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Setting aside findings of alienating behaviour and the role of unregistered experts following Re Y (Experts and Alienating Behaviour: The Modern Approach) [2026] EWFC 38

In Re Y the President of the Family Division Sir Andrew McFarlane provides clear guidance on the modern approach to be adopted when faced with allegations of alienating behaviour. The President also sets out the appropriate route for parties to take when seeking to set aside findings of parental alienation.  Background  In December 2014, the mother and father separated and subsequently divorced. In 2018, an order was sought by the father for the two children to move and live with him. Allegations of domestic abuse were made by both parents against one another.   In April 2019, the children’s guardian made an application for Ms Melanie Gill to undertake a “specialist family assessment” as a single joint expert. However, as Sir Andrew McFarlane Pmade clear, “Ms Gill does not have a clinical or therapeutic practice in which she sees patients. Whilst her CV lists membership of a range of organisations, Ms Gill is neither a chartered psychologist, nor registered with the Health and Care Professions Council [‘HCPC’].” ([9]). The report of Ms Gill was received in September 2019 at the conclusion of which she found ‘extensive evidence’ that the children were suffering from active alienation by their mother, and as a result the children should be removed from their ‘traumatising environment and relationship with their mother’. The Guardian concurred with the recommendation of Ms Gill.  At a hearing in October 2019, the court heard oral evidence from Ms Gill and no other witnesses. The judge determined at the conclusion of her evidence that the children had suffered from alienating behaviour of their mother towards their father. No other evidence from any other witnesses was heard. At the end of October, the mother launched an application for permission to appeal  In December 2019, with the above application having not been determined, an order was made for the two children to move and live with their father. X, the eldest, was 12, and Y was 9 years old. The children had no contact with their mother between the end of 2019 until 2025.  In early 2025, X had moved to live with her mother for a couple of months before returning to the father. In November 2025, Y, who was then 15 years old, left the father’s home, moving to live with his mother. However, Y was removed into police protection, spending a period of time in foster care until an order was made for him to stay with a friend of the mother.  The Part 18 Application  In April 2025, the mother applied under the Family Procedure Rules 2010 Part 18 to reopen and set aside the findings made in light of new material, namely the decision in Re C (‘Parental Alienation’; Instruction of Expert) [2023] EWHC 345, and the guidance on alienating behaviours issued by the Family Justice Council in December 2024.  The Court began by setting out the required three-stage approach in determining such applications set out in Re CTD (A Child) (Rehearing) [2020] EWCA Civ 1316. The present application concerned only the first stage, namely ‘(1) The court asks first whether the applicant has shown that there are solid grounds for believing that the previous findings require revisiting’.  The Court then conducted an evaluation of recent guidance and authorities on (1) instruction of expert psychologists and (2) the modern approach to parental alienation.  Instruction of experts  The President provided helpful and clear guidance on the instruction of expert psychological witnesses in light of the significant concerns surrounding the use of unregistered experts, setting out that “[i]n future, permission should not be given under CFA 2014, s.13 for the instruction of an expert ‘‘psychologist’ who is neither registered by a relevant statutory body, nor chartered by the BPS. It would be good practice, before a potential expert is appointed, for them to be asked to state whether they hold an HCPC protected title, and if so what that is, before any order is made appointing them as an expert. The ‘registered or chartered’ requirement should only be departed from where there are clear reasons for doing so (for example no registered or chartered expert is reasonably available); where that is so, those reasons should be set out in a short judgment” ([73]).  The President warned against the stark impact if findings are made, such that it “may lead to a radical dislocation of family relationships that is sustained over a period of years” ([74]). It is integral therefore that a “degree of rigour” is applied both by professionals and the court when considering the instruction of an expert (ibid). This applies both in public law and private law proceedings.  Alienating behaviours  It is important to note from the outset that “[t]he factual matrix around allegations of alienating behaviour is a matter for the court alone” and “[a]ny findings of fact once made will then, but only then, be important material for an expert or CAFCASS officer tasked with advising the court on issues of welfare” ([45]).  The Court clarified the modern approach to the question of alienating behaviours at paragraph [75] which, by way of summary, is as follows:  i) the reason for the court’s investigation should be ‘a child’s unexplained reluctance, resistance or refusal to spend time with a parent’, rather than the allegations that one or other parent may be making against the other;  ii) Where a child is reluctant, resisting or refusing to engage in a relationship with a parent or carer (element one), then the court’s focus will move to element two to consider whether that reluctance, resistance or refusal is a consequence of the action of the estranged parent, where it is alleged that that parent has been abusive to the child and/or caring parent;  iii) If it is found that the estranged parent has not behaved in a way in which the child’s reaction can be seen as an ‘appropriate justified reaction’, or, for other reasons, it is found that the child’s reaction is not caused by any factor such as a child’s ordinary alignment, affinity or attachment to the parent with care, then the court willmove on to element three;  iv) At the stage of element three the court will focus on whether the caring parent has engaged in alienating behaviours that have directly or indirectly impacted on the child, leading to the child’s reluctance, resistance or refusal to engage with the estranged parent.  v) Where domestic abuse is alleged, and there is a cross-allegation of alienating behaviour, if a fact-finding process is required, the focus of the fact-finding must be to   (1) determine the issues of domestic abuse and   (2) to consider whether the child’s refusal to engage with the estranged parent is an ‘appropriate justified reaction’ to any abusive behaviour, or that what has occurred is the result of protective behaviour or a traumatic response on the part of the victim parent.  vi) Courts should not determine the issue of alienating behaviour on its own without determining the underlying facts and, where it is alleged, the primary issue of domestic abuse;  vii) Courts should not appoint an expert to advise in cases where a child is reluctant, resistant or refusing to engage with a parent unless and until there is clarity and, if necessary, facts that have been found, as to the parents’ past behaviour towards each other and the child and, if domestic abuse is proved, whether the child’s reaction to that behaviour is an appropriate one.  Determination of the Part 18 Application  The mother was successful in her application given that “the judge in the present case fell into a basic error by not establishing the factual matrix first, in particular whether there had been domestic abuse … before considering any expert evaluation” ([82]). The judge, without making his own factual determination, had accepted Ms Gill’s analysis. The following faults in the approach to case management and in making the findings of fact were identified:  i) Where there were serious cross-allegations of domestic abuse, the question of whether to instruct an expert psychologist or file a final s.7 report ought to have been postponed until after any fact-finding process  ii) An unregistered psychologist “should not have been instructed to provide a psychological assessment at any stage of Family Court proceedings relating to children” ([83])  iii) Given that Ms Gill had no clinical practice, it was concerning that the proposal to instruct Ms Gill had been endorsed by the court  iv) A fact-finding should have been conducted to contextualise the allegations put forward by the mother    v) The court should not have directed the filing of final reports by the expert and Guardian before a fact-finding hearing  vi) There was a “fundamental error” in hearing Ms Gill’s evidence first, and not hearing any other evidence before accepting Ms Gill’s analysis and conclusions ([83])  It was made clear however that the substance of the grounds which the mother was seeking to rely on were not necessarily ‘new’. Whilst there had been further guidance both by the Courts and the Family Justice Council in 2023 and 2024, “[m]uch of what is contained in the ‘new’ material was known of, or was part of developing good practice over the preceding period” ([80]). What had changed was that such practice had been set out in a more concise and clear format in the published guidance.  Appeal or Part 18?  The Court also addressed the additional matter of whether an application for permission to appeal would be more appropriate in these circumstances. It was determined that the more appropriate route is in fact an application under Part 18 given that: (1) there is no need to apply for an extension of time; (2) an appeal is “something of a blunt instrument” as the appeal can only be allowed or dismissed; and (3) if the appeal fails a second appeal “faces a higher permission threshold” ([76]).  Practical Takeaways  • Where there are unresolved allegations or cross-allegations of domestic abuse, it is for the court to determine the facts – expert opinion is not a substitute for judicial determination  • Unregulated experts should not be instructed except where clear and substantive reasons are provided for such an instruction   • When dealing with allegations of parental alienation, utilise the structured approach set out by Sir Andrew McFarlane P and refer to the Family Justice Council Guidance both on the <a href="https://www.judiciary.uk/wp-content/uploads/2022/05/Psychologists-as-Expert-Witness-in-family-courts-in-England-and-Wales-standards-competencies-and-expectations-.pdf">instruction of psychologists as expert witnesses</a> in the family courts and on <a href="https://www.judiciary.uk/wp-content/uploads/2024/12/Family-Justice-Council-Guidance-on-responding-to-allegations-of-alienating-behaviour-2024-1-1.pdf">allegations of parental alienation</a>  • Part 18 is the appropriate route to take when seeking to set aside findings of parental alienation – this is so even when such findings may have been made prior to the FJC Guidance, as was the case here

Arya Vindlacheruvu looks at lost years damages for child claimants

An overview of CCC (by her mother and Litigation Friend MMM) (Appellant) v Sheffield Teaching Hospitals NHS Foundation Trust (Respondent) [2026] UKSC 5.  The Supreme Court confirmed that child claimants could be awarded lost years damages in personal injury claims.   Accordingly, the appeal succeeded and the case was remitted to the trial judge to assess damages for the Claimant’s lost years.  “Lost years damages”  “Lost years” refers to the time between a claimant’s reduced life expectancy, as a consequence of their injury, and their life expectancy pre-injury.   The damages which may be awarded to compensate for those lost years is the sum of the claimant’s loss of earnings and loss of pension, minus their living expenses, over the course of those years.   Background  Liability was admitted. The Defendant failed to prevent the Claimant from suffering a hypoxic brain injury at birth, which resulted in her suffering from cerebral palsy.   The parties agreed that the Claimant’s injuries would reduce her life expectancy to age 29.   The parties also agreed that the Judge was barred from making an award for lost years damages because it was bound by the Court of Appeal decision in Croke v Wiseman [1982] 1 WLR 71.   The Judge declined to assess damages for lost years but granted a certificate for a leapfrog appeal to the Supreme Court to review the correctness of Croke v Wiseman.   The basis of the appeal to the Supreme Court  Whether the bar on lost years claims for children (as per Croke v Wiseman) was inconsistent with the earlier House of Lords’ authorities of Pickett v British Rail Engineering Ltd [1980] AC 136 and Gammell v Wilson [1982] AC 27.  Judgment  In CCC v Sheffield Teaching Hospitals NHS Foundation Trust, the majority found that Croke v Wiseman was inconsistent with Pickett and Gammell.   Previous authorities   Pickett and Gammell recognised the evidential difficulties of proving and assessing lost years damages for child claimants.   Pickett rejected the proposition that lost years damages were confined to claimants with dependants and Gammell attached no significance to the presence of dependants for the purpose of awarding lost years damages.  In conflict with those decisions, the court in Croke v Wiseman barred child claimants from being awarded lost years damages because of the absence of dependants who would benefit from the damages.   Assessing loss  In the present case, the Supreme Court acknowledged the difficulty in assessing lost years damages for a child claimant compared to an adult claimant. However, it was held that the difficult nature of the assessment would not act as a bar to recovery.   Loss of earnings  When calculating a child claimant’s loss of earnings, the majority in the Supreme Court found that judges would be assisted by evidence in relation to a child claimant’s particular situation, including; the child’s educational achievements, the occupation and attitude of the claimant’s parents and siblings, and evidence concerning the average earnings of a suitably tailored category of individuals.   Reliance on such evidence, which can be unrelated to the characteristics of the individual claimant, was a key criticism of Lady Rose’s dissenting judgment.   Living expenses  When calculating the deduction for living expenses for adult claimants, a conventional percentage is generally applied to the net earnings on a rough and ready basis. The majority held that a similar approach could be applied to child claimants[62].  Where the multiplier approach is used to calculate lost years damages, Lord Burrows anticipated that a high deduction from lost earnings for living expenses would be applied in child claimant cases to reflect the high degree of uncertainty involved [141-142].   Calculating lost years damages  The multiplier approach is the usual method for calculating lost years damages for adult claimants. Lord Burrows anticipated that this approach would usually be adopted in child claimant cases [150].   “To calculate damages for the lost years, it is usual to apply a multiplier derived from actuarial tables known as the Ogden Tables, reflecting the number of lost years (ie the difference between the claimant’s actual life expectancy and the life expectancy which the claimant would have enjoyed but for the injury), but discounted so as to allow for the fact that a lump sum is being given now instead of periodical payments over those years (and also to allow for any contingencies not already taken into account), to a multiplicand reflecting the net annual loss during that period (ie the loss of annual income net of tax, and after deduction of the claimant’s probable living expenses).” [7(4)]  Comment   This decision appears to reflect the purpose of compensation: to restore a claimant to their pre-injury position.   Unsurprisingly, there will be less direct evidence of the earning capabilities of a child claimant. Conversely, the older the claimant, the more established they will be in their career, and the more likely they will be able to adduce evidence to assist in quantifying their lost years damages.   The difficulty in assessing lost years damages for child claimants is mitigated by evidence of the claimant’s family’s circumstances and attitudes. This will provide courts with a helpful starting point.  Attempts to distinguish between the damages recoverable by adult and child claimants would arguably be artificial and risk undercompensating a child claimant.   Key Takeaways  Child claimants can claim for lost years damages.   The absence of dependants is not fatal to such a claim.  Evidence of a child claimant’s family’s earnings potential and attitude will inform the court’s assessment of such damages, especially where there is no direct evidence as to the claimant’s individual earning potential.  The Judgment is available <a href="https://supremecourt.uk/uploads/uksc_2023_0111_judgment_bcc0527041.pdf">here</a>.

An Introductory Guide to the Party Wall etc. Act 1996

Introduction: Shared Boundaries, Shared Rights   A party wall sits directly on the boundary line of land which belongs to more than one owner. The most common example is the wall which is between two terraced houses, or two semi-detached houses. It goes without saying that undertaking work on one side of such wall may cause an inconvenience to adjoining owners i.e., those who own the land on the other side of the wall. This statute helpfully provides a framework for preventing and resolving disputes.  Scope of the Act: What types of work does this Act cover?  There are three types of work that engage the provisions of this Act.  Work on existing party walls (section 2) – This covers repairs, demolishing, thickening, underpinning, cutting into a party structure for any purpose, such as inserting damp proof course, cutting away from the party wall, and cutting into a neighbour’s wall for weatherproofing. It also includes demolishing an old wall, and putting in its place a new structure, including a party fence wall. Rebuilding may be required in order to conform to statutory requirements, to remedy defects, or to strengthen the wall.  Building a new party wall/fence (section 1) – Where either owner wants to build a completely new structure on the line of the boundary.   Excavations (section 6) – This entails excavating within 3 metres, horizontally, of an adjoining owner’s building, if the work goes deeper than the adjoining owner’s buildingfoundations, or within 6 metres, if it meets a 45-degree downward angle from the adjoining owner’s buildingfoundations.   The types of work which are not covered by this Act are minor works, which include small, non-structural tasks that do not impact the strength or integrity of a shared wall and thus do not require a formal legal notice or agreement.  Serving Notice: Timelines and Requirements  For each type of work, the Act requires a building owner to serve notice on any adjoining owners. The requirements and particulars of the notice will depend on the type of work, but all notices cease to have effect if the work does not begin within 12 months of service of the notice or is not prosecuted with due diligence.   <a></a>Procedure for existing walls  For work on existing walls, notice shall be served at least two months before the date on which the proposed works begin. Such a notice is referred to as a ‘party structure notice’, and must include:  a. the name and address of the building owner;  b. the nature and particulars of the proposed work including, in cases where the building owner proposes to construct special foundations, plans, sections and details of construction of the special foundations together with reasonable particulars; and   c. the date on which proposed work will begin.   Upon receipt of such a notice, an adjoining owner may serve a counter-notice within one month, which sets out requirementsto include certain features (like chimney supports or extra wall pillars) for the adjoining owner’s benefit, as long as the feature is reasonably required for their convenience. If the adjoining owner has consented to special foundations, the counter-notice may also include a requirement to make them deeper or stronger to support their own future building plans.The adjoining owner must specify the works with particulars and provide plans. A building owner must follow the neighbour's requested changes unless those changes would:   a. damage their interests or property;  b. cause them unnecessary trouble; or   c. cause an unreasonable delay to the original building project.  If either no counter-notice is served within 14 days, the building owner does not agree to comply with the adjoining owners’ requests, or the adjoining owner dissents, a dispute will have arisen.  Procedure for building new walls   When building a new wall/fence, notice shall be served at least one month before the works are intended to start. The notice must indicate the desire to build and describe the intended wall.   If within 14 days of service of the notice, the adjoining owner serves notice indicating consent, the wall shall be built half on the land of each of the two owners or in such other position as they may agree. Both owners will share the cost of building the wall based on how much each person uses it and the current price of labour and materials at the time they use it. If the adjoining owner does not consent, the building owner may only build the wall at his own expense and as an external wall or a fence wall, placed wholly on his own land.   Procedure for excavation  For excavations, notice shall be served at least one month prior to the beginning of the excavation. The notice must indicate proposals and state whether there is a proposal to underpin or otherwise strengthen or safeguard the foundations of the building or structure of the adjoining owner. It shall also be accompanied with plans and sections showing the site and depth of exaction and if intending to erect a building or structure, its site too.   If an adjoining owner who receives such notice does not serve notice indicating consent within 14 days, then he is deemed to have dissented, such that a dispute will have arisen.  Section 10 Dispute Resolution  Where a dispute has arisen, or has deemed to have arisen, the parties shall follow the dispute resolution procedure detailed in section 10. The first step is for both owners to concur in the appointment of an agreed surveyor. If they are unable to agree, then each owner should appoint a surveyor in writing, and the two appointed surveyors should appoint a third surveyor. If either party does not engage in the process, for a period of ten days from the day they were requested to do so, then the other party can make the appointment on their behalf.  The agreed surveyor or the surveyors may determine the disputed matters and make the necessary award. An award may determine:  a. the right to execute work;  b. the time and manner of executing the work; and  c. any other matter arising from the dispute including costs of the award.   Unless the building owner and adjoining owner agree otherwise, any time limit set by the award for work to be completed will not start until the statutory notice period for the disputed work has expired.  The award is conclusive,except that within 14 days of being served an award, either party may file an appeal with the county court. The court may then either cancel or modify the award at its discretion, and issue orders regarding the payment of legal costs.  Conclusion  Ultimately, the Act functions as a statutory bridge between neighbouring interests, designed to facilitate construction while safeguarding property rights. When a building owner refuses to acknowledge a counter-notice or ignores the resolution process, they do not bypass their obligations; they simply shift the matter into the hands of surveyors and the legal system.  By triggering the Section 10 dispute resolution mechanism, the Act ensures that work can eventually proceed under the authority of a binding Party Wall Award, protecting both parties from arbitrary decisions and structural risks. While the process may seem procedural, strict adherence to these statutory timelines and notice requirements is the most effective way to insulate a project from costly court injunctions and long-term neighbourly disputes.

Safeguarding vs. Gross Misconduct: Disability is a Factor, not a Shield

Lucy Evanson recently appeared for Meridian Trust, the Respondent, within the case of JJH v Meridian Trust (3303173/2024), instructed by ARAG Law.  Background  The Claimant was a teaching assistant employed at one of the Trust’s schools from 2017 until his dismissal in 2023. Between 2019-2023, a number of safeguarding concerns were raised against the Claimant’s conduct, which the Tribunal felt they “point[ed] to a history of safeguarding concerns emanating from a failure to maintain professional boundaries”.  In June 2023, concerns escalated sharply. Following an investigation, the Claimant was subjected to disciplinary proceedings in relation to 4 allegations, including breaches of procedure and safeguarding protocols, interference with the investigation, and inappropriate interactions with students. Three allegations were upheld, and one was partially upheld, resulting in his dismissal for gross misconduct. He appealed the decision, leading to an appeal hearing in January 2024, whereby his dismissal was upheld.  The Claimant subsequently brought claims for unfair dismissal, discrimination arising from disability, and failure to make reasonable adjustments.  Judgment and Reasoning  All claims were dismissed.  Applying Burchell principles, the Tribunal found the Respondent genuinely believed the Claimant had committed misconduct and gross misconduct, and that belief was based on reasonable grounds following a thorough and proportionate safeguarding investigation, student evidence and the Claimant’s own admissions.  The Claimant’s evidence was described as “troubling”, particularly his continued contact with students after dismissal and his failure to appreciate the emotional impact on young people. The Tribunal noted that he appeared to prioritise “his pursuit of a spark of happiness” over safeguarding obligations and showed “limited or poor insight” into professional boundaries.  On disability, the Tribunal drew a critical distinction between knowledge at dismissal and knowledge at appeal. While the Respondent conceded the Claimant was disabled, it successfully argued that the dismissing officer did not know, and could not reasonably have known, this at the time. The evidence presented framed the Claimant’s difficulties as a reaction to his parent’s recent health issues, not a long-term impairment. The Tribunal found this described “struggles to be expected of anyone confronted with parental ill health”, rather than a disability triggering Equality Act duties.  However, by the appeal stage, occupational health evidence revealed a longer history of mental health vulnerability. The Tribunal found the appeal panel ought reasonably to have known the Claimant was disabled at that point. Nonetheless, this did not render the dismissal unlawful.  Under section 15, the Tribunal accepted that the Claimant’s misconduct did arise from his disability, noting a “marked escalation” in behaviour corresponding with a deterioration in mental health. However, dismissal was held to be a proportionate response to legitimate aims. The Tribunal was unequivocal: “Transferring the Claimant to another school would have been to transfer the problem. It does not address the safeguarding risk; it just puts the risk somewhere else.”  Alternatives such as extended leave or redeployment were rejected as inadequate, particularly given the Claimant’s lack of insight and the ongoing safeguarding risk. The Tribunal stressed that safeguarding obligations could not be displaced by mitigation where risk to children remained.  The reasonable adjustments claim failed both procedurally and substantively. It was out of time, and in any event the Tribunal found the duty was not triggered in a “fast-moving and serious safeguarding situation” requiring immediate action.  Implications for Employers and Key Learning Points  This decision provides clear guidance on how tribunals approach safeguarding-driven dismissals. Employers may rely on patterns of low-level safeguarding concerns cumulatively, even where no single incident meets the harm threshold. Further, such concerns are not neutralised by disability, even where misconduct is causally linked to mental health. In education and child-facing sectors, where legitimate safeguarding aims are engaged, dismissal may be not only reasonable but necessary, even in the face of compelling mitigation.  Secondly, knowledge of disability is decision-maker specific and time-sensitive. Employers should clearly identify who holds decision-making responsibility at each stage and ensure that information about health conditions is escalated appropriately. However, employers are not required to infer disability from acute distress or short-term reactions to personal crises.  Finally, the Tribunal made clear that alternative sanctions must meaningfully reduce safeguarding risk. Measures that merely defer, dilute, or displace safeguarding concerns, such as redeployment or extended leave, may properly be rejected. Where safeguarding is engaged, employers are not obliged to experiment with measures that leave the underlying risk unresolved.

Missed opportunity for earlier transfer to hospital: Leila Benyounes represents the Family of 20 year old footballer who died after developing sepsis and necrotising fasciitis

Leila Benyounes represented the Family of Luke Abrahams in an inquest at Northampton Coroners Court.  Luke, a much loved son and brother and an amateur footballer, developed a sore throat on 15 January 2023. He was diagnosed with tonsilitis by a nurse practitioner, the first of multiple healthcare professionals that he saw over the week before his death, and prescribed antibiotics. Luke developed severe leg pain and became immobile and was diagnosed with sciatica by an out of hours GP. Due to increasing pain and a temperature on 20 January 2023 three days before his death, Luke’s family contacted 999 for an ambulance and the attending paramedic crew assessed Luke before discharging him instead of transferring him to hospital. Following further 999 calls on 22 January 2023, Luke was taken to hospital by ambulance where he underwent emergency surgical debridement due to necrotising fasciitis and a left leg amputation. Sadly, at that stage Luke was in septic shock, and he suffered a cardiac arrest following surgery, from which he could not be resuscitated. Luke died on 23 January 2023 at Northampton General Hospital.  After a post-mortem examination, Luke’s death was initially recorded as natural causes. Following submissions to the Coroner on behalf of Luke’s Family, an inquest was opened, and two pre-inquest review hearings took place. In a four day inquest which concluded on 23 January 2026, the third anniversary of Luke’s death, Assistant Coroner Sophie Lomas gave a narrative conclusion finding that Luke died due to a rare condition called Lemierre Syndrome which presented as a sore throat and over the course of a week progressed to a septic emboli which travelled through his blood stream and developed into necrotising fasciitis. At the point of diagnosis, Luke was in septic shock, underwent emergency surgery but died following a cardiac arret due to septic shock.  At the first ambulance attendance, Luke had severe pain in his leg, had been immobile for four days, had a recorded pain score of nine out of ten, and an elevated temperature and elevated blood glucose reading.  The ambulance service admitted at the inquest that Luke should have been transferred to hospital on 20 January 2023 and the Crew did not adhere to Trust guidelines and policies. The Coroner accepted the Family’s submission that this constituted a gross failure to provide basic medical care by the ambulance service.  Evidence confirmed that the crucial period of time for debridement surgery for necrotising fasciitis was 24 hours earlier to improve survival rate, and therefore in Luke’s case there was at least a 48 hour period of opportunity for earlier intervention had the first ambulance transported Luke to hospital. The Coroner found that it is likely at that time that Luke’s blood results would have been abnormal prompting further investigations, he would have undergone earlier surgery, and on the available evidence it is possible that Luke would have survived.  The Coroner issued a Regulation 28 Prevention of Future Deaths Report as the NHS guidance described Necrotising Fasciitis as a rare and life threatening infection if a wound gets infected, and the evidence at Luke’s inquest indicated that the information in the NHS guidance is inaccurate.  Ms Benyounes was instructed by Elizabeth Maliakal at Hudgell Solicitors.  Links to press articles:  <a href="https://www.bbc.co.uk/news/articles/c4g04e96eyxo">https://www.bbc.co.uk/news/articles/c4g04e96eyxo</a>  <a href="https://www.bbc.co.uk/news/articles/c4gl42dydypo">https://www.bbc.co.uk/news/articles/c4gl42dydypo</a>  <a href="https://www.itv.com/news/anglia/2026-01-23/missed-opportunity-to-help-man-who-died-from-flesh-eating-disease-says-coroner">https://www.itv.com/news/anglia/2026-01-23/missed-opportunity-to-help-man-who-died-from-flesh-eating-disease-says-coroner</a>  <a href="https://www.telegraph.co.uk/news/2026/01/21/patient-died-flesh-eating-disease-mistaken-tonsillitis">https://www.telegraph.co.uk/news/2026/01/21/patient-died-flesh-eating-disease-mistaken-tonsillitis</a>  Leila Benyounes is Head of the Inquests Team at Parklane Plowden Chambers and is ranked by Legal 500 and Chambers and Partners for Inquests and Inquiries and Clinical Negligence. Leila is appointed as an Assistant Coroner in two coronial areas and Leila regularly represents interested persons in a wide range of inquests including Article 2 jury inquests and complex medical matters. She has a special interest in obstetric, birth injury and fatal cases providing representation at inquest and in clinical negligence claims. She has been appointed to the Attorney General Regional Civil Panel Band A since 2010. Her full profile can be accessed <a href="https://www.parklaneplowden.co.uk/barristers/leila-benyounes">here</a>.

Fairness (Not Just Formula) – Navigating The Factors In s.25 MCA 1973

This article provides an overview about the factors that the court takes into consideration when deciding what is a fair division of martial assets. The general approach and starting point when the court considers the s.25 factors is a two-stage process. Firstly, computing the resources available and secondly the distribution of those resources (Charman v Charman (No4) [2007] EWCA Civ 503).  What does the court take into consideration?  The first consideration of the court under s.25(1) MCA 1973 is the welfare of a minor who has not attained the age of eighteen. This is to ensure that the needs of dependent children are met and they are not disadvantaged because of the breakdown of a marriage.  In exercising its powers to make financial orders, the court is required to have regard to the matters set out in section 25(2) of the Matrimonial Causes Act 1973;  <ol style="list-style-type:lower-alpha" class="wp-block-list"> <li>the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future</li>  <li>the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;</li>  <li>the standard of living enjoyed by the family before the breakdown of the marriage;</li>  <li>the age of each party to the marriage and the duration of the marriage;</li>  <li>any physical or mental disability of either of the parties to the marriage;</li>  <li>the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;</li>  <li>the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;</li> </ol>  The courts approach aims to achieve fairness and equality usually in relation to the assets accrued during the marriage (White v White [2001] 1 AC 596). In Miller v Miller, McFarlane v McFarlane [2006] UKHL 24 there were three strands to achieve fairness in divorce which were: needs, compensation and sharing.  Breakdown of s.25(2) factors –  Taking each factor in turn the below expands on the case law that provides interpretation of the factors set out within s.25(2) MCA 1973. There is no hierarchy and each case turns on its own facts. Therefore, different factors carry different weight depending on the circumstances.  <ul class="wp-block-list"> <li>Income, future earning capacity and property/other resources</li> </ul>  The court looks at current income of the parties and considers the projected income of the parties. The court looks at providing compensation to the party who may have taken a career break or taken time away from work for childcare purposes. It will also consider the parties earning capacity and steps they are reasonably required to take to become financially independent. This may include utilising any qualifications to increase earning capacity and considering opportunities for career development.  In SS v NS [2014] EWHC 4183 it was established that there was no automatic right to spousal maintenance. The parties are expected to become financially independent and this is includes seeking employment (Wright v Wright [2015] EWCA Civ 201). It provided that maintenance cannot be extended on the basis that a party refuses to seek employment. Further in Mills v Mills [2018] UKSC 38 it was set out that if a spouse mismanages their finances, they cannot expect the ex-spouse to compensate for this.  The property that the parties may be required to divide is widely interpreted and includes; real property, chattel, financial stocks, beneficial interests and can be inclusive of business assets dependent on the facts.  <ul class="wp-block-list"> <li>Needs – reasonable financial needs housing/income</li> </ul>  This factor requires the court to consider how each spouse can reasonably have their needs met. Often the primary consideration for spouses who divorce is to ensure their housing needs are met. The court will aim for both parties to have reasonable financial means from the division of assets to ensure the parties are adequately housed.  The parties may also need to consider the division of the former matrimonial home. If the former matrimonial home is mortgaged the court will evaluate if this needs to be sold and equity to be divided or consider if a lump sum can be transferred (buying out) or transfer the home without a lump sum (situation where there are no other resources to be divided).  In meeting the parties housing needs they must be in line with what is considered a realistic option but not always to the standard that was obtained during the marriage (Miller v Miller; McFarlane v McFarlane [2006] UKHL 24).  The court will assess the parties borrowing capacity. In doing so it will weigh up what achieves the fairest outcome for both parties. As there may be discrepancy between parties’ income and therefore the court needs to balance and distribute the assets between the parties to achieve a fair outcome.  <ul class="wp-block-list"> <li>Standard of living</li> </ul>  The court will consider the standard of living enjoyed by the parties prior the breakdown of the marriage. The court is aiming for the parties to be independent of one another financially. The previous standard of living is considered but does not create an automatic entitlement to maintain the same level of lifestyle indefinitely. The court will consider the resources that each party has available. It is likely that in shorter marriages this may result in lower awards due to the standard of living not being experienced over a long period of time by the spouse (Miller v Miller; McFarlane v McFarlane [2006] UKHL 24).  If a party has experienced a high standard of living but if their means are unable to sustain that level of lifestyle this does not give the spouse rise to an unlimited claim (BD v FD [2016] EWHC 594 (Fam)). The court will take the approach that the financial awards should be reasonable and proportionate.  In JB v RB [2025] EWFC 194 the court set out that the parties claims for income requirements were unrealistic and the parties needed to acknowledge that their lifestyles moving forward would be reduced.  <ul class="wp-block-list"> <li>Age of the party & duration of the marriage</li> </ul>  The length of the marriage is considered by the court. The longer the marriage the increased likelihood that the parties’ assets are increasingly intertwined. In shorter marriages (under 5 years) the courts focus is on needs when dividing the assets. In medium marriages (5-15 years) the court will adjust sharing the assets based on a combination of contribution and needs. The longer marriages (15+ years) focus more on the starting point of equal division.  In addition, the younger spouses are expected to rebuild their lives and finances whereas older spouses are more likely to receive longer-term security upon division of the assets. It was set out in Sharp v Sharp [2017] EWCA Civ 408that a short marriage with no children and separate finances may lead to an unequal division. In addition, older spouses with limited working years remaining may receive a higher award. This is in line with projected earning capacity, ability to increase savings and pension contributions that can be made based on limited working years.  <ul class="wp-block-list"> <li>Physical or mental disability</li> </ul>  The court will consider the implications of a physical or mental disability and how these impacts on financial needs, earning capacity, future resources and needs such as adaptations to property or care required.  If either party has a chronic illness and/or long-term needs this may mean that there is ongoing maintenance provided as the condition may limit or prevent one of the spouses from working. The court departed from a clean break for long-term financial security for one of the spouses as a result of a chronic illness (Vaughan v Vaughan [2010] EWCA Civ 349).  In Wagstaff v Wagstaff [1992] 1 FLR 333 the court considered disability and housing needs. In this case the court took into account that a spouse required special housing adaptations. The court prioritised the need for the spouse with disabilities requirement for suitable accommodation and was awarded an increased share of the matrimonial home. The court confirmed in TA v SB [2025] EWFC 61 (B) that in cases where serious disability is an issue that each case if fact dependent and is one aspect the court will take into consideration.  The court also determined that a mental disability was treated equally to a physical disability and that the W’s severe mental health issues prevented her from being able to engage in employment G v G [2002] EWHC 1339 (Fam).  There may also be the need for expert evidence when enhanced needs are claimed (WG v HG [2018] EWFC 84). This may be required when this is for a short period of time e.g. for nursing care or specific adaptations or equipment to a property.  <ul class="wp-block-list"> <li>Contribution each party has made</li> </ul>  The court will look at each parties income, assets, contributions to the home, childcare and career sacrifices. The court accounts for both financial and non-financial contributions equally. It was determined to be unacceptable to place greater value on a spouse contributing financially compared to that of the homemaker as a justification to divide the assets unequally (Lambert v Lambert [2002] EWCA Civ 1685).  The court considers short marriages and special contributions. In short marriages the court may give increased weight to financial contribution. In addition, special contributions may give rise to an unequal split e.g. exceptional business success (Miller v Miller; McFarlane v McFarlane [2006] UKHL 24).  <ul class="wp-block-list"> <li>Conduct</li> </ul>  The court will look at the conduct of each party and considers if it would be inequitable to disregard it. The general rule is that the court will not make an order requiring one party to pay the costs of another party (FPR 28.3(5)). However, it will depart from the general rule if it considers appropriate to do so on the basis of one party’s conduct before or during proceedings (FPR 28.3(6)/(7)).  In OG v AG [2020] EWFC 52 Moyston J set out four scenarios where conduct is considered relevant:  <ol style="list-style-type:lower-roman" class="wp-block-list"> <li>Gross and obvious personal misconduct</li>  <li>The add-back jurisprudence (financial misconduct)</li>  <li>Litigation misconduct</li>  <li>The evidential technique of drawing adverse inferences</li> </ol>  However conduct is often not relevant in financial remedy proceedings and the threshold is high. In the majority of cases for the court to achieve fairness it will not be required that the conduct of the parties is brought into question.  Key things to know:  <ul class="wp-block-list"> <li>Consider the courts will take a fair approach to try and ensure both parties reasonable needs are met</li>  <li>The standard of living is relevant but not decisive</li>  <li>The age of the parties and duration of the marriage can influence how assets are shared</li>  <li>The court will account for physical or mental disabilities and the needs that may arise from this.</li>  <li>The court considers the contribution each party has made towards the marriage which can be financial or non-financial.</li>  <li>Conduct is taken into account in exceptional cases.</li> </ul>

The Power of Privilege: An Overview

Privilege is one of the most important protections in English law. It is vital to safeguard client communications but can be easily lost through a mistake. This article offers a practical overview, looking at key cases to keep in mind.  Types of Privilege  There are three main strands:  <ol class="wp-block-list"> <li>Legal advice privilege (LAP): Protects confidential communications between lawyer and client for the dominant purpose of giving or receiving legal advice</li>  <li>Litigation privilege (LP): Protects confidential communications with third parties made for the dominant purpose of preparing for litigation that is reasonably contemplated</li>  <li>Without prejudice privilege (WPP): Protects genuine settlement discussions in an existing dispute (Framlington v Barnetson [2007] EWCA Civ 502).</li> </ol>  Exceptions to Privilege  WPP was described as “jealously guarded” by the Court of Appeal in Motorola Solutions Inc v Hytera Communications Corp Ltd [2021] EWCA Civ 11, but there are exceptions.  There are two different doctrines which apply to the different types of privilege. The iniquity principle is the exception for LAP and LP, and the exception for without prejudice communications is covered by the unambiguous impropriety principle.  Both mean that where the conditions are met, the communication will not be privileged.  Iniquity Principle  The iniquity principle sets out that LAP and LP do not apply where advice furthers a crime, fraud or conduct contrary to public policy. The Court of Appeal confirmed the principle in Curless v Shell [2020] ICR 431, stressing that ordinary employment law risk management is not “iniquitous.”  More recently in Al Sadeq v Dechert LLP [2024] EWCA Civ 28, the Court of Appeal held that, in deciding whether the exception applies, the decision maker must decide on the balance of probabilities whether there is indeed putative iniquity (at §98). Where iniquity had been evidenced, the standard was further expanded – there was no privilege in documents and communications brought into existence "as part of" or "in furtherance of" the iniquity.   Unambiguous Impropriety  The principle of unambiguous impropriety means that WPP cannot be used to conceal dishonesty such as blackmail or perjury (Unilever plc v Procter & Gamble [2000] 1 WLR 2436). The threshold is high, with robust negotiation falling outside what constitutes concealing dishonesty. In Garrod v Riverstone Management Ltd [2022] EAT 177, suggestions were made to terminate employment as part of settlement negotiations following G’s complaints of discrimination for pregnancy and maternity discrimination including bullying and harassment. The EAT held that termination was rather a way of resolving the issue and would not be sufficient to satisfy the Unilever definition of unambiguous impropriety. The EAT upheld the ET’s decision at first instance ruling that references in the Claimant’s particulars of claim and evidence to settlement proposals made by the employer at a meeting before the claim was issued should be removed because they were within the scope of WPP.  The EAT in Swiss Re Corporate Solutions Ltd v Sommer [2022] EAT 78, further confirmed the high bar for unambiguous impropriety. Where an employer makes ‘exaggerated allegations’, it may still be protected by WPP unless there is evidence of the ‘guilty party’s state of mind’. Provided there is a reasonable basis for allegations, the EAT held that such types of communications, while potentially threatening when settlement is involved, are not unusual in litigation.  Potential Problems    Provided the exceptions do not apply, the following should be borne in mind in practice:  Who is the “Client” in LAP?  LAP is restricted to communications between lawyers and clients. Where the client is an individual, the client will be the individual.  When the client is a corporation, it is less straightforward. The case law appears to have landed on a narrowly construed definition. The leading case is Three Rivers (No 5) [2003] QB 1556, which confirmed that the client is only those authorised to seek and receive legal advice on the corporation’s behalf. Those who are authorised simply to provide lawyers with information, by way of interviews in investigations, are not the ‘client’. Instead, these employees are thought to be third parties. Communications with those who are not the ‘client’ will not be privileged.  SFO v ENRC [2019] 1 WLR 791 has suggested, though, that this area of law is ripe for reconsideration at §§123 – 130. The restrictive definition of ‘client’ has left employee interviews excluded from lawyer-client communications, and subsequently excluded from protection under privilege. At §130, discussing Three Rivers (No. 5), Sir Geoffrey Vos C concluded that:  <blockquote class="wp-block-quote"> “If… it had been open to us to depart from Three Rivers (No. 5), we would have been in favour of doing so. For the reasons we have given, however, we do not think that it is open to us, so it is a matter that will have to be considered again by the Supreme Court in this or an appropriate future case.”  </blockquote>  For now, Three Rivers (No. 5) remains binding, confirmed in Al Sadeq v Dechert LLP (above). It will be up to the Supreme Court or Parliament to invoke changes to LAP issues.  Confidentiality in the Workplace  LAP and LP only exists if communications are confidential – confidentiality is a key requirement for both types of privilege. Loss of confidentiality will result in loss of privilege. Note, however, that confidentiality is not a requirement for WP communications.  Cases such as Simpkin v Berkeley [2017] EWHC 1472 (QB) and Taylor v Evans [2023] EWHC 934 (KB), highlight the gaps in the law when communications on IT systems may or may not be confidential, affecting whether an employee can assert LAP. In Simpkin, an employee used his work IT systems to seek legal advice. The emails were not deemed to be privileged as lawyer-client communications because the emails were created and stored on the employers’ IT system and thus not regarded as confidential as against the employer. The claimant had signed the employer’s IT policy which confirmed emails would be monitored by the employer and were the employer’s property.  In Taylor, though, emails were held to be confidential because the context made it clear the material was personal and privileged. A staff member at the Labour Party sent an email seeking legal advice. The Labour Party sought a declaration that the email was not privileged. The email relied upon was marked as privileged. It was found when the staff member, M, handed in their work computer for investigation. It was sufficiently clear to the Labour Party that the staff member, when handing over her laptop, had not intended to leave confidential information stored on the device, which included personal documents.  The two contrasting cases has left the legal position unclear regarding confidentiality on employer’s IT systems, and whether this affects privilege. It requires a fact-specific analysis.  Waiver  Confidentiality differs to waiver of privilege. Brennan v Sutherland City Council [2009] ICR 479 defined “waiver” – it is about reliance on privileged communication. Where a party relies on privileged communication, privilege has been waived. There is a secondary risk of collateral waiver, which seeks to stop parties selectively disclosing privileged material which may be misleading.  Dominant Purpose Test  When emails are sent to multiple recipients, including lawyers, privilege depends on the dominant purpose of the communication (Jet2.com v CAA [2020] QB 1027). Simply copying in a solicitor is not enough. The main purpose of each email has to be identified. Where emails are sent to a lawyer with a specific request for advice, they will be covered by LAP. Where there is a rolling series of communications, it is possible that, while there may not be a specific request for advice in every particular email, as a whole the dominant purpose can be perceived as for advice.  Where emails have the dominant purpose to obtain the view of non-lawyers, then the communications will not be privileged. This remains the case if there is a second-hand purpose of simultaneously obtaining legal advice in the future, and even if lawyers are copied in.  The dominant purpose test can similarly be applied to meetings, which can be split up into non-legal discussions and where the dominant purpose is to receive legal advice or give instructions. In applying the test to assess whether each part of the meeting is privileged or not, consideration should be given to whether there is more than a mere presence of a lawyer at meetings.  Takeaway Tips  <ol class="wp-block-list"> <li>For legal advice privilege, clarify at the outset who is the ‘client’.</li>  <li>Keep circulation of privileged advice narrow and controlled.</li>  <li>Mark communications “Privileged and Confidential” to avoid future complications.</li>  <li>Similarly, state clearly when discussions are “without prejudice”.</li>  <li>Train clients and teams on confidentiality and waiver risks.</li> </ol>

Richard Copnall represented the family of John Henry Oates in Inquest

On 27 October 2023, 29‑year‑old runner John Henry Oates tragically lost his life after coming into contact with a low‑hanging live electricity cable while out training for a half‑marathon on a public footpath near Lupton, close to Kendal in Cumbria. He had been visiting his parents at the time, and was reported missing when he did not return from his run.  Richard Copnall represented the family of John Henry Oates, also known as Harry in an inquest which concluded on Tuesday 16 December 2025 with Senior Coroner for Cumbria, Kirsty Gomersal returning a narrative conclusion, capturing the complexity of the mechanical and procedural factors that contributed to the fatal incident. The Coroner’s findings also underline the importance of robust monitoring and reporting mechanisms within energy infrastructure networks to prevent similar tragedies.  Read more: <a href="https://www.bbc.co.uk/news/articles/c70lk5w70glo">Cumbria coroner calls for action after runner Harry Oates electrocuted - BBC News</a>  <a href="https://www.isonharrison.co.uk/blog/coroner-to-send-prevention-of-future-deaths-report-to-energy-networks-association-following-son-and-brothers-death/">Coroner to Send Prevention of Future Deaths Report to Energy Networks Association Following Son and Brother’s Death - Ison Harrison Solicitors</a>  <a href="https://www.itv.com/news/border/2025-12-16/inquest-finds-runner-was-electrocuted-in-rare-and-complex-sequence-of-events">Inquest finds runner was electrocuted in 'rare and complex sequence of events' | ITV News Border</a>  <a href="https://www.itv.com/news/border/2025-12-17/family-of-runner-killed-by-electricity-cable-make-statement">'Our pain and grief are immeasurable': Family of runner killed by electricity cable make statement | ITV News Border</a>  <a href="https://www.bbc.co.uk/news/articles/cx239xv8d3eo#:~:text='Rare%20and%20complex',conductor%20and%20was%20killed%20instantly">Man electrocuted by cable during run near Kirkby Lonsdale - BBC News</a>   Richard was instructed by Director and Head of Inquests at Ison Harrison, Gareth Naylor.

A return to first principles – evaluating proportionality of placement orders following Re N (A Child) (Placement Order: Proportionality) [2025] EWCA Civ 1541

Background  The case concerned an unusual set of circumstances. The relevant child (‘L’) was born in October 2023 following assisted overseas conception. The mother, aged 55 at the time of L’s birth, was a Japanese national who had lived in the UK for numerous years. After L’s birth, the Local Authority had concerns about the mother’s ability to care for him, leading to the mother agreeing to support in a placement under s.20 CA 1989. They remained in placements for 21 months, moving from a semi-independent placement to mother and baby foster placements, before the Local Authority successfully applied for care and placement orders.  Decision at First Instance  Threshold  The recorder determined that L was at risk of significant physical harm if he was to be cared for by his mother as:  <ol class="wp-block-list"> <li>There had been numerous small incidents involving L, such as L falling after the mother fell asleep with him on her lap and the mother placing a rubber mat under L’s highchair making it unstable; and</li>  <li>The mother failed to demonstrate a capacity to recognise and protect from those physical risks which if left unmanaged could have “potentially catastrophic” consequences ([146]).</li> </ol>  It was also determined that L was at risk of significant emotional harm because:  <ol class="wp-block-list"> <li>The mother demonstrated “significant emotional dysregulation” ([149]), including aggressive and inappropriate behaviour towards professionals; and</li>  <li>As a result of the mother’s “personality and combative style of interaction” ([153]), the recorder was anxious that professionals may not feel comfortable raising concerns about L in the future.</li> </ol>  Welfare  Care and placement orders were deemed necessary and proportionate to safeguard L’s welfare into the future. Attention was paid to the significant disruption which would be caused to L’s life, but it was determined that these risks could be mitigated by ongoing direct contact.  The Court of Appeal’s Decision  The Court allowed the appeal, setting aside the care and placement orders. The orders were substituted by an interim care order, and the applications were remitted to the High Court for a rehearing.  Peter Jackson LJ, giving the leading judgment, began by emphasising that “[u]nusual cases prompt a return to first principles” [39]. Therefore, at paragraph [42], his Lordship set out a three-pronged approach to take in circumstances such as these:  (i) in assessing the risk of future harm, the court should consider: the type of harm that may arise; the likelihood of it arising; the severity of the consequences if it arose; and what risk reduction or mitigation steps can be taken.  (ii) Having reached its conclusion about those matters, the court should make a comparison of the welfare advantages and disadvantages of each course of action; and  (iii) finally step back and check that any interference with rights arising from its proposed decision is necessary and proportionate.  In summary: in a case that turns on risk of harm, does the risk justify the remedy?  The Court made it clear that threshold was not crossed due to extreme circumstances, instead due to the substantial and repeated concerns raised by professionals as to the mother’s parenting and dismissive attitude towards professional guidance.  It is however important when considering whether to make a placement order to “maintain a sense of proportion and keep the bigger picture in view” ([45]). The case for L’s adoption was predicated on numerous small incidents paired with the mother’s dismissiveness. In circumstances such as these, “particularly compelling justification” is required to substantiate why a placement order is proportionate and necessary ([45]).     The following were key factors which the recorder ought to have considered – and which practitioners should pay due attention to – when considering necessity and proportionality:  (1) Materialisation of harm  <ul class="wp-block-list"> <li>The recorder highlighted that early childhood can be a risk-laden and dangerous time for small children if appropriate supervision is not in place. In light of the evidence of the mother’s obstinacy, the recorder had no doubt that the mother could not protect L from such risks. </li>  <li>However, courts are concerned with how the likelihood of risks materialising relates to the relevant child. The recorder “did not attempt to describe the increased likelihood of L having accidents, compared to small children generally”, and resultantly “unduly elevated the significance of this element of the welfare checklist” ([46]).</li>  <li>The recorder therefore had not set out the necessary link which is central to the consideration of the increased likelihood of harm which the relevant child may suffer, as compared to those risks faced during the course of ordinary childhood</li>  <li>The Court made it clear that during the two years which the child was placed with the mother the child did not suffer any actual harm, never mind significant harm – an essential step was therefore missing in recorder’s assessment.</li> </ul>  (2) Identifying possibilities for risk management  <ul class="wp-block-list"> <li>The recorder accepted the view of the ISW that effective 24/7 support could not be offered to the mother, despite the mother having set out that she wanted to work, was willing to employ a nanny or childminder and had already “voluntarily accepted extensive limitations on her freedom of action for nearly two years” ([47]).</li>  <li>Peter Jackson LJ made it clear that the courts will scrutinise the availability of any alternatives, such as the employment of a nanny, community-based support or placement in a nursery, before adoption will be contemplated</li> </ul>  (3) Significance of cultural and situational factors  <ul class="wp-block-list"> <li>The recorder, whilst recognising these factors, failed to include them in her analysis and placed too much emphasis on the mother’s oral evidence when considering her likely future behaviour.</li>  <li>The Court emphasised that “[t]he complex cultural factors … required particular caution” in the context of the mother’s lack of insight into the concerns raised by professionals.</li>  <li>Consideration ought to have been given to “the extent to which effective protection might depend on insight, as opposed to other measures” ([49]).</li> </ul>  (4) The impact of “difficult parents”  <ul class="wp-block-list"> <li>Significant reliance was placed on the mother’s sporadic emotional dysregulation, but L had not suffered any apparent harm from those incidents.</li>  <li>Whilst “many children have difficult parents and grow up surrounded by conflict” ([50]), what is important for the Court is a clear demonstration of how that difficulty feeds into resultant harm to the relevant child.</li> </ul>  (5) Practicality of post-adoption contact as mitigation  <ul class="wp-block-list"> <li>As set out above, the recorder was cognisant of the disruptions which L would likely face from separation but deemed the Local Authority’s suggestion of some gradually reducing post-adoption contact to be sufficiently mitigating. Following the separation of L and his mother on the day of the orders, no contact had however taken place for three months.</li>  <li>The Court made it clear that “on the recorder’s own assessment of the mother, it [was] hard to see how she could have expected that post-adoption contact could successfully occur” ([51]).</li>  <li>Parties must therefore be practical and realistic as to the weight that can be attached to, and the appropriateness of, any proposed contact.</li> </ul>  Commentary  The termination of a parent/child relationship by a placement order is one of the most severe and draconian steps a court can take. Only where the deficiencies in the parenting which the child is likely to receive are of a nature and degree to justify termination should such orders be made. Put simply, “only in exceptional circumstances and where motivated by overriding  requirements pertaining to the child's welfare, in short, where nothing else will do” (per Baroness Hale in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 at [198], set out by Peter Jackson LJ at [40]).  In summary:  <ul class="wp-block-list"> <li>Clear and substantial justifications are needed to evidence necessity and proportionality</li>  <li>Those justifications must be well-reasoned, looking at the case in the round</li>  <li>The test set out by Peter Jackson LJ at paragraph [42] outlined above provides a helpful framework to utilise in cases such as this</li>  <li>“where nothing else will do” remains central to the consideration of placement orders</li> </ul>  Practical Takeaways  When assessing proportionality, it is essential to:  <ul class="wp-block-list"> <li>Quantify risk</li>  <li>Explore realistic support</li>  <li>Factor in any relevant cultural context</li>  <li>Avoid over-reliance on purported parental ‘insight’</li>  <li>Consider the feasibility of any proposed contact</li> </ul>

The Nuance Between Forensic Probabilities and Possibilities – Paediatric Gonorrhoea and Fomite Transmission – [2025] Fam Law 1445

We are pleased to share a new publication in Family Law Journal by Children and CoP barrister, Avaia Williams. In his latest article for Family Law Journal, Avi examines a significant issue, how courts should treat theoretical scientific possibilities when applying the balance of probabilities. Considering the Court of Appeal’s recent judgment in Re F and another (Fact Finding: Gonorrhoea) [2025] EWCA Civ 340, the article explores why the elevation of “fomite transmission” from a bare possibility into a determinative alternative, risks distorting fact-finding in cases involving paediatric sexually transmitted infections.  Avi reflects on what fomite transmission actually is and why it has acquired such prominence in recent litigation, before analysing how expert evidence framed in non-binary scientific terms can be misunderstood within a legal system that requires binary conclusions. He discusses the Court of Appeal’s clarification of Re A, B and C, dispelling the idea that it provides a prescriptive test, and explains why a mere theoretical mechanism should not be mistaken for a probable route of transmission, particularly where the medical consensus overwhelmingly points in another direction.  In concluding his piece, Avi notes:  “It is clear, since Re A, B and C, that the evidence of an almost exclusively sexually transmitted infection not being determinative of sexual contact has been wrongly inferred into a starting point or a significant hurdle which needs to be jumped. This has led to the factors 'pointing the other way' noted in Re A, B and C, being seen as such a checklist or determinative of the case (which we now know from Baker LJ's own words are not such general checklist)  […]  Re A, B and C was never a mandate to discount expert consensus whenever a fanciful alternative can be imagined; it was a reminder not to convict on science alone without canvassing the wider evidence. Re F and B restores the missing half of that equation: the wider canvas does not licence a court to simply discount what the science says is overwhelmingly likely. Nor does it sanction a 'tick-box' defence drawn from someone else's litigation strategy.”  Avaia’s piece can be accessed <a href="https://plus.lexis.com/uk/analytical-materials-uk/the-nuance-between-forensic-probabilities-and/?crid=0da9f210-170f-45a4-a801-196411007b5a&pddocumentnumber=4">here</a> for those with a subscription to LexisNexis or in the December copy of Family Law Journal.

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16 March 2026

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