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HQA v Newcastle-upon-Tyne Hospitals NHS Foundation Trust

<a href="https://www.parklaneplowden.co.uk/our-barristers/howard-elgot/">Howard Elgot</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/megan-crowther/">Megan Crowther</a> of Parklane Plowden Chambers, instructed by David Bradshaw of <a href="https://www.hay-kilner.co.uk/">Hay & Kilner LLP</a>, acted for the Claimant in her claim against the Newcastle-upon-Tyne Hospitals NHS Foundation Trust in a 5-day High Court trial at the Royal Courts of Justice last week. Judgment has been reserved. The trial is to determine breach of duty and causation, and liability has been strongly contested by the Trust. The claim was brought after the Claimant, who can be referred to only as HQA because of an anonymity order made by the High Court, suffered severe brain damage after undergoing open heart surgery at the Freeman Hospital, Newcastle. The Claimant had suffered congenital heart problems from birth and had undergone many operations and other procedures over her lifetime. In order to gain access to her heart, the surgeon used an oscillating saw. The saw slipped, and instead of the saw cutting through only the anterior section of the Claimant’s sternum, the saw went fully through the sternum and into her aorta, cutting off the blood supply to her brain. It then took so long for the surgeons to put the Claimant on cardio-pulmonary bypass that she suffered very severe hypoxic brain damage. The time was prolonged in part because another surgeon, who had been called in because of the emergency, attempted to cannulate one femoral artery, the artery dissected, and another femoral artery had to be prepared and cannulated. Following the operation, HQA’s family were told to expect the worst, but the Claimant has at least made a partial recovery. The allegations against the hospital are that the surgeons did not obtain HQA’s informed consent to the operation, that the surgeons failed to plan adequately for the possibility of the catastrophic event that occurred, and that the operating surgeon ought to have been able to keep control of his saw. The Claimant’s expert cardiac surgeon advised that the dissection of the artery in the panic of the emergency was an inherent risk and therefore a free-standing claim relating to the arterial dissection could not be pursued. The allegations that the surgeons failed to prepare for the possibility of the aorta being pierced during the surgery were focused upon the CT Angiogram that HQA had undergone before surgery, and another CT Angiogram that she had undergone in 2016. A central issue was whether HQA’s aorta was so closely applied to the back of her sternum that any slip of the saw or use of any dissecting instrument would inevitably pierce the aorta. The claim is estimated to have a value of over £5,000,000.

The new Express Financial Remedy pilot

Speed, Simplicity, and Sense: A New Era for Modest Asset Divorce Cases?  Justice just got faster- or at least that is the aim. The new Express Financial Remedy Pilot, launched in April 2025, is set to transform how the family courts handle low to mid-asset financial remedy cases. With a streamlined two-hearing structure, frontloaded preparation, and a firm timetable from issue to final hearing, the pilot is designed to cut costs, reduce delay, and make proceedings more proportionate. The pilot is applicable for the next year across key regions in England, and this fast-track scheme is already reshaping expectations. In this article, we explain who it applies to, how it works, and what practitioners need to be aware of when dealing with pilot cases.  Who does the pilot affect?  The pilot is applicable to cases with combined net assets of £250,000 (excluding pensions) after deduction of liabilities and mortgages: in essence, the low and modest assets cases.  The pilot does not affect applications for a variation order under section 31 of the Matrimonial Causes 1973 or Part 11 of Schedule 5 to Civil Partnership Act 2004.  Please note: if, after completion of the Form A and exchange of Forms E, either party believes that the case should not form part of the pilot, they can apply to leave it by lodging a D11. If the court agrees, it will remove the case from the pilot and send a new timetable. When determining whether a case should leave the pilot, the court must consider all the circumstances including whether there are:  <ul class="wp-block-list"> <li>Complex assets or income structures;</li>  <li>Other potentially complex issues;</li>  <li>Other circumstances which would prevent an effective FDR as a first hearing, or where the final hearing is likely to require more than one day.</li> </ul>  What is the aim of the pilot?  The aim of the pilot, also known as the ‘fast-track’ procedure, is to resolve contested financial remedy cases more quickly, by having a maximum of two hearings instead of three, thereby enhancing the efficiency in the disposal of FR cases.  The pilot is implemented through Practice Direction 36ZH, which amends rule 9 of the Family Procedure Rules.  The pilot is structured as follows:  <ul class="wp-block-list"> <li>There is no first appointment.</li>  <li>The first hearing notice (form C) will list a financial dispute resolution appointment, and the following directions will be made: <ul class="wp-block-list"> <li><ul><li>Forms E 28 days before the FDR.</li></ul></li>  <li><ul><li>Agreed property valuations, mortgage raising capacity and questionnaires 14 days after mutual exchange of Forms E. If no agreement on property values is reached, expert report to be obtained.</li></ul></li>  <li><ul><li>Replies to questionnaire and property particulars 28 days thereafter.</li></ul></li>  <li><ul><li>Proposals for settlement 21 days before the FDR. These can be open or without prejudice.</li></ul></li>  <li><ul><li>Schedule of agreed issues to be filed 14 days before the FDR.</li></ul></li>  <li>ES1, ES2 and agreed chronology to be filed 7 days before the FDR.</li> </ul> </li>  <li>The FDR will take place between 16 to 20 weeks from Form A (please note: the pilot does not apply to applications for a consent order, which will continue to be dealt in the normal way).</li>  <li>If the parties reach an agreement, they will be expected to apply for a consent order. Government guidance states that this can be done after the hearing via post; legal represented parties will continue the current practice, i.e. draft consent orders for the court to approve there and then, or Heads of Agreement under Rose v Rose.</li>  <li>If no agreement is reached, the matter will be listed for a final hearing, with open proposals being filed 7 days after the FDR (as opposed to the 21 days required by FPR rule 27A). At this point the court can remove the case from the pilot if appropriate.</li>  <li>The final hearing will take place between 26 to 30 weeks after forms A and will typically last one day.</li> </ul>  Where is the pilot being implemented?  The court areas taking part in the pilot are Cheshire and Merseyside; Cleveland, Newcastle and Durham; Greater Manchester; Lancashire and Cumbria; North and West Yorkshire; West Midlands.  A full list of the pilot areas can be found at paragraph 1.5 of Practice Direction 36ZH and in the government’s short summary <a href="https://www.gov.uk/guidance/what-to-expect-if-you-are-in-the-express-financial-remedy-pilot">here</a>.  When is the pilot taking place?  The pilot automatically applies to cases where the form A is completed between 7 April 2025 and 3 April 2026.  Conclusions and observations  The fast-track procedure has been on the cards for some time, and is a welcome development which, it is hoped, will help resolve modest asset cases in a quick and efficient way and without the need to incur excessive legal costs. Practitioners are all too familiar with cases where the overall costs are almost equivalent to the asset base, and this is often due to delays. It is expected that this pilot will free up time and space for those more complex cases which require a larger share of the court’s resources and are often stuck in the system for months.  Concerns have been raised in respect of the impact that this pilot will have for litigants in person, for whom the first appointment is the first real opportunity to receive an explanation from the court of what is expected of them and the structure of the process (please see the Financial Remedies Journal article by Caroline Bowden <a href="https://financialremediesjournal.com/content/the-express-financial-remedy-pilot-ndash-a-fast-track-to-success-or-turmoil.b0619405797f437da9c6c104a66952ca.htm">here</a>).  The pilot requires a frontloading approach, which practitioners are already familiar with following the implementation of the Efficient Conduct Statement in 2022. The timetable for the fast-track process is even shorter, and it remains to be seen whether experts are able to assist the parties with these tight turnarounds. Under the pilot, it is expected that the case will conclude in the space of around 7 months from issue, and the final hearing to take place around 10 weeks after the FDR. Whilst the value of pensions is not included in the £250,000 limit and therefore a case involving a fairly large pension can still be run under the fast-track procedure, it is expected that, if a complex pension structure is involved and the report of an actuary is required pursuant to the guidance in the PAG report, parties would be advised to apply to be removed from the pilot. This would enable sufficient time for the completion of a PODE report and a proper opportunity to consider its recommendations.  In the event that matters do not resolve at the first hearing and it becomes apparent that the case needs to be removed from the pilot, it is expected that parties will remain at liberty to explore different options such as a private FDR.  Parties and practitioners must not forget the requirement to engage in NCDR. Just because the process is ‘quicker’, it does not mean that this very important step can be missed. Following the implementation of The Family Procedure (Amendment No 2) Rules 2023 on 29 April 2024, parties are expected to engage in NCDR and the court may adjourn the proceedings when this has not taken place, or consider departingfrom the general starting point that there should be no order as to costs if a party has refused to attend NCDR without a good reason. In a modest asset case, a proportionate approach to costs is of the essence and it remains to be seen whether courts will apply an even more strict approach to the above requirement to ensure parties do not become embroiled in unnecessary litigation.  Giorgia Sessi is part of the Family Team at Parklane Plowden Chambers, her profile can be accessed <a href="https://www.parklaneplowden.co.uk/our-barristers/giorgia-sessi/">here</a>.

Avoidable Baby Death: Leila Benyounes Represents the Family at Inquest

Leila Benyounes represented the Family of a baby that died aged 1 day old in an 11 day inquest in Bradford. Leo Luca Thomson was born on 13 November 2018 at the Calderdale Royal Hospital in Halifax.  HM Assistant Coroner Peter Merchant found that Leo’s birth at 34 weeks’ gestation arose due to concerns from a cardiotocograph trace (CTG) indicating Fetal Bradycardia. There was a delay in escalating concerns regarding the CTG trace to a Doctor which in turn led to a delay in the decision to perform a Category 1 Caesarean Section. Further, when the decision to perform the Category 1 Caesarean Section was taken, a maternity theatre was not immediately available. This resulted in a delay of up to 9 minutes in Leo's delivery.  It was found that earlier delivery would have avoided a corresponding period of neurologically damaging acute profound hypoxic ischaemia such that with the prompt and effective resuscitation that he was given, would, on the balance of probabilities have led to Leo's survival.  It was also found that there were failures in Leo’s mother’s care in the days preceding Leo’s birth and she should have been diagnosed with a premature rupture of membranes on 12 November 2018, which would have led to an earlier admission to hospital.  Despite prompt and effective resuscitation Leo had suffered Irreversible Hypoxic Ischaemic  Encephalopathy (HIE). Tragically, baby Leo was transferred to Forget Me Not Hospice in  Huddersfield on the day after his birth and he died there.  The inquest heard evidence from 15 witnesses including three independent expert witnesses in midwifery, obstetrics and neonatology.  The local news article can be accessed <a href="https://www.examinerlive.co.uk/news/west-yorkshire-news/mistakes-delays-yorkshire-maternity-unit-31868155">here</a>.  Ms Benyounes was instructed by Fay Russell of <a href="https://www.switalskis.com/">Switalskis</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>

Missed opportunities by Police to Secure Appropriate Mental Health Support for 35 Year Old Father Talked Down from Railway Bridge

Bronia Hartley represented the family of a 35 year old father who took his life at a homeless hostel where he was left by police officers 20 minutes after being talked down from a railway bridge, from which he had intended to jump.  The inquest heard that Dean Bradley was expressing persecutory beliefs and appeared paranoid and delusional. Body Worn Video disclosed Mr Bradley pleading with officers not to be returned to the homeless hostel due to his delusional belief that people staying there were going to kill him.   Following his death Mr Bradley was found to have an excessive amount of prescribed antidepressant medication in his system but no alcohol or drugs of abuse.  HM Senior Coroner for Teesside and Hartlepool, Clare Bailey, found that the officers, who did not contact mental health services before leaving Mr Bradley at the homeless hostel, made “dangerous assumptions” about his presentation and failed to secure appropriate mental health support for him.   The Coroner issued a Prevention of Future Deaths report detailing concerns regarding safeguarding pending mental health assessment where the individual is believed to be intoxicated.  Bronia was instructed by Lois Hepworth of <a href="https://www.watsonwoodhouse.co.uk/">Watson Woodhouse Solicitors</a>.  Bronia Hartley is part of the Inquests Team at Parklane Plowden. Bronia’s profile can be accessed <a href="https://www.parklaneplowden.co.uk/our-barristers/bronia-hartley/">here</a>.  Reporting: <a href="https://www.bbc.com/news/articles/c20xzld3g47o">BBC</a>

Fresh Inquest into the Death of Jodey Whiting Concludes

The second inquest into the death of Jodey Whiting has concluded. The Senior Coroner for Teesside and Hartlepool, Clare Bailey, concluded that Ms Whiting took her own life following the wrongful withdrawal of her state benefits which precipitated a significant deterioration in her mental state.  Ms Whiting’s mother, Joy Dove, applied under s.13 of the Coroners Act 1988 for a fresh inquest into her daughter’s death. The application was initially rejected by the Divisional Court but was allowed by the Court of Appeal (<a href="https://www.coronersociety.org.uk/_img/pics/pdf_1679424246-944.pdf">Dove v HM Assistant Coroner for Teesside and Hartlepool [2023] EWCA Civ 289</a>).   The Court of Appeal’s decision made clear that:  <ul class="wp-block-list"> <li>the discretion as to an inquest’s scope remains with the coroner.</li>  <li>whilst the touchstone of causation is important, when setting their investigation’s scope, it is still for the coroner to decide what ‘by what means’ actually means for each inquest.</li>  <li>when addressing the ‘how’ question a coroner may, and in some cases should, in the exercise of their discretion, go beyond a bare determination of the mechanism of death. A more detailed exploration of causation may be required to meet the interests of justice.</li>  <li>causation in the context of an inquest means making a material (i.e., more than trivial) contribution, of which there must be evidence.  The subjective opinion of the family is not evidence and will not suffice without more. </li>  <li>where it is said that the state of mind of someone who killed themselves was contributed to by their partner’s infidelity, the interests of justice are not likely to require the affairs of individuals to be investigated in public at an inquest.  However, where the shortcomings of a public body are said to have contributed to a deterioration in mental health, it is harder to see why a coroner would exercise their discretion so as to ignore this factor.</li>  <li>even where Art 2 is not engaged, the bereaved family and the public have a legitimate interest in knowing how public bodies’ actions impact on citizens’ mental health.</li> </ul>  Bronia Hartley is part of the Inquests Team at Parklane Plowden. Bronia's profile can be accessed <a href="https://www.parklaneplowden.co.uk/our-barristers/bronia-hartley/">here</a>.

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

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

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

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

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

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

Pathfinder Launch – 16th May 2025

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

Private Children Law Update May 2025

Katherine Goss and Richard Harrington, family law barristers at Parklane Plowden chambers were invited to speak at the West Yorkshire Local Family Justice Board annual Private Law conference on 16 May 2025. Among the delegates were key stakeholders in Family Law in the region including members of the judiciary, lawyers, social workers, Cafcass and domestic abuse workers. Law students from the University of Law which sponsored the event were also in the audience. Katherine and Richard provided the following Private Law update:  We began by exploring the judicial approach to fact-finding hearings in private law proceedings, particularly where serious allegations of domestic abuse have already led to criminal convictions. Mrs Justice Lieven and Cobb J in several cases have previously emphasised that the family court is not there to forensically examine relationship breakdowns but instead to make welfare decisions in respect of the child. Reliance on written evidence, including the parents’ witness statements, CAFCASS reports and probation reports, can be sufficient to proceed straight to the welfare stage. The guidance is clear: fact-finding hearings should only be held where necessary and proportionate, and not as a default step.  We then examined the significance of judicial caution in progressing contact where a fact-finding hearing is pending. The Court of Appeal in E, F And G (Interim Child Arrangements) [2024] EWCA Civ 874 made clear that relaxing contact arrangements in the face of unresolved allegations contradicts Practice Direction 12J. Judges must not prematurely 'test out' unsupervised contact prior to a fact-finding hearing as it creates an unmanageable risk.  In T & O, Re (Appeal: Fair Hearings: Delegation of Judicial Functions) [2024] EWHC 2236 (Fam), Henke J disapproved of delegating decisions to an independent social worker as to how unsupervised contact was to progress without there being a proper opportunity for the other party to amount a challenge to the same. The court held that discretion as to how contact progresses must remain a judicial function. Similarly, in M (Children: Contact in Prison) [2024] EWCA Civ 1104, Peter Jackson LJ criticised a High Court decision that permitted prison visits and contact without there being a robust welfare analysis, consideration of Practice Direction 12J, and the court not hearing evidence from Cafcass who did not support such visits.  We then turned to the emerging framework to understand why children resist or refuse contact. We discussed the AAA–AJR–AV–PB–RRR model: Attachment, Affinity, Alignment; Appropriate Justified Rejection; Alienating Behaviours; Protective Behaviours; and Reluctance, Resistance, or Refusal. These categories assist courts in identifying the reasons behind contact breakdowns and in avoiding default findings of alienation. It was noted that proving alienation requires clear evidence of the child's resistance, that the resistance is not justified by the conduct of the contact-seeking parent, and that the other parent has engaged in direct or indirect manipulation. These are hard to prove and rare.  The discussion moved on to the importance of third-party evidence: communications between parties, school records, medical notes, and professional interactions all form part of the evidential picture. Wishes and feelings reports must be treated with caution, particularly where there may be influence or pressure on the child.  We also addressed shared care orders, focusing on the case of AZ and BX (Child Arrangements Order: Appeal) [2024] EWHC 1528 (Fam). Poole J confirmed that when the court is asked to determine whether to make a live with or spend time with order, it is not merely a question of labelling and rather, it is relevant welfare consideration; for example, a live with order would provide a father with parental responsibility. Poole J confirmed that that the key welfare advantages of making joint live with orders were 1) it prevents one parent believing they are more important than the other parent and controlling the arrangements, 2) it puts both parents on an equal footing as to holidays abroad, 3) it signals to both parents the equal value each have in the child’s life, 4) and signals to the child that each parent has the same inherent importance.  Finally, we discussed the use and limits of Section 37 of the Children Act 1989. In Re E (Section 37 Direction) [2025] EWCA Civ 470, the Court of Appeal held that Section 37 directions can only be made in relation to subject children, i.e., those already part of or directly related to the current proceedings. There is no power of the court to direct a Section 37 investigation into non-subject children.  In summary, the day’s discussion emphasised proportionality, evidence-based decision-making, and clarity of purpose in family proceedings. Whether discussing fact-finding, alienation, contact, shared care, or Section 37 orders, the golden thread remains the welfare of the child.

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