12 of the Employment Tribunals Act 1996 (“ETA”). Respectively, these sections relate to sexual misconduct/offences and disability (see below).</li> </ul>  Under r50(5), an RRO must meet certain requirements:  “(a) it shall specify the person whose identity is protected; and may specify particular matters of which publication is prohibited as likely to lead to that person’s identification;  (b) it shall specify the duration of the order;  (c) the Tribunal shall ensure that a notice of the fact that such an order has been made in relation to those proceedings is displayed on the notice board of the Tribunal with any list of the proceedings taking place before the Tribunal, and on the door of the room in which the proceedings affected by the order are taking place; and  (d) the Tribunal may order that it applies also to any other proceedings being heard as part of the same hearing.”  S10 ETA  The Tribunal can be invited to sit in private to hear evidence which is likely to consist of information which:  <ul> <li>Has been communicated or received in confidence.</li>  <li>Would cause substantial injury to the Respondent.</li> </ul>  S11 ETA  In cases involving allegations of the commission of sexual offences, s11 ETA (read with r50) enables the Tribunal to grant anonymity to those affected by or making an allegation of the commission of sexual offences.  In cases involving allegations of sexual misconduct, it enables the Tribunal to make an RRO having effect until promulgation of its decision, unless it is revoked earlier.  Sexual misconduct means “the commission of a sexual offence, sexual harassment or other adverse conduct (of whatever nature) related to sex, and conduct is related to sex whether the relationship with sex lies in the character of the conduct or in its having reference to the sex or sexual orientation of the person at whom the conduct is directed”.  Sexual offence means any offence to which certain statutory provisions, including SO(A)A apply.  The RRO should prevent the reporting of any matter likely to lead members of the public to identify the person affected by (i.e. the alleged perpetrator), or the person making (i.e. the complainant), the allegation.  S12 ETA  In a “complaint which relates to disability in which evidence of a personal nature is likely to be heard”, s12 ETA (read with r50) enables the Tribunal to make an RRO having effect until promulgation of its decision, unless it is revoked earlier.  Evidence of a personal nature means “any evidence of a medical, or other intimate, nature which might reasonably be assumed to be likely to cause significant embarrassment to the complainant if reported”.  Sexual Offences (Amendment) Act 1992 (“SO(A)A”)  S1 grants lifelong anonymity to those alleging commission of sexual offences:  “(1) Where an allegation has been made that an offence to which this Act applies has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed.  (2) Where a person is accused of an offence to which this Act applies, no matter likely to lead members of the public to identify a person as the person against whom the offence is alleged to have been committed (“the complainant”) shall during the complainant’s lifetime be included in any publication.”  Accused means charged with an offence.  No such protection is extended to alleged perpetrators, by virtue of their status alone. However, cases of ‘jigsaw identification’ – where revealing the identity of the perpetrator would be likely to lead to identify the person making the allegation – may necessitate an order being sought in relation to the alleged perpetrator under s1.  Z v Commerzbank AG [2024] EAT 11  Facts  The Claimant made discrimination allegations and alleged that a female colleague, Q, had sexually harassed and sexually assaulted him. After he was dismissed by Commerzbank, he brought a claim against it and other Respondents, including Q.  First instance  On application, restricted reporting and anonymity orders were made in respect of the Claimant and Q.  In relation to the Claimant, the Judge found that he was protected for life by operation of s1 of the SO(A)A. In respect of the anonymity order, she decided to make the same order in the interests of justice under r50(3)(b) to give effect to the SO(A)A. She also made a restricted reporting order (“RRO”) of indefinite duration under r50(3)(d). She considered freedom of expression under art 10 but held that it was proportionate to protect the Claimant’s art 8 right to privacy because “the test of strict necessity [in r50] is satisfied in the case of a victim of an alleged sexual offence”.  In relation to Q (and her husband), who did not enjoy the protection of SO(A)A, similar orders were made, but of limited duration until the promulgation of the liability judgment. The Judge referred to art 10 but found it was outweighed by Q’s art 8 rights. She held that post-promulgation restrictions fall outside the statutory exception in s11 ETA.  At the liability hearing, the Tribunal concluded that the Claimant’s account was false and made up. It dismissed all his claims.  The Respondents applied to lift the anonymity order and RRO (“the privacy orders”) in respect of the Claimant, and to extend them in relation to Q.  In respect of Q, the privacy orders were varied to have indefinite effect. Whilst not the subject of any appeal, Mr Justice Kerr expressed discomfort that the orders had no sunset or lapsing provision requiring a conscious decision to extend the duration of the order periodically.  In respect of the Claimant, the Tribunal revoked the privacy orders, subject to a temporary stay for any appeal. It referred to Mr Justice Soole’s decision in A v X UKEAT/0113/18, noting that there appears to be no direct authority on whether and if so how the Tribunal should give effect to the SO(A)(A).  The Tribunal concluded that there had been a material change of circumstances sufficient to enable the Tribunal to consider revoking the privacy orders:  “The exceedingly serious allegations on which the Claimant based his application for anonymity have been considered, comprehensively dismissed and found to be false and, in large part, made up. The foundation on which EJ Brown necessarily approached the application, namely that the Claimant was relying on sincere allegations advanced in good faith, has been exploded.”  The power to make the order lay under r50, not SO(A)A, and the power to revoke it under r29. The correct approach was to exercise its case management powers under r29 “in keeping with the spirit and intention” of SO(A)A. That involved recognising that protection under the SO(A)A is automatic and in principle permanent. The rationale being to avoid discouraging victims from making complaints for fear of distressing publicity. However, the Employment Tribunals Rules of Procedure enable the Tribunal to remove or relax that protection in special circumstances:  “We simply cannot accept that the law is powerless to separate the Claimant from a protection to which, as is now apparent, he was never entitled. It is to us unthinkable that our procedural law, founded on the overriding objective of deciding cases justly, could contemplate such a bizarre and unjust result.”  It went on to consider the balancing exercise of competing interests and concluded that art 10 clearly outweighed art 8:  “His is a most unusual story and we can well see why it would be of considerable interest to the press and the public. His identity would be a matter of legitimate interest given the Tribunal's findings, in the way that Q's would not. Against the interests of open justice and freedom of interest, we see no countervailing argument based on the Claimant's Convention rights. If, as we have held, he did not have a sustainable right to litigate anonymously, it cannot be said that his right to respect for his private life would be violated as a consequence of the anonymity being lost.”  Appeal  The Claimant appealed the revocation of the anonymity order and RRO.  Mr Justice Kerr identified four strands of authority: the common law; art 8; SO(A)A and ETA read together with r50. He described this as a “complex interaction”.  There was no dispute between the parties regarding the principle of open justice and derogations from it applying the common law or art 8, balanced against art 10. There are many authorities dealing with this balancing exercise.  He noted that:  <ul> <li>The protection of s1 SO(A)A is statutory an therefore automatic – there is no need for the trial court to make an order mirroring it.</li>  <li>By s1(4), the section does not prohibit publication of a report of a subsequent trial of the complainant for perjury or perverting the course of justice.</li>  <li>There are provisions to allow removal or relaxation of the s1 protection, but these must not be given by reason only of the outcome of the trial.</li> </ul>  Mr Justice Soole reviewed several authorities where it had been assumed that s1 SO(A)A applied to a Claimant making an allegation in the Tribunal.  He held that the words “an allegation has been made” in s1(1) SO(A)A “refer to the making of an allegation in circumstances which raise, or are intended to raise, a real possibility that a criminal charge will follow.”  Such an allegation need not be made by the alleged victim. For example, a complaint by a parent to police that their child has been sexually assaulted would trigger anonymity for the child.  He stated:  "the accurate formulation is that "allegation" in section 1(1) refers to a formal allegation made in the context of potential criminal proceedings, where a criminal charge may be brought. The paradigm case is a complaint to police. Other complaints made seriously and intended to or likely to be acted upon might be to a prosecuting authority, a safeguarding body, a social worker or social services department or other person with professional responsibility for taking the complaint further through the criminal justice system.  It follows that I do not think an ""allegation"" in section 1(1) includes, without more, an allegation made in civil, family or tribunal proceedings of conduct that, if committed, would be one of the sexual offences covered by the 1992 Act.“  The Claimant nor anyone else had made such an allegation against Q and the Judge at first instance was wrong to conclude he was entitled to the protection of the SO(A)A.  However, Mr Justice Soole commented, obiter, there will be a difficulty in other cases where the requirement in s1(1) is satisfied, for example where a serious complaint of a sexual offence has been made to police by the time the allegation of the same conduct is made in the Tribunal. In those circumstances, the only means of removing the protection of SO(A)A is in accordance with its provisions, for example if there is a subsequent trial for perjury or if a Justice of the Peace of a Crown Court Judge decides to relax the restriction.  He noted the cross reference to SO(A)A in s11(6) ETA as suggesting that parliament had in mind the possibility that the protection of SO(A)A could apply in cases where the same conduct is alleged as a criminal matter and in the Tribunal. In such cases, a privacy order would be made under r50.  The lacuna, however, is that an Employment Judge does not have the corresponding power given to a Justice of the Peace of a Crown Court Judge to remove the restriction in circumstances where the Tribunal decides a complaint is false. The solution may here lie with Parliament.  Albeit for slightly different reasons, the Tribunal at first instance was therefore correct to revoke the privacy orders in respect of the Claimant. It was “difficult to think of a more striking change of circumstances” and the art 10/art 8 balance had been struck correctly.  Some practical tips  <ul> <li>Privacy orders should be considered in any sex-related or sexual harassment claim</li>  <li>In disability-related cases they are rarer</li>  <li>The parties cannot agree to a departure from open justice – the Tribunal will not merely approve an agreed order, but will need to consider whether a derogation from open justice is necessary</li>  <li>The interests of justice and protection of a person’s Convention rights are two distinct but often overlapping grounds upon which derogation from open justice can be sought</li>  <li>The party seeking the privacy order has the burden of proving it is necessary to deviate from the principle of open justice</li>  <li>Evidence should therefore be adduced in support of such an application e.g. medical evidence if an assertion is made of risk of damage to health, evidence of any complaint to police</li>  <li>The Tribunal may need to hear witness evidence e.g. to determine whether revealing certain information could lead to jigsaw identification of a complainant</li>  <li>A draft order should be prepared to accompany the application, with thought being given to precisely what is sought e.g. Anonymity? Of whom? An RRO? For how long?</li>  <li>Applications should ideally be made at a preliminary hearing in advance of the final hearing</li>  <li>There may be consequential impacts of a privacy order on case preparation e.g. redaction, labelling of individuals by letters, preparation of one bundle for the parties and a redacted bundle for the public</li> </ul>  For a fuller discussion of this topic, join <a href="https://www.parklaneplowden.co.uk/our-barristers/bryony-clayton/">Bryony Clayton</a> at <a href="https://www.parklaneplowden.co.uk/20-march-2024-employment-grandstand-seminar-newcastle/">Parklane Plowden’s Employment Grandstand on 20 March</a> for her talk: The Limits of Open Justice: Anonymity and Privacy Issues in the Tribunal.

Cait Sweeney successful in precedent-setting appeal Nazir & Nazir -v- Begum [2024] EWHC 378

Cait Sweeney acted for the successful Respondents in an appeal, before Freedman J, regarding the operation of and the meaning of a ‘trust’ within the Land Registration Act 2002 and the effect of a registered proprietor’s death on a claim for adverse possession.  THE FACTS  The Appellants sought to appeal the first instance decision in which the Respondent was found to have obtained title to a parcel of land through adverse possession.  The basis of the Appellant’s appeal was that the first instance decision was wrong, as the Respondent could not establish the requisite 10 years of adverse possession due to the operation of the Land Registration Act 2002 (“LRA 2002”) Schedule 6, Paragraph 12 which states:  “A person is not to be regarded as being in adverse possession of an estate for the purposes of this schedule at any time when the estate is subject to a trust, unless the interests of each of the beneficiaries in the estate is an interest in possession.”  The Respondents had been in possession of the land from at least 2012 onwards. The registered proprietor of the land was the Appellant’s father, who had died in 2010. Shortly before proceedings were issued the Appellants obtained Letters of Administration. They argued that their father’s estate, which included the disputed land, was held “in trust” by them as personal representatives and as a result the Respondents could not have been in adverse possession of the land by virtue of Sch 6, Para 12 LRA 2002.  THE APPEAL  The Appellants were granted permission to appeal by Sweeting J on the basis that there was some other compelling reason for the appeal to be heard, namely:  “the uncertainty as to the effect of an administration of an estate upon a period relied upon as adverse possession”.  THE JUDGMENT  As outlined  by Freedman J, there is no precedent from the higher courts on the point raised within the appeal. However, the court concluded that the reference to “trust” within Sch 6 Para 12 LRA 2002, did not encompass a deceased individual’s estate in administration for the following reasons:  <ul> <li>There are fundamental differences between a trust and trustees (in the classic sense) and an estate in administration and personal representatives. Executors or administrators are not trustees in any usual sense of an unadministered estate. Furthermore the trust fund is by definition unidentifiable until the administration ends. The beneficiaries are likewise unknown until the administration is brought to an end by the assenting of property to those entitled.</li> </ul>  <ul> <li>If Parliament had wished to extend the ambit of the trust referred to in Sch 6 para 12  to include deceased individual’s estate, it could have done so expressly and easily by incorporating s.68 (17) of the Trustee Act 1925 into s.132 of the LRA as it had done in the Limitation Act 1980.</li> </ul>  <ul> <li>If Sch 6 para 12 were treated as extending to a deceased individual’s estate, then the exception to Sch 6 para 12 which provides “unless the interests of each of the beneficiaries in the estate is an interest in possession”  would be difficult to apply. The wording of this exception assists in the construction that beneficiaries are required as in a conventional trust, and that without that, there cannot be a trust for the purpose of Sch 6 para 12.</li> </ul>  <ul> <li> There was nothing within the Final Report of the Law Commission prepared in respect of the implementation of the LRA 2002  to suggest that Sch 6 para 12 was intended to apply to a situation where there is no ‘trust’ in the strict sense of the word recognised by equity and no possibility of a revisionary interest.</li> </ul>  It was therefore held that the effect of the death or the registered owner or the estate being in administration during the required ten year period did not operate as a bar to a claim for adverse possession.  A full copy of the judgment can be found here:  <a href="https://www.bailii.org/ew/cases/EWHC/KB/2024/378.html">https://www.bailii.org/ew/cases/EWHC/KB/2024/378.html</a>

05 March 2024 | Women’s Forum event: International Women’s Day

Parklane Plowden is delighted to be hosting the North Eastern Circuit Women's Forum event to celebrate International Women's Day at Portland House in Newcastle on 05 March 2024.  This year the theme for International Women's Day is Inspire Inclusion.  More information can be found by visiting the <a href="https://www.northeasterncircuit.co.uk/events/">North Eastern Circuit</a>.

REPLAY: Remedy Arguments and Calculations | 22 February 2024

<iframe width="560" height="315" src="https://www.youtube.com/embed/ASNJ2JMpLlU" title="YouTube video player" frameborder="0" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen=""></iframe>   Parklane Plowden's 'Law with Lunch' webinars bring you the latest law updates.  Employment specialists <a href="https://www.parklaneplowden.co.uk/our-barristers/sarah-brewis/">Sarah Brewis</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/bethan-davies/">Bethan Davies</a> discuss remedy arguments and calculations.  Click on the above video to watch the webinar recording.

07 March 2024 | Private Children Hybrid Webinar Series

Join members of our Private Children Team for the first webinar in our series of three hybrid webinars throughout the year.  The webinar will be hosted by <a href="https://www.parklaneplowden.co.uk/our-barristers/alex-taylor/">Alex Taylor</a>, discussing Presumption and Starting Points in Private Children, with <a href="https://www.parklaneplowden.co.uk/our-barristers/naakesha-michl/">Naakesha Michl</a> presenting Domestic Abuse as Justification for No Contact and / or Removing Parental Responsibility.  This hybrid webinar will take place in our Leeds Chambers and will be streamed via Zoom from 5pm. Handouts will also be circulated after the event.   If you like to register for this event, please register <a href="https://lexlinks.parklaneplowden.co.uk/doForm.aspx?a=0xF15D4A97E0E04123&d=0x49EB4C9596DBE1A5^0xBDC0B87423493533|0x40F3E49C83A12815^0xAF1BA1DD83354AE1|0xF1B146662D144B75^0x8A1CDD2DB76555E3|0x9CB58EF48012E032^0x4A69D6B455607FA8|0xA14B30AADF25AF0D^0x4538EA01547C6D9520542FC6B6F63C93|0x43D48F22BB6859DF^0x4A69D6B455607FA8|0xD52134AC788FF0FE^0xAF1BA1DD83354AE1|">here</a>.

Care Orders vs Supervision Orders for Children Placed at Home

Introduction  For the first time in many years, the Court of Appeal in 2023 looked at the type of order, if any, under which a child should be placed at home in JW (Child at Home under Care Order) [2023] EWCA Civ 944<a href="#_ftn1" id="_ftnref1">[1]</a>.  Case Law and Legal Principles  Until the Court of Appeal revisited this area in JW, the last time that the topic had been, albeit tangentially, considered by the Court was in Re DE (Child under Care Order: Injunction under Human Rights Act 1998) [2014] EWFC 6; [2018] 1 FLR 1001.  Baker J held that, unless the need to remove arises as an emergency, a local authority considering removal should give notice to the parents, who may then make an application to the court to hold the situation via either an application to discharge the care order or a HRA 1998 injunction, or both. The decision to remove a child should only be made after a ‘rigorous analysis of all of the realistic options’ (in a similar manner required by the Supreme Court in Re B [2013] UKSC 33 when adoption is being considered). Baker J set out guidance on the approach to be taken where a local authority is proposing to remove a child, who is the subject of a care order, from home at paragraph 49 of the judgment.  [28] of JW sets out a helpful summary of the statutory scheme and case law:  <ol style="list-style-type:lower-alpha"> <li>making a care order with a subject child placed at home in the care of their parent(s) is plainly permissible within the statutory scheme and express provision is made for such circumstances in CA 1989, s 22C and in the placement regulations;</li>  <li>the early post-CA 1989 authorities established that a care plan for placement at home was an appropriate outcome where the facts justified it, without the need for exceptional circumstances;</li>  <li>the analysis of Hale J/LJ in Oxfordshire and in Re O laid particular weight upon the need for the authority to have power to remove the child instantly if circumstances required it, or to plan for the child to be placed outside the family;</li>  <li>since Oxfordshire and Re O, the High Court decision in Re DE, containing guidance endorsed by the President, has been widely accepted so that, in all but a true emergency, the local authority power to remove a child from their home under a care order should not be exercised without giving parents an opportunity to bring the issue before a court;</li>  <li>the difference concerning removal of a child from home either under a care order or where there is no care order is now largely procedural. In all but the most urgent cases, the decision on removal will ultimately be taken within the umbrella of court proceedings, rather than administratively within a local authority;</li>  <li>sharing of parental responsibility by the local authority with parents is an important element, but, as Hale J/LJ stressed, the fact that considerable help and advice may be needed over a prolonged period is not a reason, in itself for making a care order;</li>  <li>it is wrong to make a care order in order to impose duties on a local authority or use it to encourage them to perform the duties that they have to a child in need;</li>  <li>the protection of the child is the decisive factor, but proportionality is key when making the choice between a care and supervision order for a child who is placed at home;</li>  <li>supervision orders should be made to work, where that is the proportionate form of order to make.</li> </ol>  President’s Public Law Working Group Guidance  In March 2021<a href="#_ftn2" id="_ftnref2">[2]</a>, the report at paragraphs 158 – 162 dealt with the making of care orders where children are placed at home. Key parts of those paragraphs are:  <ul> <li>There is a risk that the making of a care order at home provides false assurances to partner agencies because the local authority is neither involved in, nor has a thorough oversight of, the child’s day-to-day care.</li>  <li>The making of a care order should not be used as a vehicle to achieve the provision of support and services after the conclusion of proceedings. Unless a final care order is necessary for the protection of a child, an alternative means/route should be made available to provide this support and these services without the need to make a care order.</li>  <li>Supervision Orders may be appropriate, but there are concerns of their use. They have a higher (20%) risk of breakdown and return to court for further care proceedings within 5 years.</li>  <li>A final care order should not be used as a method prematurely to end proceedings within 26 weeks artificially to alleviate concerns that the children will be at continuing risk of harm. The order should only be made whether the local authority can demonstrate that the assessment of any carer of a looked after child meets the criteria of the regulations.</li>  <li>A final care order has an intrusive effect of state intervention, not only for the parents but also for the child. It can only be justified if it is necessary and proportionate to the risk of harm to the child.</li> </ul>  Appendix F of the report sets out the best practice guidance (paragraphs 34 – 37) where a care order is sought but the child is to be placed at home:  <ul> <li>There should be exceptional reasons for the court to make such an order.</li>  <li>It should not be used as a vehicle for the provision or support or services.</li>  <li>The risks of significant harm to the child are either adjudged to be such that the child should be removed from the care of her parents/carers, or some lesser legal order and regime is required. Any placement with parents under an interim or final order should be evidenced to comply with the statutory regulations for placement at home.</li>  <li>It should be considered to be rare in the extreme that the risks of significant harm to the child are judged to be sufficient to merit the making of a care order but, nevertheless, the risks can be managed with a care order being made in favour of the local authority with the child remaining in the care of the parents/carers. A care order represents a serious intervention by the state in the life of the child and in the lives of the parents in terms of their respective ECHR, article 8 rights. This can only be justified if it is necessary and proportionate to the risks of harm of the child.</li> </ul>  The PLWG in their report and recommendations placed emphasis on the need for proportionality when considering the necessity for a child placed at home under a final care order. This in turn caused the Court of Appeal in JW to find that there needs to be ‘exceptional reasons’ to justify the making of a care order for a child who is to be placed at home as a long-term care plan.  Paragraph 37 of JW is key;  ‘It should be considered to be rare in the extreme that the risks of significant harm to the child are judged to be sufficient to merit the making of a care order but, nevertheless, the risks can be managed with a care order being made in favour of the local authority with the child remaining in the care of the parents/carers. A care order represents a serious intervention by the state in the life of the child and in the lives of the parents in terms of their respective ECHR, article 8 rights. This can only be justified if it is necessary and proportionate to the risks of harm of the child.'  In April 2023 a further report was published (Recommendations to achieve best practice in the child protection and family justice systems: Supervision Orders)<a href="#_ftn3" id="_ftnref3">[3]</a>. The key provision within this report is contained with Appendix C. The key change is the expectation that, in every case where a supervision order may be made, the local authority will prepare a clear and detailed Supervision Support Plan<a href="#_ftn4" id="_ftnref4">[4]</a> which is tailored to the needs of the child. It also requires that the plan should be clear as to the provision of resources to underpin each element of the plan, and that the plan should be seen as a living instrument and be kept under formal ‘robust’ review during the life of the supervision order:  ‘In every case where a Supervision Order may be made, the local authority will prepare a clear and detailed Supervision Support Plan which is tailored to the needs of the child. The guidance also requires that the plan should be clear as to the provision of resources to underpin each element of the plan, and that the plan should be seen as a living instrument and be kept under formal ‘robust’ review during the life of the Supervision Order.’  Conclusion  Following the decision in JW, it is anticipated that the number of final care orders for children placed at home will drop significantly. As practitioners, it is important to analyse the facts of each case where such a care plan is proposed, to identify whether there are ‘truly exceptional’ circumstances that justify the same. Where a case is to be concluded by way of a supervision order, it is essential that the support plan is a comprehensive document that sets out exactly what the parents can expect the local authority to do to support the family in making the placement successful, and vice versa.  <hr class="wp-block-separator has-alpha-channel-opacity"/>  <a href="#_ftnref1" id="_ftn1">[1]</a> <a href="https://www.judiciary.uk/wp-content/uploads/2023/08/JW-Children-judgment-040823.pdf">https://www.judiciary.uk/wp-content/uploads/2023/08/JW-Children-judgment-040823.pdf</a>  <a href="#_ftnref2" id="_ftn2">[2]</a> <a href="https://www.judiciary.uk/wp-content/uploads/2021/03/March-2021-report-final_clickable.pdf">https://www.judiciary.uk/wp-content/uploads/2021/03/March-2021-report-final_clickable.pdf</a>  <a href="#_ftnref3" id="_ftn3">[3]</a> <a href="https://www.judiciary.uk/wp-content/uploads/2023/04/April-2023-Report-Supervision-Orders-Final.pdf">https://www.judiciary.uk/wp-content/uploads/2023/04/April-2023-Report-Supervision-Orders-Final.pdf</a>  <a href="#_ftnref4" id="_ftn4">[4]</a> <a href="https://www.judiciary.uk/wp-content/uploads/2023/04/Annex-A-Supervision-Order-Plan.pdf">https://www.judiciary.uk/wp-content/uploads/2023/04/Annex-A-Supervision-Order-Plan.pdf</a>

New Family Clerking Appointments at Parklane Plowden Chambers

PLP has a number of exciting announcements to make as it expands and develops its clerking services. <a href="https://www.parklaneplowden.co.uk/clerks/stephen-render/">Stephen Render</a> has been appointed Senior Practice Director of the Family, Chancery and Commercial Teams. He is a highly experienced Clerk with many years of experience in all areas of work covered by those teams, in particular dealing with complex and high value work.  New hire <a href="https://www.parklaneplowden.co.uk/clerks/callum-bryne/">Callum Byrne</a> has been appointed as an additional Family Team Practice Manager. His wealth of experience in clerking a variety of teams will complement our existing Family Team Practice Manager <a href="https://www.parklaneplowden.co.uk/clerks/hannah-townsend/">Hannah Townsend</a> and Family Clerk <a href="https://www.parklaneplowden.co.uk/clerks/claire-wright-nee-shephard/">Claire Wright</a> who pride themselves on their accommodating and highly responsive manner.  <a href="https://www.parklaneplowden.co.uk/clerks/millie-eccles/">Millie Eccles</a> has also been appointed to act as Family Junior Clerk and is a very welcome addition to the clerking team. After successfully completing her apprenticeship with PLP and showing a passion for clerking, she looks forward to starting her career with the family team.  Head of the Family Team <a href="https://www.parklaneplowden.co.uk/our-barristers/julia-nelson/">Julia Nelson</a> commented “We are extremely pleased with all of our new appointments which can only strengthen the position of what is a thriving and successful family team. We look forward to continuing to provide a comprehensive and responsive clerking service to all of our clients.”

Case Law Update: Re Z (Prohibition on Cross-Examination: No QLR) [2024] EWFC 22

Introduction  Sir Andrew McFarlane (President of the Family division) has handed down a very helpful and hotly anticipated judgment regarding the approach the court should adopt when it has directed a QLR be appointed for a party but no QLR has been found. Sir Andrew McFarlane took the opportunity to provide this judgment following a substantive judgment given at the conclusion of a fact-finding hearing.  This case law update is provided to assist practitioners with providing a summary of this case. However, I would greatly encourage all family law practitioners to read the judgment in full and ensure they have a copy to hand in cases where the appointment or discharging of a QLR is likely to be an issue.  Part 4B of the Matrimonial and Family Proceedings Act 1984 (MFPA) was inserted by s65 of the Domestic Abuse Act 2021, and establishes the statutory scheme for the appointment of QLR’s in family proceedings that commenced after 21 July 2022. Sir Andrew McFarlane notes the supporting Statutory Guidance, Family Procedure Rules, and provides a link to the Government website regarding the QLR scheme. His judgment provides a helpful summary of the scheme and its aims at paragraphs 4-20.  Sir Andrew McFarlane goes on to explain the decision that he faced in the case, namely what to do when a QLR is required, but none is available. He notes that many judges and magistrates are facing this issue on a daily basis.  Options Before the Court Where No QLR is Available  Practitioners may recall that in a “View from the President’s Chambers” in June 2023, the President suggested that ‘if no QLR is found within 28 days, the court should list the case for directions and direct that some summary information is provided by HMCTS about the difficulties that have been encountered.’ The President mentions this guidance in his judgment at paragraph 22, and also notes that ‘Cases should not be permitted to drift whilst an open-ended search for a QLR is undertaken” [22].  The President notes that the principal options facing a court at the directions stage, following that 28 days period are likely to be (but not exhaustively):  a) A further adjournment in the hope that a QLR may be found;  b) An adjournment to allow one or both parties to engage their own advocate;  c) Reviewing the need for the vulnerable party to give oral evidence and be cross-examined. This will include reviewing the need for there to be a fact-finding hearing in the proceedings;  d) Considering any other alternative means of avoiding in person cross-examination between the relevant parties;  e) The court itself taking on the task of asking questions in place of the in person party [23].  Importantly, he notes that ‘It does not follow that, if no QLR is available, the court is automatically required to conduct the questioning itself. It is important that all possible alternative options are reviewed at that point in the proceedings’ [23].  The President continues by stating: “When considering the options, and whether the court should take on the questioning, the court will take account of PD3AB paragraph 5.3 which states that: 'a satisfactory alternative to cross-examination in person does not include the court itself conducting the cross-examination on behalf of a party'. The validity of that statement is unlikely to be controversial in the eyes of judges and magistrates. Indeed, the negative aspects of questioning by the court must have been prominent in the thinking in Parliament when the QLR process was brought into law by the 2021 Act” [24].  Interestingly, whilst Practice Direction 3AB paragraph 3.5 states that ‘a satisfactory alternative to cross-examination in person does not include the court itself conducting the cross-examination on behalf of a party’, this provision is not black-letter law. Therefore, the Practice Direction does not prevent the court undertaking the task of cross-examination if the court considers that, in the interests of justice, it must nevertheless do so.  As practitioners well know, the need for the court to deal 'justly' with cases is not confined simply to the need to act in the interests of justice when appointing a QLR; it is a requirement that pervades every step that the court may take throughout any proceedings in order to meet the 'overriding objective' of the FPR 2010.  Ultimately, if the court decides to abandon further attempts to appoint a QLR, the previous direction appointing one must be discharged. The President also notes that, as a matter of good practice, the reasons for the discharge should be very shortly recorded on the face of the order and/or in a short judgment.  Questioning by the Court  The President at paragraphs 28 to 40 goes on to outline the approach regarding questioning by the court, noting in particular his own experience with doing so in the case before him.  “It may, at least in one sense, be reassuring to those judges, magistrates and legal advisers who regularly have to do so, to record that, in the case before me, I found the task of asking the questions to be a particularly burdensome, unnatural and tricky one. As neither party was represented, as the judge I found myself first of all asking questions to tease out further details 'in chief', as it were, from the first of the parties to give evidence before then putting to them most of the questions that the other party wished to have put. The process was then reversed when the other party entered the witness box. Over the course of a full court day, I therefore ended up asking all of the questions.  I have used the word 'tricky' to describe the process as, when undertaking questioning, the court has to tread a narrow path between, on the one side, ensuring the witness' evidence is adequately tested by the points that the other party wishes to raise, but, on the other, ensuring that the judge does not enter the arena or be seen in any way to be promoting the case of one side or the other.” [28-29].  Helpfully, the President sets out in some detail the leading authorities on the questioning of witnesses by judges, including Serafin v Malkiewicz [2020] UKSC 23 and the decision of Hayden J in PS v BP [2018] EWHC 1987 (Fam).  Practitioners and judges alike may find that particular section of the President’s judgment useful when preparing written and oral arguments or judgments on this issue.  The President’s Practical Points  The President concludes at paragraphs 41 to 42 by providing his own practical factors that he would encourage judges to consider.  “Finally, I would offer the following practical points for courts to consider either when appointing a QLR or when preparing to put questions itself:  a) Whilst there is value in the QLR attending court for the ground rules hearing so that they may meet the party on whose behalf they will be asking questions, where this is impractical, and where holding the hearing remotely means that a QLR who could not otherwise act can be appointed, it should be acceptable for the QLR to attend the ground rules hearing remotely;  b) The default position for the full hearing should be for the QLR to be in attendance at court, rather than joining remotely, as the overall effectiveness and fairness of the process is likely to be diminished if they are not in the courtroom;  c) In all cases (whether there is a QLR or not) at the ground rules hearing, or earlier, the court should direct that the prohibited party should submit a clear statement shortly stating the allegations, facts or findings that they seek to establish;  d) In all cases, the prohibited party should be required to file a written list of the questions that they wish to have asked prior to the main hearing. The list should go to the QLR, or to the court if there is no QLR, but not to the witness or other parties. This process should not prevent the prohibited party from identifying additional questions that may arise during the hearing;  In conclusion, whilst it is to be hoped that, in time, the continued training programme and the ability to claim travel expenses will increase the availability of QLRs, there will inevitably remain some cases where there is no alternative but for the court to ask the questions itself. Unsatisfactory though that process plainly is, in such cases it will be necessary in order to deliver a just, fair and timely conclusion to proceedings. Where that is the case, the advice in this judgment is intended to assist the court in navigating the tricky path between ensuring that the opposing case is put fully, fairly and properly, but doing so without entering the arena [41-42].  Conclusion  As the lack of QLR’s is unlikely to be resolved in the near future, this helpful judgment is likely to be of assistance to practitioners and judges alike for some time. Ultimately, on the ground one can see that the issue of proper renumeration for the role of QLR is likely to be one of the key factors that impacts the availability of advocates willing to fulfil that role.  To read the President’s judgment in full, please see the following link: <a href="https://www.bailii.org/ew/cases/EWFC/HCJ/2024/22.html">https://www.bailii.org/ew/cases/EWFC/HCJ/2024/22.html</a>

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