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Judicial Appointments

We are delighted to announce two judicial appointments for members of Chambers.   Katherine Goss has been appointed by the Senior President of Tribunals as a Fee-paid Judge of the First-Tier Tribunal, assigned to the Health, Education and Social Care Chamber.   Lucy Sowden has also been appointed by the Senior President of Tribunals as a Fee-paid Judge of the First-Tier Tribunal, assigned to the Health, Education and Social Care Chamber.

Richard Harrington appears in the High Court on the first case to involve a change of both forename and surname in relation to a looked after child

It may be a surprise to many practitioners that until the decision of Re BC (Child in Care: Change of Forename and Surname) [2024] EWHC 1639 (Fam) there have been no reported cases concerning an application made by a looked after child to change both their forename and surname. In fact, this was the very first reported case to consider the principle of a child wanting to change both of their respective names.   Background   The child, BC, is a Gillick competent 15-year-old girl who was made subject to a care order on 22 June 2022. During care proceedings, serious findings were made, including that BC’s father had raped her and sexually assaulted her. Criminal proceedings remain ongoing, and father begins his trial later this year. Mother does not accept the findings made against father.   BC confirmed that since November 2021, she has wanted to change her name due to both names having a strong association with her father and the considerable trauma she suffers when she is called BC; the proposed name chosen by BC is well-considered and non-controversial. Despite mother not accepting the findings made, BC continued to have supervised contact with her mother and brothers; BC has remained keen for this relationship to continue and develop. Despite the wishes of BC, her mother opposed the application on the basis that BC should use her surname instead and that calling BC this name would make her feel that BC is not her daughter anymore.   The Local Authority opposed BC’s application. It was the position of the Local Authority that BC’s actions did not match her expressed wishes. The Local Authority made submissions that BC had not used her preferred name widely at school despite having numerous opportunities to do so, she voluntarily introduced herself as BC at her recent work experience placement, and she would not speak to professionals about her proposed change of name (save for her teachers). It was the case of the Local Authority that due to such hesitation and indecision, changing her name legally would risk causing further emotional harm to BC. The Local Authority submitted that there was a likelihood of her peers asking questions as to why she has changed her name and given BC has not been able to talk to professionals and her therapist about the harm inflicted by father, this may result in her feeling pressured to talk about the significant trauma she has suffered before she is ready to do so. The Local Authority was also concerned about the importance of BC having flexibility and control as to the situation, and the importance of BC having a relationship with her family. The Local Authority suggested there should be further therapeutic work undertaken with BC, BC should use her preferred name more widely at school first before considering to change her name legally, and she should await making such a significant decision until she turns 18.   Law   Section 33(7) of the Children Act 1989 (“CA”) confirms that while there is a care order in force, no persons can cause a child to be known by a new surname without either written consent of every person who has parental responsibility or the leave of the court; similar rules apply to children who are subject to a child arrangements order (section 13(1) CA 1989)  or a special guardianship order (section 14C(3) CA 1989). In contrast, a 16-year-old not subject to the aforementioned orders can change their name by unenrolled deed poll.   In relation to forenames, as confirmed by the recent decision of Re C (Change of Forename: Child in Care) [2023] EWHC 2813 (Fam) (“Re C”), to change a forename requires the court to invoke its inherent jurisdiction. Re C confirms the principles relating to change of forename and surname are the same and Re C provides guidance for the court to consider when faced with such applications.   As highlighted by Justice Poole at paragraph 32 of his Judgment, Re C concerned a very young child and Mr Justice Cobb noted that it will only be in rare or exceptional circumstances where the court would interfere with a forename chosen by a parent. Nevertheless, given BC was a Gillick-competent 15-year-old, Justice Poole questioned whether the approach set out in Re C should be different for older children who have capacity to make decisions for themselves.   The most relevant case in this matter was the Court of Appeal decision of Re S (Change of Surname) [1998] EWCA Civ 1950 (“Re S”) where an application was made by a 15-year-old to change her surname to her maternal surname following allegations made that her father had sexually abused her sister. In this matter, Thorpe LJ relied heavily on the wishes and feelings of the child wanting to change her name.   At paragraph 34, Justice Poole confirmed the following principles apply to an application made by a competent child in care to change their forename and/or surname:   i) The court’s paramount consideration is the child’s best interests.   ii) In assessing best interests, the wishes, feelings, needs and objectives of an applicant who is competent to make a decision about changing their name(s) should be given careful consideration.   iii) The motives and objectives of any family member who objects to the application will require careful scrutiny.   iv) Advice from a guardian will be valuable to the court.   v) The principles to be applied to a change of name are the same regardless of whether the change is to a forename or surname. If the application is to change both, then the implications will need to be considered accordingly.   vi) Regard should be had to the fact that at 18 the child will be free to change their name(s) without hinderance and that at 16 a child who is not in care or subject to a child arrangements order or special guardianship order is free to change their name by deed poll without the consent of any person with parental responsibility.   vii) The views of others and proposed carers are relevant only as they may affect the conduct of those persons and therefore indirectly affect the welfare of the child.   viii) The name(s) chosen by the child’s parent(s) may link them to particular religious or cultural backgrounds which are of significance to the child’s identity.   It was also noted that the views of any Local Authority who have parental responsibility must be taken into account. Justice Poole confirmed that any application made by a child to change their forename should be made to the High Court.   Analysis and Conclusion   Justice Poole acknowledged the differences between Re S and the facts in this matter but on balance, determined that the court should follow the authority of Re S. Justice Poole confirmed the need to give very careful consideration to the wishes, feelings and objectives of BC. It was noted that BC was mature and that she would be entitled, if not subject to a care order, to change her name by deed poll at the age of 16. It was further of note that BC had been settled on her preferred name since 2021 and on such basis, the court rejected the suggestion that she was hesitant or indecisive about wanting to change her name.   It was determined by Justice Poole that BC had good reason for wanting to change her names and to be dissociated from her father. BC’s statement was regarded as being powerful, noting that she has given considerable thought as to the implications of this decision and she has consistently remained of the view that she wishes to change her names.   Justice Poole rejected the Local Authority’s submission that changing BC’s name would set back the ongoing re-building of the family relationship. BC was clear that she would permit the family to call her BC despite the impact it would have on her. While it was accepted that the family relationship may come under considerable strain during father’s criminal trial, the court determined that the change of name would not be a significant contributor to any strain on the relationship; rather the father’s conduct, the verdict and the sentence will be much more important.   In conclusion, Justice Poole provided the following remarks at paragraphs 61 and 62:   A change of forename and/or surname for a child is a serious decision whatever the age of the child. The court’s paramount consideration is the best interests of the child. The views of others, in particular of those with parental responsibility, are to be taken into account. The family’s views are relevant insofar as they may affect their conduct and attitude and therefore affect the welfare of the child. The views of the Local Authority, having parental responsibility in respect of a child in care, are of importance. The court must take into account the child’s competence to make the decision, their age and maturity, the steadfastness of their wish to change their names, and the reasons behind the wish to make the changes. The court should consider the choice of name(s) – are they frivolous or would they be liable to be detrimental to the welfare of the child because of their nature or associations? The court should have close regard to the impact on the child of allowing them to change their name(s) as well as the impact of refusing them leave to do so. In the case of an older child, the court can have regard to the fact that a 16 or 17 year old not in care and not subject to a relevant child arrangements order or special guardianship order, could change their name without consent or leave, as could any 18 year old. [61]   Having regard to the legal framework and all the evidence and circumstances in this case, I have little hesitation in allowing the application and in giving leave to BC to change her forename and surname so that she shall be known as JKL. I suggest that if she wishes to do so, once she is 16 years old, she should be assisted to change her name by unenrolled deed poll. My order gives her leave to do so. I give considerable weight to the settled wishes of a mature, competent 15 year old who has good reason to wish to change both her forename and surname, who has chosen sensible new names that are not frivolous or provocative or liable to be detrimental to her welfare in any way. I am content that she has thought through the decision and is aware of the significance of the changes proposed. I am confident that she will be well supported at school and in her foster placement in the change process, that she will enjoy psychological and emotional benefit from the changes, and that she would be liable to suffer psychological and emotional harm were her application to be refused. The Local Authority might consider funding further therapy to support her though the process of the name changes (and the pending trial of her father). I do not believe that her family relationships will be harmed by the proposed name changes. In my judgement it is clearly in BC’s best interests to allow this application. [62]   Richard Harrington acted for the Local Authority in this matter. Should you wish to instruct Richard, please contact his clerks on 0330 390 4303 or <a href="mailto:FamilyClerks@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">FamilyClerks@parklaneplowden.co.uk</a>.

Simon Wilkinson appears in two cases regarding vulnerable adults in the High Court and Court of Protection involving the use of the inherent jurisdiction and the appointment of a Health and Welfare Deputy

In Wakefield Metropolitan District Council v FH & Anor [2024] EWHC 830 (Fam) Simon represented the Health Trust in proceedings before Cobb J (as he was) in proceedings involving the inherent jurisdiction being invoked for protective orders for a vulnerable adult. The judgment summarises the key legal principles to be applied and gives a further example of when such orders will be made.   The judgment can be found here: <a href="https://caselaw.nationalarchives.gov.uk/ewhc/fam/2024/830?query=FH">https://caselaw.nationalarchives.gov.uk/ewhc/fam/2024/830?query=FH</a>   In AB v CD (By The Official Solicitor) & Anor [2024] EWCOP 32 Simon represented the local authority in linked proceedings in the Court of Protection. There were two applications for (1) an annual renewal of CD’s deprivation of liberty; and (2) a health and welfare application by CD’s mother. As part of his analysis of the orders which were in CD’s best interests HHJ Baddeley considered whether to appoint a deputy for CD’s health and welfare (the case advanced by the local authority). He considered the wealth of evidence including the clear recommendation of Christopher Wall (independent social worker) and concluded that this was “one of those rare cases in which it is in [P]’s best interests for a deputy to be appointed”.   The judgment can be found here: <a href="https://caselaw.nationalarchives.gov.uk/ewcop/2024/32">https://caselaw.nationalarchives.gov.uk/ewcop/2024/32</a>   Simon is an experienced Family law and Court of Protection barrister, recommended in both the Legal 500 and in Chambers & Partners over many years. He has a particular interest in cases involving a crossover between the jurisdictions.

Parklane Plowden continues to expand the family team

Parklane Plowden Chambers are delighted to welcome <a href="https://www.parklaneplowden.co.uk/our-barristers/emma-gough/" target="_blank" rel="noreferrer noopener">Emma Gough</a> who joins our market-leading family team.   Emma was called to the Bar in 2004 and brings considerable experience of private children and financial remedies cases.   Emma’s arrival further strengthens a team which has seen significant expansion in the past 12 months, with the additions of <a href="https://www.parklaneplowden.co.uk/our-barristers/julia-cheetham-kc/" target="_blank" rel="noreferrer noopener">Julia Cheetham KC</a>, <a href="https://www.parklaneplowden.co.uk/our-barristers/martin-kingerley-kc/" target="_blank" rel="noreferrer noopener">Martin Kingerley KC</a>, the return of <a href="https://www.parklaneplowden.co.uk/our-barristers/emily-ross/" target="_blank" rel="noreferrer noopener">Emily Ross</a> from parental leave, and <a href="https://www.parklaneplowden.co.uk/our-barristers/rajni-virk/" target="_blank" rel="noreferrer noopener">Rajni Virk</a> accepting tenancy.   For further information on the group’s services and expertise, please contact <a href="https://www.parklaneplowden.co.uk/clerks/stephen-render/" target="_blank" rel="noreferrer noopener">Stephen Render</a>, Senior Practice Director to the Family, Chancery & Commercial Teams on 0113 228 5000.

Care Proceedings involving Unaccompanied Asylum-Seeking Children

It has become the sad reality that thousands of individuals are forced to flee their home country due to war, persecution, violence, poverty and for many other reasons. For many, fleeing their home country in search for a better life comes with significant risks and are vulnerable as a result. Truth be told, even when refugees, asylum-seekers and migrants arrive in their desired country and receive international protection, that vulnerability continues by often having no family members or friends in that country, being unable to speak the native language, and being exposed to a new culture.   Risks taken by parents and/or family members include sending children unaccompanied across the globe for their safety and/or in search for a better quality of life. These journeys are often long and dangerous. When unaccompanied asylum-seeking children arrive in England and Wales, Local Authorities have a duty in accordance with Section 20 of the Children Act 1989 to ensure that they are suitably accommodated. Unless a care order is made, should a child’s parents be deceased or uncontactable, no one is able to exercise parental responsibility over the child.   This article focuses on two common issues which arise within care proceedings relating to unaccompanied asylum-seeking children:   <ul> <li>Notification to foreign authorities</li>   <li>Threshold</li> </ul>   Notification to Foreign Authorities   Article 37(b) of the Vienna Convention on Diplomatic Relations 1961 states:   If the relevant information is available to the competent authorities of the receiving State, such authorities shall have the duty: […]   to inform the competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor or other person lacking full capacity who is a national of the sending State. The giving of this information shall, however, be without prejudice to the operation of the laws and regulations of the receiving State concerning such appointments.   Sir James Munby confirmed how Article 36(b) should be applied in care proceedings at paragraphs 47-48 in Re E (A Child) (Care Proceedings: European Dimension) [2014] EWHC 6 (Fam):   […] Whenever a party, whether an adult or the child, who is a foreign national   a) is represented in the proceedings by a guardian, guardian ad litem or litigation friend; and/or   b) is detained,    the court should ascertain whether that fact has been brought to the attention of the relevant consular officials and, if it has not, the court should normally do so itself without delay. [47]    If, in any particular case, the court is minded to adopt a different or more restrictive approach it is vital that the court hears submissions before coming to a decision and that it then sets out quite explicitly, both in its judgment and in its order, the reasons for its decision [48]   Sir James Munby makes it clear that, while it is good practice to inform a foreign authority of proceedings, the court does have liberty to depart from this position. Such view is consistent with the advice given by the Department of Education: “Working with foreign authorities: child protection cases and care orders” (<a href="https://assets.publishing.service.gov.uk/media/5a7d9d2fe5274a676d5331a3/Working_with_Foreign_Authorities_-_Child_Protection_and_Court_Orders.pdf" target="_blank" rel="noreferrer noopener">https://assets.publishing.service.gov.uk/media/5a7d9d2fe5274a676d5331a3/Working_with_Foreign_Authorities_-_Child_Protection_and_Court_Orders.pdf</a>) dated 2014, which confirms at page 6:   Social workers should inform the relevant Embassy when a child with links to a foreign country has become the subject of a child protection plan, has required immediate protection or has become the subject of care proceedings, unless doing so is likely to place the child or family in danger and provided any necessary consent to disclose information has been obtained. Decisions should be linked to a robust and thorough risk assessment.   Lord Justice Moylan and Mr Justice MacDonald published further guidance in 2019 titled “International Family Justice Officer: Family Courts Informing Consular Authorities of Proceedings” (<a href="https://www.judiciary.uk/wp-content/uploads/2019/12/Consular-Authorities-Note.Final-18.04.19-1.pdf" target="_blank" rel="noreferrer noopener">https://www.judiciary.uk/wp-content/uploads/2019/12/Consular-Authorities-Note.Final-18.04.19-1.pdf</a>). The following guidance was of note:   <ul> <li>The court should ascertain the immigration status of the foreign child involved in care proceedings.</li>   <li>The court may require the parties to obtain advice from an experienced immigration lawyer.</li>   <li>The court should be mindful of any detrimental consequences for the family in the country of origin should notification be permitted.</li> </ul>   The recent decision of Mr Justice Keehan in Re O (A Child: The Vienna Convention on Consular Relations 1963) [2021] EWHC 908 (Fam) sets out the circumstances where requisite notification may not be required:   In the premises does Article 37(b) impose an absolute and binding duty in all circumstances to notify a foreign authority where a court appoints a guardian in respect of one of its nationals? In my judgment it does not. [31]   In the vast majority of cases where Article 37(b) is engaged, the court will have no difficulty or face any impediment in complying with the terms of the Vienna Convention and giving the requisite notification to the foreign authority. There will be rare cases, such as the circumstances of this case, where it would wholly inimical to the welfare best interests of the child to give the requisite notice to the foreign authority. <a></a> [32]   The Vienna Convention is not enshrined in our domestic law. The terms of the Convention should ordinarily be complied with but where to do so would be contrary to the welfare best interests of the child concerned, I am satisfied that the court may conclude it would not be appropriate to give the requisite notification. [33]   I am satisfied in this case and on the basis of the cogent evidence before the court that it would be wholly contrary to the welfare best interests of O for the court or for the local authority to notify the Congolese authorities of the fact of these public law proceedings and/or of the appointment of a guardian to represent her interests. [34]   In this case, the child was a 13-year-old citizen of the Democratic Republic of Congo (“DRC”) who was brought to the United Kingdom by her mother’s friend who sadly abandoned her at a bus stop. While the child did miss her family, she did not want to return to the DRC due to the horrific experiences she had encountered and her belief that she would either be arrested or killed upon her return. In contrast, the child was doing well in the UK and wished to remain in her foster care placement where she could receive psychological help. Mr Justice Keehan confirmed that he had no reason to doubt the account given by the child and provided permission to the Local Authority not to inform the DRC of proceedings.   Accordingly, case law makes clear that whether a Local Authority should give a foreign authority requisite notice of proceedings will be dependent on whether the same would be contrary to a child’s best interests.   Threshold   In cases where the parents of the unaccompanied asylum-seeking child are deceased or are outside of the jurisdiction, a question arises as to how threshold is pleaded. Often thresholds are pleaded on the basis that a child is suffering or is likely to suffer significant harm given no one can exercise parental responsibility. While the child is likely to suffer significant harm, in accordance with the section 31(2) test, how is that harm attributable to the care being given to the child?   This issue was addressed by Lord Justice Peter Jackson in Re J (Child Refugees) [2017] EWFC 44. This case concerned an application for care orders of two unaccompanied asylum-seeking children who fled Afghanistan due to the Taliban. Very little was known about the children’s family other than both children’s fathers were believed to be deceased or missing. At paragraph 15, Lord Justice Peter Jackson stated:   The question first arises as to whether such children can properly be accommodated under section 20 of the Children Act, or whether the Local Authority is under an obligation to bring care proceedings.  In this case, the threshold criteria have undoubtedly been crossed because the children have certainly faced the risk of significant harm and have, indeed, suffered significant harm at the time the proceedings were brought as a result of being sent across the world without any parental protection.  Whether the children are to be described as abandoned or just sent out into the world makes no difference.  It also seems to me that the fact that the children may have been sent out of Afghanistan for their own benefit does not prevent the threshold for care proceedings being met.  That was a decision that was taken either by the parents or the parents were not in a position to exercise parental responsibility so that it was taken by others.  The fact that the children might have suffered worse harm by staying does not mean they have not suffered significant harm and risked suffering significant harm by going   Re J confirmed at paragraph 17 that the test for threshold is the attribution of harm to the parental behaviour, not parental culpability.   While not concerning unaccompanied asylum-seeking children, the decision of HHJ Thorp in West Sussex County Council v K [2022] EWFC 170 provides a helpful guide to situations where care orders can be made without their being any fault of the parents. In this case, father was deceased, and mother suffered a catastrophic brain haemorrhage and could no longer care for the child; there were no concerns with the mother’s parenting before this. HHJ Thorp stated at paragraph 35:   In those circumstances, in my judgment, threshold is crossed in this case, whether the threshold date is shortly after the mother had her haemorrhage or whether it is in February 2022. The fact of the matter is that if there was no intervention and an order was not made, this is a child who would not have the care from a parent which it would be reasonable to expect a parent to give. The reason for that is that the mother just cannot provide it, through no fault of her own. Equally, in my judgment it is highly likely that as a result of her mother's incapacity (and, hence, her inability to provide the care which it would be reasonable to expect a parent to give), K would be likely to suffer significant harm in the future if an order were not made. Indeed, no party submitted that she would not be at risk of significant harm in these circumstances.   Further, HHJ Thorp concludes at paragraph 41 that: “[…] it is vital that the Local Authority share parental responsibility so that there is in fact someone who is able to exercise parental responsibility, and so that K can be looked after appropriately.”   Case law has therefore established that threshold can be satisfied where no one can exercise parental responsibility, even in circumstances where there has been no fault of a parent or caregiver.

New clerking appointments at Parklane Plowden

PLP is continuing to expand and develop its clerking team, as it seeks to build upon its stellar reputation for client service.   Following the February 2024 appointment of Stephen Render as the Senior Practice Director of the Family, Chancery and Commercial Teams, PLP has now appointed three new Assistant Practice Directors:   • Callum Byrne has been appointed as an Assistant Practice Director in the Family, Chancery and Commercial Teams with a focus on Care, Court of Protection and Private Children.   • Emma Frazer has been appointed the Assistant Practice Director for the Personal Injury/Clinical Negligence and Employment Teams in Newcastle and will cover all areas of work within these areas.   • Hannah Townsend has been appointed the Assistant Practice Director for the Family, Chancery and Commercial Teams with a focus on Chancery, Commercial and Family Finance work.

Parklane Plowden expand Family Team with KC

Parklane Plowden’s Family Team are delighted to welcome Martin Kingerley KC as a door tenant.   Martin was called to the Bar in 1999, and took silk in 2020. He was then appointed a Deputy High Court Judge in 2023.   An experienced family law practitioner, Martin specialises in the law relating to children, undertaking work in the most serious and complex public law cases relating to allegations of non-accidental injury and death, serious sexual harm, factitious/induced illness and honour-based abuse.   Martin is highly ranked in both the leading legal directories, with Chambers and Partners describing him as a barrister who “knows all there is to know about children's law” and who is “quite excellent in terms of his advocacy skills.”   “We’re delighted that Martin has joined as a door tenant, bringing a wealth of family law experience. His specialist knowledge of the law relating to children will provide a further boost to our already preeminent position in this field.” Stephen Render, Senior Practice Director.   For further information on the group’s services and expertise, please contact <a href="https://www.parklaneplowden.co.uk/clerks/stephen-render/" target="_blank" rel="noreferrer noopener">Stephen Render</a>, Senior Practice Director to the Family, Chancery & Commercial Teams on 0113 228 5000.

Land purchased by family members for business purposes not subject to Stack v Dowden presumption

Case comment on Williams v Williams [2024] EWCA Civ 42   In the recent case of Williams v Williams the Court of Appeal looked at the question of whether the presumption laid down in Stack v Dowden [2007] UKHL 17 (namely that property purchased in joint names is also held as joint tenants in equity) applies more broadly than simply where that property is purchased by cohabitants or persons in the “domestic consumer context”.   Nugee LJ giving the judgment on behalf of the court, held that whilst it may apply more broadly it is absolutely clear it does not apply to properties bought for business purposes, even where the co owners are family members. This is because there is a clear and historic presumption that where property is bought for business purposes (whether by a partnership or not) the parties do not intend survivorship to operate, and therefore necessarily they must intend to hold as tenants in common.   Notably, the court commented there might be “strong arguments” in favour of the Stack presumption applying where property is purchased for business purposes by a couple in an intimate relationship, given the inevitable interplay of “mutual affection and sharing of both financial and other resources rather than commercial considerations” (para 54). Arguably, this simply reflects the likelihood that the nature of the relationship itself will amount to an effective rebuttal of the presumption against survivorship in those circumstances.   It is of assistance that the court reiterated that the Stack presumption of joint beneficial tenancy in the absence of an express declaration of trust to the contrary, is not simply a result of the operation of the mantra of ‘equity follows the law’ but based on two much more fundamental justifications arising from context, as was made clear in Jones v Kernott:   <ol> <li>“The first is implicit in the nature of the enterprise. If a couple in an intimate relationship (whether married or unmarried) decide to buy a house or flat in which to live together, almost always with the help of a mortgage for which they are jointly and severally liable, that is on the face of things a strong indication of emotional and economic commitment to a joint enterprise." (Jones at para 19)</li>   <li>Secondly, that not only do parties in “a trusting personal relationship” generally not hold each other to account financially, but in many cases it is of great practical difficulty to attempt to do so. (Jones  para 22)</li> </ol>   The facts in Williams v Williams   In Williams, the business property in question comprised a two-part family farm, Crythan Farm and Cefn Coed Farm. Both purchased in the joint names of Mr and Mrs Williams and their son Dorian who ran the farm as a partnership of equal shares formed by deed. This was an unusual case in that the parties agreed that the intention was for all three to own equally (they all having contributed equally including by virtue of a mortgage in joint names). The issue was as to mechanism and whether Mrs Williams’ beneficial share had, following her death, accrued to the others by virtue of survivorship, or whether it passed according to the terms of her will.   The Court noted the long standing presumption that those acquiring property for business purposes do not intend survivorship to operate and concluded that where property is owned by a couple and a third party, particularly where there is evidence of accounting between the parties (such as by way of partnership management accounts or the taking of rents) the appropriate starting point is that the property is owned as tenants in common.   Fundamentally, in Williams, the context was “very different” to that in Stack in that whilst it in part provided a home for Mr and Mrs Williams it was “primarily a business which provided their livelihood” (para 54).   Key takeaways   This is a particularly important decision for the many disputes involving family businesses which extend beyond simply cohabitants or husband and wife and incorporate co-ownership of land with other family members. These are very often property holdings which have the added complexity of encompassing dual-use land such as farmland incorporating a family home (such as in Williams) or where the family home is located above business premises below.   It is now beyond doubt that outside of the pure cohabitation context (unless an express declaration of beneficial interest is made) the court will very likely assume that co-owners of business or mixed business/domestic property intended to hold as beneficial tenants in common rather than joint tenants.   It also raises the knotty question of whether in a different case (one in which parties did dispute the quantum of beneficial shares), whether the starting-point of common intention constructive trust reasoning would also give way in favour of the more commercially focused resulting trust analysis.   In short, in cases where property is co-owned by more than just the couple themselves, will the law now also presume their intention was to own in shares proportionate to their financial contributions – even as between the couple themselves?   This also poses potentially very significant difficulties in terms of inheritance planning for families who may well be operating on the assumption that their partner and later children will acquire by way of survivorship on their death, thus avoiding otherwise potentially onerous inheritance tax implications.   Consideration should particularly be given as to whether this issue applies where purchases predate the introduction of the TR1, which now prompts parties to declare at purchase their intentions as to beneficial ownership, as it did in Williams.   Harriet is a specialist family finance practitioner regularly undertaking instructions in TLATA 1996 claims. Harriet also has a breadth of experience in financial remedies cases involving family businesses and issues arising where property is owned jointly by one or both of the couple at the heart of the matter and third parties.

Care Orders vs Supervision Orders for Children Placed at Home

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

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

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

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