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Ashes, Funerals, and Family Conflict

Read v Hoarean [2024] EWHC 3274 (Ch)  There is no right of ownership in a dead body and disputes can, and regularly do, arise over funeral arrangements and the final resting place of the body or ashes of a loved one. These disputes can be particularly fraught when the Deceased was a child and the parents cannot agree.  In Read v Hoarean, the Deceased was 18 years old when he took his own life in 2024. As the Deceased died unmarried, without children, and intestate, the persons with the right to call for his body to arrange the funeral and proper disposal were his parents<a id="_ftnref1" href="#_ftn1">[1]</a>. His parents were separated and did not enjoy a good relationship, having been involved in protracted and hostile litigation in the family courts when the Deceased was younger. At the time of his death the Deceased was experiencing mental health difficulties and was living in assisted living. He enjoyed a close relationship with his father but had had no direct contact with his mother since 2016.  The parents were agreed as to the location of the funeral and that the Deceased should be cremated but could not agree over the identity of the funeral director or what should happen to the ashes. The father wished the ashes to be scattered on Dartmoor. The mother wanted the ashes to be divided between the parents so that she could inter her half in her family’s grave. The mother’s position was set out in the judgment:  She said that she could not see why dividing the ashes would be disrespectful, she just simply could not see why, because he was equally part of both of them, and if his ashes were scattered they would be lost to the wind, that she cannot go and say goodbye to her son, so that is why she proposed that there be two ceremonies and that Theo’s ashes be divided equally between the parents so, as she describes, each got what they want.  The father considered that the division of ashes was morbid and disrespectful and it was noted that “he plainly felt very strongly about this”. The father agreed that there should be two funeral services.  Having reviewed a number of cases, Chief Master Schuman concluded that body disputes are highly fact sensitive, but that in considering the wishes of the Deceased, their family, and friends, and the location with which the Deceased was mostly connected, the overarching principle is that there should be a decent and respectful disposal of the body without undue delay.  Having heard evidence from both parents and read witness statements from other witnesses including the Deceased’s friends and wider family members, Chief Master Shuman concluded that she did not know what the Deceased’s wishes were, but that the Deceased had close connections and a feeling of peace when at Dartmoor. Chief Master Shuman therefore ordered that Letters of Administration limited to dealing with the disposal of the Deceased’s body and thereafter his ashes should be made to the father. It was further ordered that the mother should be permitted an opportunity to spend time with the Deceased before the cremation, and that some personal items belonging to the Deceased should be given to the mother. If the mother and father could not agree on the funeral, the mother was to be permitted to have her own service beforehand.  The practical effect of the order was that the ashes were not to be split, although the Master made no specific comment on this issue, or on the case of Fessi v Whitmore<a href="#_ftn2" id="_ftnref2">[2]</a>, to which the Master referred, where Judge Boggis QC rejected splitting the ashes of a 12 year old child between his parents, describing the submission as “wholly inappropriate”.  Comment  The compromise of holding two funeral services is one I see regularly in practice, along with an agreement that one party will hold a funeral before the burial/cremation and another party will hold a memorial service afterwards. But disputes over ashes can be much more difficult to resolve.  In Read, the parties aired their arguments about what should happen to the ashes before the cremation, and in granting the father the right to Letters of Administration pursuant to s.116 of the Senior Courts Act 1981/the inherent jurisdiction of the court, the court settled the issue by determining that the father was the party who could scatter the ashes. But many ashes disputes arise only after the cremation (sometimes years later) by which time of course the body has already been disposed of and there is usually one party in possession of the ashes.  Although it has been clearly established for many years that there is no right of ownership to a dead body, the position with ashes is not as clear cut, and ashes have been deemed by the court to be property which can be owned. In the Australian case of Leeburn v Derndorfer<a id="_ftnref3" href="#_ftn3">[3]</a> Byrne J, sitting in the Supreme Court of Victoria said,  “Moreover, so long as they are not dispersed or otherwise lose their physical character as ashes, they may be owned and possessed. To my mind, therefore, it is apt to characterise the legal status of the ashes as similar to that of the preserved body in Doodeward v Spence<a id="_ftnref4" href="#_ftn4">[4]</a>. In this way the application of fire to the cremated body is to be seen as the application to it of work or skill which has transformed it from flesh and blood to ashes, from corruptible material to material which is less so. The legal consequence of this accords with what I apprehend to be the community attitude and practice. Ashes which have in this way been preserved in specie are the subject of ordinary rights of property, subject to one possible qualification. In this way, ownership in the ashes may pass by sale or gift or otherwise. The only qualification, which, if it exists, may require some working out, arises from the fact that the ashes are, after all, the remains of a human being and for that reason they should be treated with appropriate respect and reverence.”  Byrne J then concluded that the executors held the ashes as trustees for the “purpose of disposing or dealing with them in a way that seems to them to be appropriate having regard to any direction of the deceased in the will or otherwise and having regard to the claims of the relatives or others with an interest.”  The conclusion reached by Byrne J, that the process of cremation has the result of transforming the ashes into property, was followed by DJ Marin in DP v JCP<a href="#_ftn5" id="_ftnref5">[5]</a> who held that an executor in possession of ashes holds them on trust for the purposes of the family disposing of them, and Judge Boggis QC in Fessi determined the ashes dispute on the basis that the court was being asked to resolve a dispute between two trustees.  It can therefore be seen that disputes over ashes which arise subsequent to the cremation are not going to be resolved by making a s.116 application to appoint a Personal Representative, but will be proceedings under CPR 64 for determination of an issue arising out of a trust.   Nicola Phillipson TEP  February 2025  Nicola Phillipson is a barrister at Parklane Plowden Chambers specialising in Probate, Inheritance, and Trusts, and is the author of <a href="http://www.lawbriefpublishing.com/product/controlofthebodyafterdeath/" target="_blank" rel="noreferrer noopener">A Practical Guide to the Law in Relation to Control of the Body after Death (Law Brief Publishing)</a>  <figure class="wp-block-image size-full is-resized"><img src="https://www.parklaneplowden.co.uk/app/uploads/2025/02/image.jpeg" alt="" class="wp-image-10766" style="width:57px;height:auto"/></figure>  <hr class="wp-block-separator has-alpha-channel-opacity"/>  <a href="#_ftnref1" id="_ftn1">[1]</a> Rule 22 of the Non-Contentious Probate Rules 1987  <a href="#_ftnref2" id="_ftn2">[2]</a> [1999] 1 FLR 767  <a href="#_ftnref3" id="_ftn3">[3]</a> [2004] WTLR 867c  <a href="#_ftnref4" id="_ftn4">[4]</a> [1908] HCA 45; (1908) 6 CLR 406 at 412, per Griffith CJ.  <a href="#_ftnref5" id="_ftn5">[5]</a> [2010] COP 11692737

Consensual Adoption – PLWG Best Practice: A Guide

And so it was, the final article in my series covering the Public Law Working Group’s recommendations for best practice for adoption. For the final part of the series, we consider Chapter 5 of the report. This section takes a look at adoptions which are processed and ordered by the consent of the biological parent/s, that is, where the parents agree to the child being placed for adoption, or being adopted by a specific individual.  Whilst adoption by consent is an issue which, on the board of adoption matters generally, takes up a small place, it is a vitally important area. The decision to relinquish a baby is a significant and life-changing choice – currently, the availability of expert and professional services to respond to these cases is limited at best.  As with previous articles in the series, this follows the general chronology and sub-headings of the report to ensure consistency and to break the report down into a bite sized and user-friendly guide as to the recommendations.   Introduction  From 1926, those who cared for a baby who was not their biological child, could acquire an adoption order resulting in those carers legally being seen as birth parents. The 1926 Act ensured that consensual adoption was clearly focused on the child’s welfare and the consent was given fully informed and without reward or payment.  The Act significantly increased the number of children who were adopted, but the societal issues surrounding women becoming pregnant before marriage continued with full force. There were no measures in place to support such women, or even the children.  A 2022 report by the Joint Parliamentary Committee on Human Rights for the years 1949-1976 resulted from the testimonies of women who had their lives damaged by the pressures to ‘give up their baby’ for adoption. As the report summarises:  “Many young women were sent away from home to conceal their pregnancy, and many spent their final weeks of pregnancy and weeks after the birth in mother and baby homes. Some of our witnesses recounted the abuse they faced whilst away from home. We were struck by descriptions of the ways in which the women were being “punished” for what was seen as a transgression. There was an overwhelming feeling amongst the mothers we heard from that their treatment during and after giving birth was deliberate punishment for their pregnancy while unmarried”  Over the years, support increased for single parents, and the pressure on mothers to ‘give up their babies’ for adoption reduced. By the 1980’s, adoptions fell by over half. As of 2015, the number of children being adopted from care hit a high of 5360 and have since reduced continually.  A significant reason for this reduction includes the Supreme Court case of Re B [2013] UKSC 33 and the clarification provided thereafter in Re B-S (Children) [2013] EWCA Civ 1146 – producing the phrase all within the adoption sphere are aware of, “nothing else will do.”  That being said, the PLWG note that:  “Although the numbers are not large, there remains a steady number of cases where birth mothers (sometimes supported by the birth father) seek to relinquish the baby for adoption at birth. A number of these cases involve families who are foreign nationals.”  The aim of the subgroup was to look at this marginal, yet societally and practically complex issue.   Legal Framework  s.19 of the Adoption and Children Act 2002 (“ACA 2002”) sets the framework for consensual adoptions:  “(1)Where an adoption agency is satisfied that each parent or guardian of a child has consented to the child— (a) being placed for adoption with prospective adopters identified in the consent, or (b) being placed for adoption with any prospective adopters who may be chosen by the agency, and has not withdrawn the consent, the agency is authorised to place the child for adoption accordingly.”  The child’s welfare remaining a considerable factor.  Despite being a consensual process, there remains a significant role for the adoption agency. When a parent approaches an adoption agency to relinquish their child, that agency must offer counselling to explore the options and to understand the process and consequences. Such referrals can come from the mother, the hospital, or a family member or community individual.  Some mothers will not engage in the process, occasionally leaving the hospital alone and avoiding further contact (it is vital to note that no judgment is, or should be, cast upon such mothers, the circumstances and thinking of such women are unlikely to ever be known by any professionals – for most, the decision is as child centred as they come).  Where counselling is engaged in, the Working Group are clear that:  “This requires both experience and expertise and time and resources from the professional providing that counselling as well as sufficient support being available to the professional to ensure the highest quality of practice in enabling these life changing decisions.”  Given the re-structuring of adoption services through Regional Adoption Agencies, uncertainty has developed around who is responsible for certain services. It may not be clear to families who to contact, especially at a time of such struggle, when timeliness is so key.  In 2021, over 200,000 pregnancies were terminated, with the rates for those under 18 dropping. Many professionals are clear that, in a significant number of cases, mothers seeking to relinquish their baby only became aware of their pregnancy late in term. As Mr Justice Holman stated in Z County Council v R [2001] 1 FLR 365:  “Adoption exists to serve many social needs. But high among them has been, historically, the desire or need of some mothers to be able to conceal from their own family and friends, the fact of the pregnancy and birth. So far as I know, it has not previously been suggested, nor judicially determined, that that confidentiality of the mother cannot be respected and maintained. If it is now to be eroded, there is, in my judgment, a real risk that more pregnant women would seek abortions or give birth secretly, to the risk of both themselves and their babies… There is, in my judgment, a strong social need, if it is lawful, to continue to enable some mothers, such as this mother, to make discreet, dignified and humane arrangements for the birth and subsequent adoption of their babies, without their families knowing anything about it, if the mother, for good reason, so wishes.”  In Re A, B and C (Notification of Fathers and Relatives) [2020] EWCA Civ 41, the court grappled with the question of whether fathers should be notified of cases where the mother seeks to relinquish their child. The Court of Appeal set out the principles governing such decisions.  <ol class="wp-block-list"> <li>The law does provide for ‘fast-track’ adoptions where all those with parental responsibility consent. The mothers Article 8 rights can only be infringed where necessary.</li>  <li>The nature of adoption is capable of justifying the overriding of those rights, but turns on each case.</li>  <li>The decision is one which requires priority, urgency, and thoroughness.</li>  <li>The Judge must establish the facts as clearly as possible. The reasons for such relinquishments must be treated respectfully, but their account must be scrutinised given it is one sided, as such, as much information should be gathered without breaching confidentiality.</li>  <li>There must be struck a fair balance between those interests involved, with the welfare of the child being important, but not paramount.</li>  <li>There is no single test for all cases, but key themes will be relevant: <ul class="wp-block-list"> <li>Only where compelling should a father who holds parental responsibility not be notified.</li>  <li>The more established the family life (Article 8), or potential such rights, the stronger the reasons to withhold notification.</li>  <li>The substance of the relationships between interested persons must be assessed, ensuring those who are silent are given a voice. Essentially, if their voice were known, what may the person say.</li>  <li>Is there a realistic family placement. If there clearly no viable placements via the father’s family, the need to maintain confidentiality are strengthened.</li>  <li>The impact on the mother is key. Where she would be at serious risk (such as sexual assault or honour based violence) this must weigh heavily. However, short term difficulties must not prevail.</li>  <li>Cultural and religious factors must be considered, particularly where these connections may be important for the child as they grow.</li>  <li>A mother cannot be forced to provide confidential information, including the details of the father. The court must consider the likelihood of the confidential information becoming known at a later date.</li>  <li>Whether notification will delay the outcome for the child, whilst not a key factor, it is important to consider the impact such delay may have.</li>  <li>All other relevant matters, axiomatically, are relevant.</li> </ul> </li> </ol>  Despite the clear guidance from the higher courts, there remains an issue of the procedure not being complied with; in A Local Authority v C , M and The Prospective Adopters [2023] EWFC 17, by the time of final order, proceedings had lasted 20 months. Such cases are, of course, very difficult and, as noted by the Working Group:  “…there is a risk that pregnant women who face very high hurdles in placing the baby for adoption may choose not to cooperate with the local authority or worse still to give birth in secret.”  Similarly to adoption agencies, CAFCASS also play a significant role in consensual adoption. CAFCASS have issued thorough guidance on good practice in these cases, notably, this sets out the information which should be provided to birth parents in reaching a decision about the child’s future and ensuring that the decision is made such that it can be implemented lawfully with the future consequences being fully addressed.  The PLWG note that:  “Birth parents considering adoption, need to have access to independent legal advice in order to fully understand their rights and options, including the short and long-term consequences for them and their child (and indeed other children that they may have). For those unable to pay, public funding is very restricted however, costs can be covered by the Regional Adoption Agency or local authority.”   Recommendations  Given the marginal nature of consensual adoption, the recommendations of the Working Group are similarly slim, however, the issue is an exceptionally important one and it is vital that decision making is properly informed and progressed properly. As such, the PLWG recommend that:  <ol class="wp-block-list"> <li>There must be focussed training for adoption workers on relinquishment cases. Given these situations are rare, when they do arise, there is often nobody experienced able to deal with them.</li>  <li>There should be a national strategy for relinquishment cases, with agencies establishing clear plans and principles.</li>  <li>Where possible, pre-birth planning should take place, this could include the need to apply to the courts as early as possible.</li>  <li>Early Permanence Placements should be considered for babies relinquished at birth.</li>  <li>There should be regional hubs created to provide information and expertise to parents, with longer terms support being available, including, where appropriate, securing the maintenance of relationships between the child and birth parents.</li>  <li>The consent forms which are signed by parents should be reviewed to ensure they are as clear and as straightforward as possible.</li>  <li>Legal aid should be available for parents considering relinquishing their baby. This should be available both before and after birth.</li> </ol>   Consultation Replies  “The consultation responses were diverse in their focus and comprehensive in their recommendations. It is clear that a number of the issues identified in the responses were seen to be a priority.”  Challenges to the current adoption system include: modernising contact post adoption; the proper processing and availability of access to adoption records; and the pressures on adoption professionals, including financial constraints on the public sector.  With respect to adoption by consent, the responses identified a fall in referrals regarding unplanned pregnancy. This fall appears to result from a) a reduction in women coming to the UK from Europe; and b) women at university accessing effective contraception and/or abortion services.  Unplanned pregnancies are a stressful experience and can cause a significant crisis for the women and those around her, including the father. There are also practical concerns, notably income, housing, and lifestyle changes. Most importantly, of course, are the needs of the child and their experiences.  The limited number of cases is having a noticeable impact on the availability of quality services where such cases do arrive, given the ability to adoption services to develop clear expertise in this area is low. The PLWG reports that adoption judges in Birmingham responded to the consultation, noting that:  “We see relatively few applications for adoption by consent. Our experience in Birmingham is the same as elsewhere in that social work managers are under considerable pressure. In addition, social work managers are often relatively inexperienced, compared to 10 years ago […] There are a small number of cases. We agree that as a result, there are limited opportunities to build expertise.”  This reinforces the need for focussed training for social workers and CAFCASS to be able to deal with consensual adoption cases. It is important to remember that, at the centre of each case, are the individual women faced with such life-changing issues, this demands expert professionals.  The absence of localised expertise and experience is significant, this requires coordinated practice improvement across the board, to ensure that services are able to provide:  <ul class="wp-block-list"> <li>Individualised information</li>  <li>Services which enable workable solutions for the families</li>  <li>Legal support</li>  <li>Healthcare support</li>  <li>Practical support</li> </ul>  As noted by the Working Group, this is a serious challenge, but:  “…a humanistic society does have a duty to provide support in finding workable solutions for individuals faced with life changing circumstances, both mother and baby.”   Conclusion  The PLWG’s recommendations on consensual adoption highlights the need for a more structured, supportive, and informed process for birth parents who choose to relinquish their child for adoption, whatever the reasons may be. While such cases are relatively rare, they are nonetheless important and present unique challenges that demand specialist knowledge and careful handling to ensure that both the rights of the parents and the welfare of the child are properly safeguarded. The report’s proposals focus on improving the accessibility of information, enhancing professional expertise, and ensuring that decision-making is fully informed and lawfully implemented.  The overarching recommendation is the need for dedicated training for adoption professionals, given the infrequency of these cases. Without a pool of experienced practitioners, the risk of procedural missteps and inadequate support increases (a matter we see more routinely with international cases). Establishing regional hubs and national strategies would provide a more consistent and reliable framework, ensuring that those faced with the life-changing decision of relinquishment receive expert guidance, legal support, and practical assistance, or those dealing with such cases able to access specialist oversight.  The issue of parental consent in adoption is particularly sensitive, requiring careful balancing of the mother’s right to privacy with the need to ensure that all relevant parties, including the father and extended family, are considered. The case law underscores the importance of a fair and thorough assessment, ensuring that mothers who wish to maintain confidentiality are afforded appropriate protections while still prioritising the child’s long-term welfare. The provision of early permanence placements and clearer consent forms would further streamline this process, reducing delays that can be distressing for both birth parents and prospective adopters.  A central concern is the lack of accessible and independent legal advice for parents considering relinquishment. The recommendation that legal aid should be available both before and after birth is an essential and logical step towards ensuring that parents can make informed decisions without financial barriers or this additional worry. Without this safeguard, there is a risk that decisions may be made without a full understanding of the consequences, leading to potential legal challenges or later distress for birth parents and children alike.  Although consensual adoptions form a small proportion of adoption cases, their significance cannot be overstated. The decision to relinquish a child is profound, and the adoption system, especially practitioners, simply must be equipped to provide the necessary legal, emotional, and practical support to all those involved. The Working Group’s recommendations, if implemented, would create a more robust system that respects the rights of birth parents while ensuring that every adopted child has the best possible start in life.

Clarifying a conclusion of unlawful killing: R (Glaister & Carr) v HM Assistant Coroner for North Wales [2025] EWHC 167 (Admin)

Benjamin David Leonard was only aged 16 when he fell to his death from the Great Orme, North Wales, while on an Explorer Scout weekend away in August 2018. The weekend away was supervised by volunteer scout leaders, including the Claimants in this judicial review claim, Mr Glaister (Explorer Scout Leader) and Ms Carr (Assistant Explorer Scout Leader).  On a walk up the Great Orme, the group became separated, with Ms Carr leading and assuming Mr Glaister would round up Benjamin and two other scouts.  Mr Glaister did not see them at any stage. Ms Carr saw Benjamin at the top on the grassy hills. She did not ask him to re-join the group. There had been no risk assessment conducted for the activity. Benjamin, in the hope of making it down the mountain more swiftly, followed animal tracks to the cliff edge and fell, suffering a brain injury.  The inquest was not straightforward; it involved two failed attempts in 2020 and 2022. When it eventually proceeded, it involved ten interested parties (including Mr Glaister and Ms Carr), 32 hearing days, live evidence from 20 witnesses and even a hearing held on a Sunday.  Finally, in August 2024, the inquest ended with the jury recording a conclusion of “unlawful killing by the Explorer Scout Leader and Assistant Explorer Scout Leader contributed to by neglect of the Scout Association”.  Mr Glaister and Ms Carr brought claims by way of judicial review against the Assistant Coroner for North Wales culminating in this decision of the High Court.  The conclusion of unlawful killing  The case focussed around three of the six elements required for gross negligence manslaughter as outlined in R v Broughton [2020] EWCA Crim 1093 at paragraph 5:  <ul class="wp-block-list"> <li>Element (iii): establishes a threshold of “serious and obvious risk of death” at the time of breach. “An obvious risk is one that is present, clear, and unambiguous. It is immediately apparent, striking and glaring rather than something that might become apparent on further investigation”.</li> </ul>  <ul class="wp-block-list"> <li>Element (iv): it must have been reasonably foreseeable at the time of the breach of the duty, that the breach gave rise to a serious and obvious risk of death.</li> </ul>  <ul class="wp-block-list"> <li>Element (v): the breach of duty caused or made significant contribution to the death of the victim.</li> </ul>  Justice Fordham also considered R v Rose [2017] EWCA Crim 1168, which establishes thata “serious and obvious risk of death” must exist, and is to be assessed with respect to knowledge, at the time of the breach of duty. Therefore, information that the Claimants would have been aware, had they performed the duty that they breached, is excluded. Taking such information into account has been described as falling into “the Rose Trap”.  The Court also referred to R v Kuddus [2019] EWCA Crim 837 which clarifies that a foreseeable chance that risk of death might arise is not sufficient to establish a “serious and obvious risk of death”.  Serious and obvious risk of death does not require “imminence”  Both Claimants submitted that the only thing that gave rise to a foreseeable serious and obvious risk of death, was the action of Benjamin going near to the steep cliffs. They argued that prior to that point, there could be nothing more than a Kuddus chance of risk. As there was no evidence that either Claimant had been aware that Benjamin was near to the cliff at a time they could have intervened, they argued that unlawful killing could not reasonably be left to the jury.  Justice Fordham did not agree that a “serious and obvious risk of death” could only arise when Benjamin was near to the cliffs. He determined that the Claimants’ analysis incorrectly introduced imminence into the threshold of “obvious and serious risk of death”. Justice Fordham did not agree that imminence was already required by case law, and nor could he see the logic of introducing it.  Obvious information avoids the Rose Trap  The Claimants also contended that the evidence could not support a finding by a properly directed jury of reasonable foreseeability of serious and obvious risk of death without falling into the Rose Trap.  In relation to Mr Glaister, the Court found that on a possible view of the facts, his conduct regarding planning and instruction as Scout Leader meant that a finding of unlawful killing could safely be left to the jury. Likewise, in relation to Ms Carr, the conclusion could safely be left to the jury based on her conduct when she saw Benjamin and the other scouts on the grassy tops prior to Benjamin’s fall.  Justice Fordham considered that it was not necessary to attribute them knowledge in respect of what would or would not have been known at the time of the breach of duty, because the dangers posed by the terrain of the Great Orme were obvious to them. Thus, the Rose Trap was avoided.  The question of anonymity on the Record of Inquest  Both Claimants sought to quash the wording of Section 4 ROI which identified them by their roles as “Explorer Scout Leader” and “Assistant Explorer Scout Leader”. They submitted that their identification was contrary to s.10(2) Criminal Justice Act 2009, which prohibits the determination of how, when and where the deceased came by their death being framed in a way that would determine, or appear to determine, any question of criminal or civil liability on the part of a named person.  Justice Fordham found against the Claimants in this respect. He considered that the Claimants’ arguments would require the Assistant Coroner, in some circumstances, to require deliberate ambiguity where the jury reaches a conclusion for unlawful killing. The Court concluded that the law does not mandate ambiguity but allows clarity.  Justice Fordham further emphasised that an inquest is not about apportioning blame, it is about full and fearless fact-finding. This means that there will be occasions that require the naming of identifiable individuals against whom a finding of unlawful killing relates, as in this case. Even when that does happen, the inquest has not determined criminal or civil liability against that person, and the public should be expected to understand that.  Conclusion  The Court’s consideration of the lawfulness of directions and summing up to the jury have not been addressed in this short summary. Suffice to say, although not perfect, Justice Fordham could not find any reasons that the Assistant Coroner’s directions or summing up to the jury were so deficient as to render the jury’s conclusions on unlawful killing unsafe.  For that reason, and the reasons outlined above, the claims for judicial review failed.  Judgment available <a href="https://www.judiciary.uk/wp-content/uploads/2025/01/Glaister-Carr-AC-2024-MAN-000186-Fordham-J-approved-judgment-for-hand-down-30.1.25-approved.pdf" target="_blank" rel="noreferrer noopener">here</a>.

Not “On a DOLS” – Court of Protection Clarifies Terminology

Bury Metropolitan Borough Council v EM & Ors [2024] EWCOP 76 (T2)  Avaia Williams, a first six pupil under the supervision of Sara Anning and Rebecca Musgrove, looks at the judgment in Bury Metropolitan Borough Council v EM & Ors [2024] EWCOP 76 (T2) and discusses the consequences of complacent terminology.  The full judgment (which merits reading in its entirety) can be found <a href="https://caselaw.nationalarchives.gov.uk/ewcop/t2/2024/76?court=ewcop" target="_blank" rel="noreferrer noopener">here</a>.  In Bury Metropolitan Borough Council v EM & Ors [2024] EWCOP 76 (T2), the Court of Protection considered the care arrangements for an 18-year-old woman, Emma (“EM”), addressing issues of capacity, best interests, and the implications of terminology surrounding deprivation of liberty orders. The case also explored the Local Authority's handling of proceedings and compliance with court orders, resulting in an adverse costs order against the LA.  This article focuses only on this judgment in so far as it relates to terminology, however, the judgment serves as a key reminder to Local Authorities on the issue of compliance and should be a warning to all authorities that the Court of Protection can, and will, make adverse costs orders where necessary.   Background  Emma, an 18-year-old with autism and ADHD, presented with a history of severe self-harming behaviours and mental health crises. After escalating incidents of self-harm in early 2023, she was detained under Section 2 of the Mental Health Act 1983 and later transitioned to a care placement to address her complex needs. The placement involved 24-hour supervision, significant restrictions, and interventions for her safety.  Following Emma’s transition into adult care, her capacity to make decisions regarding her residence and care came under scrutiny. Proceedings were initiated in the High Court in August 2023 to authorise care plans under the inherent jurisdiction. These proceedings transitioned to the Court of Protection after Emma turned 18. Throughout the case, Emma expressed a desire for less restrictive care arrangements, though concerns about her fluctuating capacity and safety risks persisted.  The Local Authority sought to withdraw Court of Protection proceedings and discharge orders authorising Emma’s deprivation of liberty on the basis that her placement could continue without such authorisations. The Official Solicitor, acting as Emma’s litigation friend, raised concerns about the LA's compliance with previous court orders, its understanding of care planning, and its reliance on the term “on a DOLS.”  Emma’s psychiatrist emphasised her fluctuating capacity and the need for therapeutic care planning, noting Emma’s progress and her stated preference for fewer restrictions. However, inconsistencies in the LA’s approach to care planning and communication exacerbated delays and confusion.   The Law & Judgment  A key issue to the case was Emma’s capacity, or lack of. As noted by Emma’s psychiatrist, her capacity and ability to make relevant decisions fluctuates. Whilst this point, is not the crux of this article, or the ‘interesting’ element to have come out of the case, what the Court said on the point is of interest, noting that:  “It was not clear to the Court whether in fact EM was still in a crisis during which her capacity to make relevant decisions was absent, at least some of the time. In such circumstances the Court needs to understand the nature of the fluctuating capacity, what triggers it and what is the scope of the incapacity when triggered.”  The Court pointed out that the difficulties with such cases are well illustrated in Leicestershire County Council v P & NHS Leicester, Leicestershire & Rutland ICB [2024] EWCOP 53 (T3), a judgment which had not been reported at the time of the hearing in Emma’s case.  The Court approved the plan being sought, but Judge Burrows criticised the Local Authority for its misunderstanding on the legal framework with respects to deprivation of liberty cases. It was noted that, DoL or DoLs refers to the wording of Article 5 of the ECHR, as an acronym for “Deprivation of Liberty”. DOLS on the other hand refers to Schedule A1 of the Mental Capacity Act 2005, and is in reference to the Deprivation of Liberty Safeguards.  As such, as stated by the Judge:  “Emma is therefore subject to an order that authorises her deprivation of liberty, which could be called a DoL or DoLs order. She is not on a DOLS.”  On this, the Judge further explained that being deprived of one’s liberty needs to be authorised as part of a care plan. This can be pursuant to Schedule A1 (the DOLS) where a person aged over 18 is detained, or pursuant to ss.15 and 16 of the MCA where the person is under 18 or somewhere other than a hospital or care home.  The fact that Emma’s case was dealt with by way of the inherent jurisdiction meant that her liberty was deprived outside the statutory regime, thus meaning she was subject to a DoL order (again, not DOLS). The terminology is a key point, as Judge Burrows explained, the expression to be “on a dol”:  “…whilst perfectly legitimate abbreviations, must be understood properly and within that context. To be “on” or “under a dol” means to be subject to an order (or authorisation) approving and authorising a care plan which allows the carer to use restrictions that amount to a deprivation of liberty in the best interests of P. Clearly, the emphasis here is on the care plan itself and not the legal status of the restrictions that can be used.”  As a key point, the Court pointed out that:  “Unfortunately, when the Court authorises such a care plan that amounts to a “dol” it is seen as being mandatory, like the Court has imposed a prison sentence.  …  It is important to emphasise though that the care plan is King here”  It is Emma’s care plan, not the court’s authorisation, which determines the nature of her restrictions. If those involved in her care are able to devise a care plan which does not require a deprivation of liberty, then the court will authorise it. Similarly, if the care plan requires the possibility of a deprivation, this will be authorised, but it is not prescriptive of what must happen.  This led to confusion in Emma’s case. The Local Authority were under the impression that, the only way that Emma’s care plan could evolve such that she could move into the community or not be under such restrictions would be to “have the dols lifted”. As the Court put it:  “This is incorrect. If the LA devises a care plan whereby Emma can move to another place where she will not be deprived of her liberty, there will be no need for the Court to authorise her deprivation of liberty. If a plan is devised at her present placement that does not amount to a deprivation of Emma’s liberty, the Court will not need to authorise one.”  The Judge, clearly expressing concern around such applications, pointed out that, by virtue of focusing so heavily on whether a person is subject to a DoLs order or “on a dol”, that person is lost sight off, they are simply either a person who is on a dol or not. With many people subject to a deprivation of liberty thus feeling forgotten about and put out of sight until the issue of DoLs is raised.   Commentary  Whilst not appearing to many to be an issue worth a significant part of a judgment, the terminology involved in these decisions, as with most court orders, is key. In the first instance, when terminology is the focus, those people involved in the cases are almost pushed aside and the focus is shifted solely to black letter. It becomes easy for practitioners to forget that there are real people at the heart of these cases. In the second instance, when terminology becomes the centre of focus, it is easy to stray from the actual position in law, requiring such decisions to correct the steer.  Parallels can be drawn with numerous areas of law. Rather than being Adam, he is “sectioned under the Mental Health Act.” Rather than being Jane, she is “on a Care Order.” And whilst these statuses in law are vital when it comes down to legal issues, these statuses should not cloud the fact that these people are people, with their own unique experiences and perspectives and thoughts and feelings and unique requirements when it comes down to their care and support.  The court underscored the critical role of accurate terminology and understanding in deprivation of liberty cases. The court’s dissection of the term “on a DOLS” highlights the need for precision to avoid misconceptions that could undermine the dignity and autonomy of individuals subject to restrictive care plans. The term “on a DOLS”, outside of being legally incorrect, also oversimplifies the nuanced process of authorising and implementing care plans; at their heart, these authorisations are ordering the approval to deprive somebody of their liberty where this is necessary in implementing a care plan, the court are not ordering that a certain course of action must take place. To put it simply, just because the court has authorised a person be deprived of their liberty, it does not mean that person must be deprived of their liberty.  Misconceptions about DoL orders can lead to the false perception that individuals are “locked up” by court mandate, rather than this being an option through their care plans and the decision of all those involved in their care, developed in their best interests.  This judgment, while specific to Emma’s case, offers valuable guidance for practitioners, notably those working on the front lines with individuals who are subject to DoL orders, navigating the complexities of deprivation of liberty care planning within the MCA framework.

Sara Sharif Judges to be Named – Court of Appeal Delivers Stinging Judgment

Tickle & Anor v The BBC & Ors [2025] EWCA Civ 42  Avaia Williams, a first six pupil under the supervision of Sara Anning and Rebecca Musgrove, summarises the Court of Appeal judgment in Tickle & Anor v The BBC & Ors [2025] EWCA Civ 42, the appeal concerning whether the historic judges involved in Sara Sharif’s family proceedings should be named.  The background to the matter concerns the tragic circumstances of the murder of Sara Sharif by her father and step-mother. Following her murder, several journalists sought information from the family proceedings and accordingly applied to the court for this disclosure.  A vast amount of material was disclosed, however, in making this order, Mr Justice Williams unilaterally made an order that the judges who had previously been involved in proceedings must not be named. This focused mainly on the Article 8 rights of the judges.  The decision was quickly appealed, and the decision, the first of its kind, was considered by the Court of Appeal who, in delivering a stinging and critical judgment, found that:  “…the judge had no jurisdiction to anonymise the historic judges either on 9 December 2024 or thereafter. He was wrong to do so…”  The Master of the Rolls further explained that:  “…He knew he had no evidence, and he could have realised that the judges would not wish to provide any evidence (as has happened). In short, the whole idea of anonymising the judges was, I have to say, misguided.”  The judgment is a significant moment in reaffirming the principle of open justice, particularly within the context of the family courts, still known for their overarching secrecy. The Court of Appeal’s decision emphasises the constitutional importance of transparency and accountability in judicial proceedings.  For the full summary and commentary, visit <a href="https://www.familylawweek.co.uk/judgments/tickle-anor-v-the-bbc-ors-2025-ewca-civ-42/" target="_blank" rel="noreferrer noopener">Family Law Week</a>.  The full judgment is available on <a href="https://www.bailii.org/ew/cases/EWCA/Civ/2025/42.html" target="_blank" rel="noreferrer noopener">BAILII</a>.

The Importance of Finalising Financial Matters with a Final Order in Divorce

Remember the case of Wyatt v Vince [2016] EWHC 1368 (Fam) - which underscored the importance of finalising financial matters with a final order or risk years of costly litigation and uncertainty? Kathleen Wyatt and Dale Vince had divorced in 1992, 19 years before Ms Wyatt filed for financial remedies in 2011. At the time of separation, Mr Vince led a modest “new-age” lifestyle, protesting against nuclear weapons and living as a traveller. He had no financial resources to support Ms Wyatt or their two children. By 2011, Mr Vince had remarried (Kate Vince ) and become a multimillionaire through his green energy business, prompting Ms Wyatt to file for a lump sum financial order.  Whilst the High Court (2012) dismissed Mr Vince’s strike-out application and ordered him to pay interim legal costs directly to Ms Wyatt’s solicitors the Court of Appeal reversed the High Court’s decision, struck out Ms Wyatt’s application, and ordered her to repay part of the interim costs received. The Supreme Court (2015) allowed Ms Wyatt’s appeal, reinstated her financial claim, and restored the original costs order. By 2016 the parties reached a modest award settlement of £300,000 and Cobb J confirmed that the final order settling the proceedings should be made public not only because the lives and financial circumstances of the parties had been trailed extensively in the public domain but also the fact that the parties were in the end able to reach a negotiated settlement without a trial. Fast forward to Round 2 - Cusworth J's decision in Vince v Vince [2024] EWFC 389 published on 17th Jan 2025. <a href="https://lnkd.in/dzr35cnn">https://lnkd.in/dzr35cnn</a> This chapter offers critical lessons for family practitioners in cases involving significant business assets. Kate Vince was awarded 50% of the matrimonial element of the value of her husband Dale Vince’s green energy business, recognising both her homemaking contributions during their 22-year marriage and the need to balance liquidity challenges with fairness. Key takeaways: • Business Valuation: 74.16% of the business was deemed matrimonial, reflecting the marriage’s duration compared to the business’ total timeline. • Pre- and Post-Marital Contributions: Whilst H's pre/post marital contribution was acknowledged it did not exclude the wife from sharing in the increased business value. • Donations and Resources: Significant political and charitable donations by H were scrutinised, with unspent funds added back to the valuation but no adjustment or add-back for those spent as they could not be deemed 'wanton'. No criticism either or add-back in relation to H's very generous gifting to his older children (unrelated to W) • Structured Payments: W’s £41.81m award will be paid in tranches with interest, balancing fairness and practicality. Vince (2) therefore underscores the approach of business valuations and equitable sharing in high-asset divorces.

Employment Law Update: Unreasonable Failure and Fire and Rehire Penalties

Today, on 20 January 2025, the first of the 2025 employment law reforms are coming into force. Penalties have been tightened for fire and rehire where there has been an unreasonable failure to follow the statutory Code of Practice on Dismissal and Re-Engagement.  What is fire-and-rehire?  Most commonly, fire-and-rehire is where employers serve notice on staff to terminate their current contracts, then re-hire them immediately on new terms and conditions. Employers may need to use fire and rehire when making changes to the employment contract. They may try to agree a change to the contract with the employee first and the employee refuses. The employer would then use fire and rehire as a last resort to secure the changes made without having the employee’s agreement to vary the contract. It is a unilateral variation of employment contract. Notice is necessary for dismissal. Some employers treat fire-and-rehire as giving notice of the changes to the employment. However, unless there is an explicitly clear clause permitting fire and rehire, then the re-engagement under the new contract may create issues.  The main issue is potential unfair dismissal claims. The employee may refuse to be re-engaged on the new terms. Alternatively, the employee may accept re-engagement but claim unfair dismissal from their old contract, even if they are re-employed by the same employer – Hogg v Dover College [1990] ICR 39.  Other issues arise where 20 or more employees are involved in changes to their employment contracts without the employer consulting with trade unions or elected worker representatives. The employer will be in breach of s.188 TULRCA 1992 – GMB v Man Truck & Bus (UK) Ltd [2000] IRLR 636. A failure to comply with s.188 may require employers to make a protected award of 90 days’ pay to employees.  Implied terms that employers will not use fire-and-rehire may be found, depending on the facts of the case – USDAW v Tesco Stores Ltd [2024] UKSC 28. The implied term in USDAW v Tesco was that Tesco could not dismiss employees for the purpose of removing the right to retained pay. Retained pay was ‘an individual contractual entitlement’, agreed to be ‘permanent’, ‘for life’ and ‘guaranteed’. An injunction restrained Tesco from dismissing any Affected Employee for reasons related to the removal or diminution of retained pay, directly or indirectly. This was a significant consequence for Tesco, albeit on a specific set of circumstances.  What is the Code of Practice on Dismissal and Re-engagement?  It is a formal code which will be considered by the Tribunal, often in unfair dismissal claims. A breach of the code will be admissible in evidence and shall be considered by the Tribunal where it is relevant (S.207 TULRCA 1992, effect of failure to comply with Code).  The code has 2 main provisions on fire and rehire:  <ol class="wp-block-list"> <li>The tactic should only be used as a last resort</li>  <li>The procedural pre-requisites must be followed by employers first before using it.</li> </ol>  Employers should not threaten dismissal if that is not their intention, nor if they seek to coerce employees to sign new terms and conditions.  The necessary procedural requirements are to:  <ol class="wp-block-list"> <li>Consult for as long as reasonably possible</li>  <li>Contact ACAS at an early stage before raising a matter with employees</li>  <li>If employees don’t agree, consider feedback</li>  <li>Review changes to assess if necessary.</li> </ol>  The code can be found here: <a href="https://www.gov.uk/government/publications/dismissal-and-re-engagement-code-of-practice">https://www.gov.uk/government/publications/dismissal-and-re-engagement-code-of-practice</a>.     What are the new changes to the Code?  The Code came into force in July 2024, as a proposal from the former Conservative government. The new Labour government intend to outlaw fire-and-rehire.   The changes have been incited by <a href="https://www.legislation.gov.uk/uksi/2024/1272/contents/made">The Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment of Schedule A2) Order 2024</a>.  Article 2 of the Order includes section 189 (failure to follow consultation requirements) to the list of tribunal jurisdictions to which section 207A applies.  The new provisions do not outlaw the tactic but have made penalties harsher with a 25% uplift on protective awards where s.188 applies. The intention is to encourage dialogue between employers and employees to explore options before unilateral dismissal and re-hiring on new terms.  Penalties will be issued for unreasonable failure to follow the statutory Code of Practice on Dismissal and Re-Engagement.  What is unreasonable failure?  The code is engaged as soon as the prospect of dismissal and re-engagement is raised. There is no distinct definition within the code, but it is likely to include the following actions:  <ul class="wp-block-list"> <li>Not engaging in open dialogue with employees or representatives</li>  <li>Not doing so in ample time</li>  <li>Not doing so in a transparent way</li>  <li>Not exploring alternatives before fire-and-rehire</li>  <li>Failure to follow collective consultation requirements under s.189 TULR(C)A 1992</li>  <li>No consideration to the number of employees concerned to determine collective redundancy obligations apply when seeking to change terms and conditions</li> </ul>  The Tribunal will assess ‘reasonableness’ by balancing the employee’s interests against the actions of the employer. It will likely be assessed in context.    However, it is not entirely clear what will constitute an unreasonable failure and it may cause potential problems for employees or employers attempting to prove a failure to comply with the code.   What are the penalties?  For an employer, the employment tribunal may increase any award it makes to the employee by no more than 25% where:  <ul class="wp-block-list"> <li>Section 207A of TULRCA applies</li>  <li>There is a relevant code of practice that applies</li>  <li>The employer has unreasonably failed to comply with it</li> </ul>  When only firing and rehiring one person, employees will only get the 25% increase. However, where more than 20 people are affected and the employer does not consult properly, the 90-day protective award may be ordered.  Employers may be ordered to pay the employee a protective award of up to 90 days’ gross pay and up to 25% of the same per affected employee where:  <ul class="wp-block-list"> <li>Section 188 of TULRCA applies</li>  <li>There is a relevant code of practice that applies</li>  <li>The employer has unreasonably failed to comply with it</li> </ul>  The tribunal has discretion to increase the protective award.  For an employee, their award will be reduced by up to 25% if the employee or their representatives have unreasonably failed to follow the Code of Practice.  Example:  Employee’s gross daily rate of pay is £100.  Employer breaches Code of Practice and s.188 applies, so the employee’s compensation will be £9000 (£100 x 90 days), as well as 25% of that £9000.  Outlook  While the lack of clarification brings a degree of uncertainty, this is the first change in employment law in 2025. The changes mark a turning point – employees are receiving greater protection.    This Order has a significant interplay with other government changes. The Employment Rights Bill proposes to bring more redundancy situations within the ambit of collective consultation by removing the concept of ‘establishment’. The proposed number of redundancies must be calculated on business wide level and not site-by-site if more than 20 redundancies are proposed. The protective awards may also be increased from 90 to 180 days, or higher.  Therefore, with this being the first of the 2025 employment law reforms from the Labour government, employers should take caution in their actions, check they are done in accordance with legislation, statutory codes of conducts and regulations and note the change of direction that legislation appears to be taking to protect employees’ interests.

Interim Relief: How Employers Can Reclaim the Narrative

<a href="https://www.parklaneplowden.co.uk/our-barristers/robert-allen/" target="_blank" rel="noreferrer noopener">Robert Allen</a>, employment and commercial barrister, considers the mechanism of interim relief, why dismissed employees should proceed with caution, and how employers can turn an application against them into a strategic asset.  Interim relief (IR) gives the tribunal the power to compel the employer to reinstate, re-engage or continue to pay a dismissed employee pending the outcome of a final hearing. Given the current pressures within the tribunal system and growing backlog, this interlocutory remedy has the potential to become increasingly valuable to claimants.  The statutory test  IR is only available to employees in limited circumstances. The right to apply is provided for by section 128 Employment Rights Act (ERA) 1996:  ‘An employee who presents a complaint to an employment tribunal that he has been unfairly dismissed and –  That the reason (or if more than one the principal reason) for the dismissal is one of those specified in –  Section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A or  Paragraph 161(2) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992,…  May apply to the tribunal for interim relief.’  For an employer, having (rightly or wrongly) decided to dismiss an employee, being required to maintain the terms of a contract for however long it takes for litigation to run its course<a id="_ftnref1" href="#_ftn1">[1]</a> is, on any measure, draconian. Consequently, the IR bar is set purposefully high. That is not altogether obvious, however. On the face of the wording of the statute, one may be deceived. Section 129 ERA 1996 provides:  ‘This section applies where, on hearing an employee’s application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find the reason (or if more than one the principal reason) for the dismissal to be one of those specified…’  (Emphasis added)  My ‘likely’ is not necessarily as likely as yours. The statute offers little by way of assistance.  Guidance from caselaw  Caselaw has – to a degree – clarified matters. The word ‘likely’ is to be construed as meaning the employee has a ‘pretty good chance’ of success at the final hearing.<a id="_ftnref2" href="#_ftn2">[2]</a> But what does a ‘pretty good chance’ mean? According to Mr Justice Underhill, a ‘pretty good chance’ ostensibly means ‘a significantly higher degree of likelihood than just more likely than not.’<a id="_ftnref3" href="#_ftn3">[3]</a> The then President went on to state: ‘in this context ‘likely’ does not mean simply ‘more likely than not’ – that is at least 51% - but connotes a significantly higher degree of likelihood.’  In short, it’s no easy task to prove.  Application  By illustration, take one of the more common routes to IR: an automatic unfair dismissal by operation of section 103A ERA 1996. In such a case, IR can only be ordered where the tribunal is satisfied that it is likely on hearing the evidence at a final hearing that the reason (or principal reason) for the dismissal was that the employee made a protected disclosure. It falls to the applicant to establish the necessary level of likelihood in relation to each and every distinct element of the claim.<a id="_ftnref4" href="#_ftn4">[4]</a>  So, to succeed, the applicant must establish that it is likely that the tribunal at a final hearing would find that:  <ol class="wp-block-list"> <li>they made a disclosure;</li>  <li>they believed that the disclosure tended to show one or more of the matters listed in section 43B(1) ERA 1996;</li>  <li>that belief was reasonable;</li>  <li>the disclosure was made in the public interest;</li>  <li>the disclosure was the sole or principal cause of dismissal;</li> </ol>  As for that final limb, in the absence of qualifying service on the part of the employee, it falls to them to prove the causative link to dismissal.<a id="_ftnref5" href="#_ftn5">[5]</a> Only employees with two or more years of continuous service shift the burden to their employer to show they were not dismissed with the sole or principal reason being the disclosure.  Procedure  Pre-hearing  IR applications are exempt from the usual requirement<a id="_ftnref6" href="#_ftn6">[6]</a> to conciliate before passing go. Time limits are tight: claimants must apply within seven days of the date of dismissal and there is no latitude for an extension.<a id="_ftnref7" href="#_ftn7">[7]</a> A hearing will be listed promptly thereafter. The issue shall be determined ‘as soon as is practicable’.<a id="_ftnref8" href="#_ftn8">[8]</a> Employers will have at least seven days’ notice of a hearing, but seldom more.<a id="_ftnref9" href="#_ftn9">[9]</a>  Though an IR hearing will be a matter of days away by the time an employer is put on notice, parties should nonetheless attempt to cooperate to agree bundle contents. The bundle should be restricted to what is necessary; less is more. A bundle running to hundreds of pages is rarely indicative of a successful IR application. Parties can, and should, make appropriate use of witness statements. And the value of a concise skeleton argument drawing it all together cannot be underestimated.  At the hearing  Even when statements have been provided, expect the judge to hear submissions alone. Rule 94<a id="_ftnref10" href="#_ftn10">[10]</a> provides that the tribunal ‘must not hear oral evidence unless it directs otherwise’. Any request to hear oral evidence would have to be founded on an exceptional reason. If you are seeking the tribunal to hear evidence, be ready to justify why this irregular step is necessary in the circumstances. Is there a point that can only be made orally?  If so, why has it not been set out in a witness statement? If there is a point of challenge, why is it just to challenge it now? If you are resisting such a request made by the other side, emphasise that the task at an IR hearing is to take each party’s case at its evidential height. Moreover, point to the overriding objective<a id="_ftnref11" href="#_ftn11">[11]</a> in light of the risk that hearing evidence at an interlocutory stage may well prejudice evidence at a final hearing.  Tactical considerations  Applying - eager enthusiasm may prove ephemeral  No claimant presents an ET1 without some initial level of confidence in the outcome. But when pursuing IR, such early confidence must be particularly well-placed. IR, for all it can subject the respondent to early pressure (and cost), has the potential to backfire.  First, there is no disclosure process. Not only do employees have to prove each element of the legal test to the required standard; they must do so based upon the documentation they have available to them at the time of applying. Whereas many cases can evolve based upon disclosure identifying key evidential vulnerabilities, IR will turn simply upon what the employee is able to point to from their own records, combined with anything the employer elects to cite for themselves (and the latter is unlikely to be helpful). Even taking the very first stage of a section 103A ERA 1996 dismissal - the employee will need to be ready to point to clear evidence of the precise circumstances of the disclosure they purport to have made. This can be far from straightforward, even with disclosure.  Second, whilst it may be tempting to put early pressure on the employer by making them face an IR application, it must be borne in mind that if IR is successfully resisted, it could be followed swiftly by an application on the employer’s part for costs.  Responding – turning an obstacle into an asset  Whilst facing an application for interim relief can seem daunting, requiring prompt tribunal attendance and early incurrence of costs, it can also present an opportunity for the respondent to make early headway in turning the momentum of the litigation in their favour.  The key to defeating IR applications is to properly apply the test. Limb by limb, submissions can be raised to demonstrate why the applicant does not come up to proof. The bar is high, and each limb presents its own evidential obstacles. In approaching this exercise, the respondent has the tactical benefit of using contemporaneous documents which favour their position, without having to disclose that which could be more damaging.  Where an IR application is successfully opposed, various opportunities present themselves. Principally, the employer has shifted the momentum in their favour. The IR hearing provides an initial forum for submissions explaining why the claim is not as strong as was believed by the other side. If a judge agrees with those submissions, confidence in the prospects of the claim is inevitably diminished – providing scope for settlement or withdrawal.  Having seen off IR, an employer can, in certain cases, use the hearing to go further. For one, the decision to pursue IR at all may have been unreasonable in the circumstances, such that the door is open to pursue costs. If, for instance, an employer is able to justify why the application fails to come up to proof by some margin on each and every aspect, the tribunal may be minded to make a costs order – particularly so if it is persuaded the tribunal’s time has been wasted in the process. Equally, provided IR was sought within a claim that had been presented following conciliation<a id="_ftnref12" href="#_ftn12">[12]</a>, there would be nothing stopping the respondent from applying for a deposit order at the hearing if the evidence tended to suggest its prospects were sufficiently low.  Summary  Dismissed employees should proceed with care when weighing up the benefits and risks of IR. After all, a prepared employer could utilise an application against them for their own benefit, demonstrating unforeseen weaknesses in the claim and pursuing costs for the tactical misstep. ‘As the ancient Romans said, festina lente.’<a id="_ftnref13" href="#_ftn13">[13]</a>  Robert was recently instructed to respond to an interim relief application. Having successfully resisted it; he went on to obtain a costs order in favour of his client. If you wish to instruct a member of our employment team to help navigate an interim relief application, please contact our clerking team.  <hr class="wp-block-separator has-alpha-channel-opacity"/>  <a href="#_ftnref1" id="_ftn1">[1]</a> A period which is increasingly measured in years rather than months  <a href="#_ftnref2" id="_ftn2">[2]</a> Taplin v. C Shippam [1978] IRLR 450 EAT  <a href="#_ftnref3" id="_ftn3">[3]</a> Ministry of Justice v. Sarfraz [2011] IRLR 562 EAT  <a id="_ftn4" href="#_ftnref4">[4]</a> Hancock v. Ter-Berg [2020] ICR 570  <a href="#_ftnref5" id="_ftn5">[5]</a> Smith v. Hayle Town Council [1978] ICR 996, CA  <a href="#_ftnref6" id="_ftn6">[6]</a> Under s.18A Employment Tribunals Act 1996  <a href="#_ftnref7" id="_ftn7">[7]</a> See s.128 (2) ERA 1996 and s.161 (2) Trade Union and Labour Relations (Consolidation) Act (TULR(C)A) 1992  <a href="#_ftnref8" id="_ftn8">[8]</a> S.128 (3) ERA 1996 and s.162 (1) TULR(C)A 1992  <a href="#_ftnref9" id="_ftn9">[9]</a> S.128 (4) and s.162 (2) ibid  <a href="#_ftnref10" id="_ftn10">[10]</a> Employment Tribunal Procedure Rules 2024, SI 2024/1155  <a href="#_ftnref11" id="_ftn11">[11]</a> Now found at Rule 3, ibid  <a href="#_ftnref12" id="_ftn12">[12]</a> This would be rare, given the narrow time limits and IR’s exemption from the early conciliation requirement  <a href="#_ftnref13" id="_ftn13">[13]</a> In the words of Iolanthe’s Lord Chancellor.

International Adoption – PLWG Best Practice: A Guide

Moving onto the fourth and penultimate article in my series covering the Public Law Working Group’s recommendations for best practice for adoption, we consider Chapter 4 of the PLWG report. This section addresses a more niche element of adoptions, those that are either international, or have an international element. As it stands, adoptions with an international element are extremely confusing, legislatively complex, and rife with delay. This chapter aims to provide background to the chaos involved in such adoptions and seeks to provide a comprehensive recommendation to move forward.  As with previous articles in the series, this follows the general chronology and sub-headings of the report to ensure consistency and to break the report down into a bite sized and user-friendly guide as to the recommendations.  The terms ‘country’ and ‘state’ are used interchangeably in this article to refer to the Central Authority within that country whose role it is to deal with international adoptions.  Introduction  The Working Group’s remit was to consider not only reform to the procedure of international adoption, but any changes to the substantive law. As part of this, three key areas were identified:  <ol class="wp-block-list"> <li>Whether the statutory framework is sufficiently clear;</li>  <li>Whether there needs to be any changes to the statutory framework or procedure;</li>  <li>Whether good practice guidance would be of assistance.</li> </ol>  International Adoptions Generally  Broadly speaking, the PLWG define international adoptions as any incoming or outgoing adoption involving another country. These include adoptions under the 1993 Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption (“the Hague Convention” or “the 1993 Convention”); adoptions governed by s.66 of the Adoption and Children Act 2002; adoptions under s.57 of the Family Law Act 1986 and common law adoptions; and domestic adoptions concerning overseas resident children.  It is not common in England and Wales for adoption orders to be made in favour of wider family, but where a placement is overseas, adoption may be necessary with respect to security of placement and immigration status. Similarly, there are children from outside the jurisdiction placed in the UK for adoption.  These cases are very complex and often lead to delay. The aim of the PLWG report in this area is to identify how improvements can be made to these harmful complexities.  Adoptions Pursuant to the 1993 Hague Convention  The UK is a Contracting State to the 1993 Convention, incorporated domestically via the Adoption (Intercountry Aspects) Act 1999 and the Adoptions with a Foreign Element Regulations 2005 (“the 2005 Regulations” or “the AFER 2005”). The 1993 Convention, at its core, is a partnership agreement between countries – the ‘origin’ country of the child is responsible for assessing the child, and the ‘receiving’ country is responsible for assessing the adopters. Neither state has a higher authority.  The Convention requires the receiving state to confirm that, upon adoption, the child will receive an immigration status such that they can permanently remain within the jurisdiction. Upon both confirming the match and an order being made, ALL Convention states MUST give effect to the order. There is no need to seek further orders within those states.  Whichever jurisdiction makes the adoption order (usually the ‘origin’ country, but there is nothing in law preventing the ‘receiving’ country making the order), must issue an Article 23 certificate confirming the Convention process has been followed (including dates of Article 17 agreements). This certificate (subject to the rare exception under Article 24 that the adoption is contrary to that state’s public policy) then binds every Convention state.  The 2005 Regulations are not a self-contained set of rules. They instead supplement the existing domestic framework contained within the Adoption and Children Act 2002 and the Adoption Agency Regulations 2005. International adoptions are also dealt with by way of further legislation (Children and Adoption Act 2006; Local Authority (Adoptions) (Miscellaneous Provisions) Regulations 2005). As such, those unfamiliar with the process, including professionals, can quickly become overwhelmed. The need to cross reference numerous regulations is complex, however, the legislative framework is very thorough and specialist lawyers are able to navigate this (though this requires Local Authorities to either have, or instruct, said specialist lawyers).  Outgoing Convention Adoptions  Local Authorities and the courts must consider whether a child who cannot be cared for by their birth family can be cared for by their wider family. This duty exists even if the wider family live overseas (the rationale being that it is better for a child to maintain family ties abroad, than to sever those ties domestically).  The PLWG did not look at the conduct of assessments of overseas family members, however, the Working Group did note that some authorities were reluctant to engage with the overseas assessment process in a timely manner. The Working Group note that authorities can seek support from Children and Families Across Borders and the Outbound Permanence Service (via Coram BAAF).  Many overseas placements do not involve adoption (these can often be affected under other orders such as Special Guardianship Orders), but some placements necessitate this, such necessity often coming from immigration status or SGO’s not being an order in the receiving state.  The Convention framework does not sit well with the typical adoption process in England and Wales, where children are removed due to abuse or neglect, or where there is nobody to exercise Parental Responsibility. Article 4 of the Convention specifically sets the groundwork that a Local Authority must obtain a placement order, Article 17 further set out requirements that the Central Authorities have agreed the adoption.  Children habitually resident in England and Wales are very rarely placed abroad for adoption unless it is to be with family members due to parental abuse or neglect. These children should be placed as soon as possible, but the Convention requirements, domestic legislation, and immigration laws make this very difficult, in some cases impossible.  The domestic legislation sets up somewhat of a paradox. Section 85 ACA 2002 makes it an offence to remove a child from the UK for the purposes of adoption, unless the prospective adopters have been granted parental responsibility via section 84. The issue, however, is that an application under section 84 cannot be made unless the court is satisfied that the child and the prospective adopter have had sufficient opportunities to be seen together – both countries additionally still need to comply with Articles 15, 16, and 17 of the Convention.  It is therefore in the child’s interests to obtain a Convention adoption order in the domestic courts. Re M (A Child) (Adoption: Placement Outside Jurisdiction) [2011] 2 WLR 1264 held that an offence would not be committed under s.85 in those circumstances as, any ‘visit’ the child made to the prospective adopters would not be for the purpose of adoption in that state, but to further a domestic Convention adoption.  Incoming Convention Adoptions  Incoming adoptions are not a frequent occurrence and, when these do happen, the burden on the domestic authorities is lesser given the assessment of the children is for the state of ordinary residence. The PLWG do however note that, adoption agencies do not always appreciate the complexities of Convention adoptions.  It is recommended that there is an open access hotline for social workers to obtain advice and information on any adoption with an international element, this is especially vital where the prospective adopters do not, or cannot, instruct lawyers. Procedural difficulties are often not noticed until several steps into proceedings, leading to significant delay and harm to the child and families.  Non-Convention Adoptions (Outgoing)  Children can only be taken out of the UK for adoption purposes via a section 84 order. This requires compliance with the 2005 Regulations. Section 84 is not available to those normally resident in the UK, it is designed solely for foreign nationals to assist in foreign adoption.  A s.84 order removes parental responsibility from all other people and grants this to the prospective adopters. It also authorises the removal of the child from the jurisdiction for the purposes of adoption. An order under s.84 is not, however, guaranteed to be recognised in the foreign court.  If the adoption is agency, the child must be placed with the prospective adopters for at least 10-weeks before an application under section 84 is issued.  If the child is looked after by a Local Authority, permission to remove from the jurisdiction can be sought under Schedule 2 of the Children Act 1989 prior to the granting of a placement order. Where a Local Authority is permitted to place a child for adoption, removal from the jurisdiction is then governed by section 28 ACA 2002. The position is not clear on whether s.28 can be used to allow the child to remain outside the jurisdiction, or to be placed for adoption whilst they remain outside the jurisdiction (there are no reported cases on this matter).  If the child is not looked after, it is difficult for the prospective adopters to comply with section 84, and s.42 where it is a non-agency adoption (this requires the child to be seen by the Local Authority). One possible way around this is that the Local Authority make a temporary home for the prospective adopters within the jurisdiction, for 10-weeks. It is clear this is not a viable position. It is therefore more straightforward for public law orders to be made and for a mirroring order to be obtained in the non-Convention state.  This is not always the right path for a child, and it may not overcome immigration issues in some states. But if it is, the proposed adopters may then seek to adopt at a later stage (having then complied with the s.84 requirements by virtue of an alternative order), this is uncontroversial if the state is a party to the Hague Convention Parental Responsibility and Protection of Children 1996 (not to be confused with the 1993 Convention which has been the subject of this Chapter) this is simple. If the state is not a party, it is liable to be extremely complicated. Though the cases where these issues transpire are very small.  Non-Convention Adoptions (Incoming)  Unlike outgoing non-Convention adoptions, there are a significant number of inbound adoptions under section 57 of the Family Law Act 1986. These cases are dealt with under the High Court’s inherent jurisdiction but can be heard by a High Court Judge sitting in the Family Court.  If the adoption is an overseas adoption pursuant to s.87 ACA 2002 (under the law of a country listed in the Adoption (Recognition of Overseas Adoptions) Order 2013), it will automatically be recognised in England and Wales and there is no need for proceedings to recognise the child’s status under English law (but this process does not confer British citizenship).  If an adoption order is made outside the jurisdiction and neither the Convention nor s.87 apply, the adoption may be recognised according to common law. Re Valentine’s Settlement [1965] Ch 831 set out four principles:  <ol class="wp-block-list"> <li>The adoptive parents have been domiciled in the foreign country at the time of the adoption;</li>  <li>The child was legally adopted according to the law of that jurisdiction;</li>  <li>The adoption has the same substantive characteristics and concept as an English adoption;</li>  <li>There must be no public policy reason refusing the recognition.</li> </ol>  Where these criteria are met, a person may apply under s.57 Family Law Act 1986 for recognition of the common law adoption.  Where the criteria in Re Valentine’s Settlement are not met, the courts may still recognise an adoption where to not do so would be a breach of the Article 8 rights of the children and prospective adopters (such cases being extremely rare, and extremely complex).  Dual applications for common law recognition and declarations of status requires the court to deal with different principles to each application and their domicile. Recognition will rely on the applicant’s domicile at the date of application, but a s.57 declaration will rely on the applicant’s domicile at or prior to the application.  Section 83 ACA 2002 makes it an offence to bring a child resident outside the UK into the UK for the purpose of adoption (a reverse of s.85) unless the Convention has been complied with. Whilst such adoptions are factually complex, the courts apply domestic law and assessment takes place within the jurisdiction. Where a person breaches s.83, the courts do not automatically refuse to make an adoption order.  Most applications to adopt from overseas are compliant with the 2005 Regulations, the prospective adopters will be registered and approved by the Department of Education. Upon returning to the UK with the child, there is further assessment and, following the child having lived with the prospective adopters, a further report to the court.  The biggest issue with such adoptions, despite a rigorous and complex process, including government departments, is that there is no recognition of the process at the visa stage when the child is finally ready to join their intended family. As noted by the Working Group:  “The apparent systemic failure to process visa applications promptly…to enable the child to enter the UK and begin their lives with their newly adopted parents…is lamentable.”  In some cases, years off delay can ensue, causing unnecessary emotional and financial hardship. The Working Group recommend that policy is amended to allows such children a special status with the Home Office at the visa stage. Whilst the usual checks should continue to apply, these should be fast-tracked, the delay otherwise being harmful to the welfare of the child.  Where adopters are domiciled in the UK but are habitually resident elsewhere, section 83 does not apply. If an adoption is made in a country not on the list in the 2013 Order, then it will not be recognised. A visa can be applied for on the basis of a period of care abroad, this may allow the child to settle in the  UK, but it does not alter the family law status – these parents may apply for a domestic adoption despite being habitually resident elsewhere.  In these cases, the child must have lived with the prospective adopters for at least three-years (unless this time is abridged by the court). At the point of being able to make the application, three years having passed often means there are difficulties tracing parents to obtain consent. The PLWG suggest considering whether allowing an application after 6 to 12 months would be more appropriate.  PLWG Conclusion  “The current system is just about working but the sheer complexity of it is illustrated by the number of statutes and statutory instruments which govern the process in England…”  With a possible combination of up to 18 pieces of legislation dealing with adoption (not including the international law), the complexity cannot be understated. Delays, misunderstanding, and mistakes are too common in adoptions with an international element.  The overarching recommendation of the Working Group is to review the legislative framework for international adoptions, such that this is contained within a single Act of Parliament, with regulations where necessary. Where regulations are required, these should be dealt with in a way to not require cross-referencing so as to leave the process more accessible to all involved.  The PLWG recognise that this is a major statutory task, and, outside of such reform (hopefully in the interim at most), recommend the following:  <ol class="wp-block-list"> <li>The Central Authority’s should update and expand the written guidance for intercountry adoptions to draw together the legislation into one place.</li>  <li>Consideration should be given to setting up a specialist referral unit.</li>  <li>The Central Authority’s should work closely with the Home Office where applications are relevant to immigration status decisions.</li>  <li>Section 84 ACA 2002 should be amended to make explicit that prospective adopters may be assessed overseas without committing an offence under s.85.</li>  <li>The regulations should be reviewed for inconsistencies (such as the paradox created by regulation 46, requiring a placement order and parental consent)</li>  <li>Regulation 47(1)(d) of the 2005 regulations should be amended to make clear this relates to the receiving state.</li>  <li>Practice Directions should be drafted to govern applications under Schedule 2 to the Children Act 1989 or applications under s.28 ACA 2002.</li>  <li>Cafcass Legal must be given sufficient resources to allow them to advise in such complex cases, often being the only lawyers involved.</li>  <li>The Home Office should create a fast-track process for visa approval where the applicant has fully complied with the regulations.</li>  <li>Section 42 should be amended to allow applications where adopters are habitually resident outside the UK to be made after six months.</li>  <li>Consideration should be given to amending the Children and Adoption Act 2006 to require mandatory review of countries on the banned list every three years.</li> </ol>  Conclusion  The PLWG's recommendations on international adoptions highlight the significant complexities and challenges within the current system. By addressing gaps in legislative clarity, procedural inefficiencies, and the burdens placed on families and professionals, these proposals aim to simplify the framework while safeguarding the welfare of children involved in cross-border adoptions. The overarching call for consolidating legislation into a single statutory framework is a bold but necessary step towards reducing delays and ensuring that all parties can navigate the process with greater ease and confidence.  The proposed amendments to legislation and practice have the potential to transform the landscape of international adoptions. Streamlining the statutory framework into one cohesive Act would resolve much of the confusion caused by the current patchwork of regulations. This would not only benefit legal professionals and social workers but also provide prospective adopters with a clearer understanding of their obligations and rights. Such simplification is particularly critical for cases involving vulnerable children, where unnecessary delays can have a profound and lasting impact on their stability and well-being.  The emphasis on inter-agency collaboration, particularly with the Home Office on immigration matters, is another pivotal recommendation. By fast-tracking visa applications for children who have complied with all adoption regulations, the welfare of these children can be prioritised, reducing emotional and financial strain on families. Furthermore, enabling overseas assessments under section 84 without triggering offences under section 85 would mitigate procedural roadblocks and allow children to transition into stable placements more swiftly.  Whilst the PLWG report does not consider this position within Chapter 4, the Working Group’s vision for "open" adoptions domestically, as advocated for in Chapter 1 of the report, introduces an interesting parallel for international adoptions. If adopted children can maintain ties to their birth families without severing connections entirely, the rationale for prioritising family placements abroad – despite logistical challenges – may shift. Courts might feel more confident in pursuing domestic solutions or alternative orders when open adoptions ensure that biological ties remain intact and meaningful. This evolution could reduce reliance on complex international placements, particularly in cases where immigration or procedural barriers make overseas placements less practical, but, at least currently, mandatory to pursue.  The PLWG's recommendations for international adoptions reflect a nuanced understanding of the countless challenges faced by children, families, and professionals. By fostering legislative coherence, enhancing inter-agency cooperation, and promoting a child-centred approach, these proposals have the potential to transform the adoption system. Ultimately, the recommendations align with the broader goal of creating a framework that balances the need for permanency and security with the preservation of identity and familial connections, ensuring the best outcomes for children involved in international adoptions.

Letters of Wishes

Nature of a letter of wishes  A “letter of wishes” has been described as being “a mechanism for the communication by a settlor to trustees of the settlement of non binding requests by him to take stated matters into account when exercising their discretionary powers" (see Breakspear v Ackland [2008] EWHC 220). Such a letter may be produced in relation to an inter vivos settlement or a testamentary trust. It will usually state that the wishes expressed in it are non binding.  Letters of wishes are most commonly produced in relation to the issue of how a settlor or testator would like the income and capital of a discretionary trust fund to be applied. However, they might also usefully be produced in relation to the exercise of an overriding power of appointment in relation to a flexible interest in possession trust or the exercise of an administrative power such as a power of investment or a power to add beneficiaries.  One reason that a testator might decide to create a discretionary trust of residue is because there are fraught family relationships and the testator wants to leave it to trustees to make decisions as to how the family are to benefit. They may wish to express sentiments to the trustees about family members which they would not want widely known. In such a case, the production of a detailed letter of wishes is crucial. However, even in less controversial circumstances, a letter of wishes should be produced so that there is no doubt as to what the relevant wishes of the settlor or testator were.  Although a letter of wishes is in essence a non binding document, it is important because it is a relevant consideration to be taken into account by trustees in relation to the exercise of their discretions. It was confirmed in Pitt v Holt [2013] UKSC 26 that “the settlor’s wishes are always a material consideration in the exercise of fiduciary discretions.” The better view is that the trustees must take the contents of a letter of wishes into account although they are not bound to follow it. That process will involve a consideration as to whether it is proper to follow such wishes in the interests of one or more of the beneficiaries of the trust. The trustees must still form their own view and they must not unthinkingly follow the wishes of the settlor or testator.  Whilst a letter of wishes is only one factor for trustees to take into account when considering the exercise of a discretion, in practice, most trustees will endeavour to follow those wishes if they possibly can. As is stated in Lewin on Trusts “trustees therefore rightly give great weight to the settlor’s wishes, either expressed from time to time during his lifetime or recorded, usually in documentary form, before his death.” However, that does involve interpreting those wishes accurately (see Abacus Trust Co (Isle of Man) v Barr [2003] Ch 409). Trustees should also take into account any orally expressed wishes of the settlor or testator but it may be more difficult to establish what they were, if not formally recorded.  A settlor or testator can and should update a letter of wishes from time to time. Earlier letters of wishes may be superceded by later ones as a matter of construction or they may all remain of relevance if they deal with different issues. The first letter of wishes is likely to remain of relevance in any event in determining what a settlor’s purpose was in conferring a particular power on the trustees (see Wong v Grand View Private Trust Co Ltd [2022] UKPC 47).  A letter of wishes is likely to be of diminishing importance where it was made many years previously, particularly if there has been a material change of circumstances such as a beneficiary suffering serious health or financial problems.  When might it be legitimate for trustees to decide not to follow the letter of wishes? It must be remembered that the trustees are subject to an overarching duty to administer the trust for the benefit of the beneficiaries. Therefore, one circumstance would be where those wishes are unreasonable. For example, A created a discretionary trust of residue worth £10m but indicated that he did not want any of his family to ever have access to income or capital as of right. That view was not based on anything in the beneficiaries’ circumstances which made such a view appropriate but simply A’s desire to control his family from the grave. The consequence of following his wishes would be that no use could be made of the spouse exemption and anniversary charges would be incurred, diminishing the trust fund. Another example might be if the settlor or testator wanted the trust fund to be invested in a manner which the trustees considered would prejudice the beneficiaries.  Disclosure  A beneficiary may ask the trustees to provide a copy of the letter of wishes. Trustees must proceed cautiously in that regard. The exercise of discretionary dispositive powers by trustees has traditionally been regarded as an inherently confidential process as it is in the interests of the beneficiaries of family discretionary trusts and advantageous to the due administration of such trusts that the exercise by the trustees of their powers be treated from start to finish as confidential (see Breakspear endorsing the approach in Re Londonderry’s Settlement [1965] Ch 918).  This means that trustees are usually well advised not to give voluntary disclosure of a letter of wishes. If the trustees do not disclose the letter of wishes, it is obviously far less likely that a beneficiary will seek to challenge the validity of any decision they make by reference to that letter. The trustees should also not give reasons for any decision to refuse to disclose the letter of wishes. It was confirmed in Breakspear that they are not obliged to give reasons in that regard, but, that if they give any reasons, then the Court could review the decision.  Despite this, the trustees can still choose to disclose the letter of wishes to a beneficiary if they consider disclosure to be in the best interests of the beneficiaries and the due administration of the trust. In that regard, they are not bound to follow a direction from the settlor or testator that the letter should not be disclosed.  Court application  If the trustees do not voluntarily disclose the letter of wishes, would the Court order disclosure? The traditional view was that a beneficiary had the right to call for accurate information as to the state of the trust and that the trustee had to be ready with their accounts. The beneficiary was also considered to have the right to inspect trust documents at all reasonable times and to take copies at their own expense. However, circumstances might warrant the withholding of disclosure, such as where it related to the exercise of trustees’ dispositive powers.  In Schmidt v Rosewood [2003] UKPC 26 the Privy Council held that a beneficiary did not have an automatic right to the production of trust documents but they could apply to the Court to seek disclosure of them. Whether disclosure would in fact be ordered was in the discretion of the Court. This was an aspect of the Court’s jurisdiction to supervise trusts and to intervene in their administration and it extended to discretionary beneficiaries. However, the Court still recognised that the need to protect confidentiality was one of the most important limitations to the disclosure of trust documents.  Although a letter of wishes is an important part of the trustees’ decision making process and it can be argued that disclosure would enable beneficiaries to ascertain whether trustees are acting properly, the Court will usually not order disclosure of it. In Breakspear it was stated that “it is therefore brought into existence for the sole purpose of serving and facilitating an inherently confidential purpose. It seems to me axiomatic that a document brought into existence for the sole or predominant purpose of being used in furtherance of an inherently confidential purpose is itself properly to be regarded as confidential.”  There can be exceptions to this. In Breakspear itself disclosure was ordered of the letter of wishes on the basis that it would have to be disclosed in relation to the trustees’ intended application for Court approval of the exercise of their dispositive discretions and disclosure now was likely to avoid delay and cost.  Another exception would be in relation to litigation between the trustees and beneficiaries, such as a challenge to the exercise of powers by the trustees. There the beneficiaries’ entitlement to disclosure is based on their status as litigants and not beneficiaries. In that context, relevance and necessity are the governing criteria and confidentiality is a subordinate consideration. However, the Court warned in Breakspear that the Court would adopt a robust approach to spurious litigation brought by beneficiaries as a fishing expedition simply to secure disclosure of the letter of wishes.

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