Public Children Law: A Case Law Compendium

Preface
Acknowledgements
Contents
Abbreviations
Table of Statutes
Table of Statutory Instruments
Table of Other Material
Table of Cases
1 s 20/s 76 accommodation
	1.1 s 20/s 76 accommodation: voluntary nature
		1.1.1 Leading guidance
		1.1.2 Good practice
		1.1.3 Absence of objection may not suffice
		1.1.4 Doubts as to capacity
		1.1.5 Doubts as to capacity: child-parents
		1.1.6 Use with newborns
	1.2 s 20/s 76 accommodation: overall approach
		1.2.1 Judgment about a series of matters
		1.2.2 ‘Prevented … from providing him with suitable accommodation or care’: wide scope
		1.2.3 Current problems not future risk in s 20(1)
		1.2.4 Wishes and feelings: relevance
		1.2.5 Wishes and feelings: relevance: older children
		1.2.6 Relationship with other duties: LAs cannot ‘finesse’ away specific duties
		1.2.7 Private fostering arrangements
		1.2.8 Age disputes
	1.3 s 20/s 76 accommodation: limits
		1.3.1 Misuses of s 20
		1.3.2 Care or s 20: advantages of care
		1.3.3 s 20 does not grant PR: extent of powers
		1.3.4 s 20 does not preclude wardship
	1.4 s 20/s 76 accommodation: challenging LA decisions
		1.4.1 Procedure: judicial review
		1.4.2 Human rights claims
2 Emergencies and investigations
	2.1 Emergencies and investigations: police powers of protection
		2.1.1 Only when executing EPOs is impracticable
		2.1.2 Use when EPOs are in force
	2.2 Emergencies and investigations: emergency protection orders
		2.2.1 Factors to consider
		2.2.2 Additional factors when applying without notice
		2.2.3 Human rights considerations
		2.2.4 No appeal
	2.3 Emergencies and investigations: s 37 investigations
		2.3.1 Criteria: ‘child’s circumstances’ to be construed widely
		2.3.2 Jurisdiction to order multiple investigations
		2.3.3 No power to compel LAs to bring proceedings
		2.3.4 Dispute over ‘child’s’ age: court determination
	2.4 Emergencies and investigations: s 47 investigations
		2.4.1 Purpose
		2.4.2 ‘Reasonable cause to suspect’: a low threshold
		2.4.3 Outcome: challenging LA decisions to initiate proceedings
3 Threshold criteria
	3.1 Threshold criteria: burden and standard of proof
		3.1.1 Establishing the s 31 criteria
		3.1.2 Proving a ‘fact in issue’
		3.1.3 Balance of probability
		3.1.4 Not reversing the burden
		3.1.5 Reliance on the burden
		3.1.6 Avoiding aggregation
	3.2 Threshold criteria: general approach to threshold
		3.2.1 Matters to bear in mind if threshold is disputed
		3.2.2 Approach to fact-finding
		3.2.3 Case management
		3.2.4 Formulating threshold allegations
		3.2.5 Adducing proper evidence if allegations are disputed
		3.2.6 Putting adverse cases
		3.2.7 Departing from LA allegations
		3.2.8 Non-applicability of criminal law concepts
		3.2.9 Precisely ascertaining the meaning of ‘non-accidental injury’
	3.3 Threshold criteria: fact-finding: case management
		3.3.1 Need for fact-finding
		3.3.2 Need for fact-finding: approach to the  Oxfordshire factors
		3.3.3 Split hearings
	3.4 Threshold criteria: relevant date
		3.4.1 Protective arrangements continuously in place
		3.4.2 Subsequent events may be relevant
	3.5 Threshold criteria: significant harm
		3.5.1 Meaning of ‘significant harm’
		3.5.2 FGM/male circumcision
	3.6 Threshold criteria: likely to suffer
		3.6.1 Meaning of ‘likely to suffer’
		3.6.2 Risk of harm must be based on proved fact
		3.6.3 Past uncertain perpetrator findings: value in  later cases
		3.6.4 Failure to vaccinate
	3.7 Threshold criteria: attributability
		3.7.1 A contributory causal connection
		3.7.2 Care given or likely to be given: an objective standard
		3.7.3 Care given or likely to be given: an objective standard: reasonableness evaluated by reference to particular circumstances
		3.7.4 Care given or likely to be given: parents with learning disabilities
		3.7.5 Care given or likely to be given: care given by whom?
		3.7.6 Care given or likely to be given: uncertain perpetrator findings in present cases
		3.7.7 Care given or likely to be given: blameless, accidental injuries
		3.7.8 Care given or likely to be given: FGM/male  circumcision
		3.7.9 Beyond parental care: not a finding of blame
		3.7.10 Beyond parental care: ‘parental’ refers to the child’s parents(s), not reasonable parents
	3.8 Threshold criteria: ‘whodunnit’ cases
		3.8.1 General approach to the uncertain perpetrator issue
		3.8.2 Not straining to identify perpetrators
		3.8.3 Approach in binary cases
		3.8.4 Uncertain perpetrator findings: relevance in present cases
		3.8.5 Uncertain perpetrator findings: relevance in  later cases
	3.9 Threshold criteria: children’s allegations
		3.9.1 ABE interviews
		3.9.2 Should children give evidence?
		3.9.3 Avoiding the term ‘disclosure’
		3.9.4 Initial contact with children alleging abuse
		3.9.5 Social work assessments
	3.10 Threshold criteria: further specific guidance
		3.10.1 Failure to protect
		3.10.2 Cardinal principles for sexual abuse investigations
		3.10.3 Shaken babies: clinical symptoms
		3.10.4 Fabricated or induced illness
	3.11 Threshold criteria: The court’s findings
		3.11.1 Reciting threshold findings
		3.11.2 Adequacy of reasons
		3.11.3 Failure to prove allegations
		3.11.4 Reopening findings: three stages
		3.11.5 Reopening findings: subsequent criminal convictions or acquittals
4 Interim care and supervision orders
	4.1 Interim care and supervision orders: test for ICOs
		4.1.1 Two stages
		4.1.2 Interim removals: general propositions
		4.1.3 Interim removals: safety demands immediate  separation
		4.1.4 Interim removals: human rights considerations
		4.1.5 Interim removals: chronic cases
		4.1.6 Interim removals: risk of harm is a two-sided coin
	4.2 Interim care and supervision orders: newborns
		4.2.1 Proceedings only upon birth
		4.2.2 Contested LA removals require judicial sanction
		4.2.3 Good practice for planned removals upon birth
	4.3 Interim care and supervision orders: effect of ICOs
		4.3.1 Impartial steps
		4.3.2 s 33 applies to ICOs
		4.3.3 Disputed male circumcisions
		4.3.4 Duty to consult PR holders
		4.3.5 ICOs do not endure beyond 17 or marriage if 16
		4.3.6 Interim contact
	4.4 Interim care and supervision orders: procedure
		4.4.1 Format of evidence
		4.4.2 Care plans are not strictly required
		4.4.3 Rare to make threshold findings at interim hearings
		4.4.4 Reviewing continuation of interim measures
	4.5 Interim care and supervision orders: s 38(6) assessments
		4.5.1 Broad construction of ‘assessment of the child’
		4.5.2 Purpose
		4.5.3 Questions to ask
	4.6 Interim care and supervision orders: ISOs
		4.6.1 ICOs only if ISOs are insufficient
		4.6.2 No interim orders on applications to extend supervision orders
5 Case management
	5.1 Case management: active case management
		5.1.1 Generally
		5.1.2 Robust and fair case management
		5.1.3 Summarily determining issues
		5.1.4 Delay: 26-week time limit: generally
		5.1.5 Delay: justice determines delay, not welfare
		5.1.6 Delay: criminal proceedings are not usually  good reason
		5.1.7 Experts
		5.1.8 Fact-finding
		5.1.9 Pandemic restrictions
		5.1.10 Withdrawal of applications
	5.2 Case management: compliance
		5.2.1 No amending timetables without permission
		5.2.2 Compliance with orders is mandatory
		5.2.3 Repercussions for non-compliance
	5.3 Case management: international issues
		5.3.1 All issues
	5.4 Case management: children
		5.4.1 Children giving evidence: proper approach
		5.4.2 Children giving evidence: meaningful engagement with Re W
		5.4.3 Children giving evidence: no right to give evidence
		5.4.4 Children giving evidence: ABE interviews
		5.4.5 Children meeting judges
		5.4.6 Children attending courts
		5.4.7 Children giving instructions
	5.5 Case management: notice
		5.5.1 Withholding notice to fathers with PR
		5.5.2 Withholding notice to fathers: not formally governed by s 1
		5.5.3 Withholding notice to fathers: adoption cases: putative fathers
		5.5.4 No duty to consult extended family: adoption cases
	5.6 Case management: joinder
		5.6.1 Reference to s 10(9)
		5.6.2 Fathers without PR
		5.6.3 Joinder of fosters carers or prospective adopters is usually inappropriate
	5.7 Case management: intervening
		5.7.1 Specific purposes
		5.7.2 No right to intervene
		5.7.3 Costs of intervening
	5.8 Case management: protected or vulnerable parties
		5.8.1 Protected parties: determining capacity if unclear
		5.8.2 Vulnerable witnesses: procedure
		5.8.3 Vulnerable witnesses: hearing disabilities
		5.8.4 Vulnerable witnesses: costs of intermediaries
	5.9 Case management: LIP
		5.9.1 Procedure
		5.9.2 McKenzie friends
		5.9.3 McKenzie friends: very slow to grant rights of  audience
6 International issues
	6.1 International issues: procedure
		6.1.1 Early consideration of international issues
		6.1.2 Judges to consider jurisdiction if not raised
		6.1.3 Good practice to record decisions
		6.1.4 Vienna Convention: duty to inform foreign  authorities
	6.2 International issues: jurisdiction
		6.2.1 How to approach the issue
		6.2.2 Habitual residence
		6.2.3 Habitual residence: when does habitual residence change?
		6.2.4 Habitual residence: no habitual residence
		6.2.5 Habitual residence: at what time?
		6.2.6 Transfer between contracting states: test
		6.2.7 Transfer between contracting states: evidence of genuine and specific added value
		6.2.8 Transfer between contracting states: comity
	6.3 International issues: other
		6.3.1 Diplomatic immunity
		6.3.2 Foreign assessments: guidance when seeking a foreign authority’s assistance
7 Evidence
	7.1 Evidence: rules of evidence
		7.1.1 Burden and standard of proof
		7.1.2 Hearsay
		7.1.3 Lies: Lucas directions
		7.1.4 Lies: Lucas directions: good practice
		7.1.5 Lies: relevance to welfare
		7.1.6 Similar fact
		7.1.7 Corroboration
		7.1.8 Identification
		7.1.9 Adverse inferences from failure to testify
		7.1.10 Convictions
		7.1.11 Estoppel
	7.2 Evidence: oral evidence
		7.2.1 The importance of parents giving evidence
		7.2.2 Witness demeanour
		7.2.3 Fallibility of memory
		7.2.4 Parents are compellable
		7.2.5 Vulnerable witnesses
	7.3 Evidence: approach when fact-finding
		7.3.1 An overview
		7.3.2 Wide canvas
		7.3.3 Discrepancies in accounts
		7.3.4 Inferences based on proved fact
		7.3.5 Multiple injuries over a short duration
	7.4 Evidence: children
		7.4.1 Children giving evidence
		7.4.2 Children giving evidence: levels of precision
		7.4.3 ABE interviews
		7.4.4 ABE interviews: important factors concerning ABE
		7.4.5 ABE interviews: failure to follow guidance
	7.5 Evidence: other
		7.5.1 Covert recordings
		7.5.2 Social work notes
	7.6 Evidence: experts
		7.6.1 All issues
8 Experts
	8.1 Experts: obtaining evidence
		8.1.1 ‘Necessary’
		8.1.2 Slow to admit irregularly obtained evidence
		8.1.3 Second experts
		8.1.4 Treating clinicians used as experts
		8.1.5 Particular expertise: psychological or psychiatric assessments unlikely to assist purely factual issues
		8.1.6 Particular expertise: biomechanical evidence
		8.1.7 Procedure: prior LAA authorisation
	8.2 Experts: assessing evidence
		8.2.1 Not bound by experts
		8.2.2 Courts decide on all of the evidence
		8.2.3 Conflicting experts
		8.2.4 Undisputed expert evidence: sound and articulated reasons to reject
		8.2.5 Inflicted injuries: unknown aetiology
		8.2.6 Hair strand testing
9 The welfare stage
	9.1 The welfare stage: the court’s approach
		9.1.1 Welfare determines the welfare stage
		9.1.2 Least interventionist approach
		9.1.3 No presumption of living with birth families
		9.1.4 Balancing the human rights of children and parents
		9.1.5 Proportionality: ECHR art 8
		9.1.6 Proportionality: a cross-check
		9.1.7 Adoption cases: ‘nothing else will do’
		9.1.8 Adoption cases: ‘nothing else will do’: proper use
		9.1.9 Adoption cases: adoption essentials: (i) proper  evidence
		9.1.10 Adoption cases: adoption essentials: (i) proper evidence: realistic options
		9.1.11 Adoption cases: adoption essentials: (i) proper evidence: LAs shall evidence options, possibly by alternative plans
		9.1.12 Adoption cases: adoption essentials: (ii) adequately reasoned judgments: global, holistic evaluation
		9.1.13 Adoption cases: adoption essentials: (ii) adequately reasoned judgments: non-linear approach
		9.1.14 Cases not concerning adoption: Re B-S approach  applies
		9.1.15 Cases not concerning adoption: ‘nothing else will do’ does not apply
	9.2 The welfare stage: paramountcy of welfare
		9.2.1 Meaning of ‘welfare’
		9.2.2 Meaning of ‘paramount’: child-parents
		9.2.3 Meaning of ‘paramount’: siblings
	9.3 The welfare stage: the welfare checklists
		9.3.1 Approach to the checklists
		9.3.2 Approach to the checklists: adoption cases
		9.3.3 Wishes and feelings: weight attached is case-specific
		9.3.4 ‘Change in his circumstances’: status quo arguments
		9.3.5 Harm or risk of harm: the same standard as s 31
		9.3.6 Harm or risk of harm: risk of harm
		9.3.7 Harm or risk of harm: may include long-term separation from parents
		9.3.8 Harm or risk of harm: uncertain perpetrators
		9.3.9 Parents’ capabilities: taking account of LA support
		9.3.10 Parents’ capabilities: learning disabled parents
		9.3.11 Parents’ capabilities: deaf parents
		9.3.12 Impact of lies on welfare
	9.4 The welfare stage: care planning
		9.4.1 Duty to keep plans under review
		9.4.2 No authority for ‘starred care plans’
		9.4.3 Twin-tracking
		9.4.4 Contingency planning
		9.4.5 Role of the Court and LAs
		9.4.6 Role of the Court and LAs: courts retain control over contact
		9.4.7 Court dissatisfaction with final care plans
		9.4.8 Court dissatisfaction with final care plans: cogent reasons needed to force more draconian orders
		9.4.9 Court dissatisfaction with final care plans: courts not bound by parties’ agreements
10 Care and supervision orders
	10.1 Care and supervision orders: designated local authority
		10.1.1 Correct interpretation
		10.1.2 The ordinary residence of newborns
		10.1.3 Procedure: agreed chronologies if disputed
	10.2 Care and supervision orders: care orders
		10.2.1 Placement with parents
		10.2.2 Placement with parents: care or supervision
		10.2.3 Placement with parents: LA subsequent removal from parents
		10.2.4 Placement with family: coming forwards at the earliest opportunity
		10.2.5 Long-term foster care or adoption
		10.2.6 Adoption cases
		10.2.7 Effect of care orders: appropriate exercise of PR
		10.2.8 Effect of care orders: limits on LA PR
		10.2.9 Effect of care orders: LAs exercising PR: medical treatment
		10.2.10 Effect of care orders: LAs exercising PR: disputed forenames
		10.2.11 Effect of care orders: LAs exercising PR: nationality
		10.2.12 Effect of care orders: LAs exercising PR: disputes regarding education
		10.2.13 Effect of care orders: not discharging SGOs
		10.2.14 Effect of care orders: no short-term final care orders
		10.2.15 Withdrawal
		10.2.16 Discharge
	10.3 Care and supervision orders: contact with children in care
		10.3.1 The test under s 34
		10.3.2 Newborns
		10.3.3 Procedure: if leave is required
		10.3.4 ICO-contact decisions should not pre-determine issues
		10.3.5 During national pandemic restrictions
		10.3.6 s 34(4) orders: merely permits LA prohibition of contact
		10.3.7 s 34(4) orders: only if s 34(4) is foreseeably needed
		10.3.8 s 34(4) orders: discharge of s 34(4) orders
		10.3.9 Enforcement: LAs can be subject of committal
	10.4 Care and supervision orders: supervision orders
		10.4.1 Nature and purpose
		10.4.2 ‘Requirements’ and ‘conditions’
		10.4.3 Duration: initial orders can be shorter than one year
		10.4.4 Duration: guidance regarding seeking extensions
		10.4.5 Duration: test for extensions
		10.4.6 Supervision orders alongside SGOs
11 Placement and adoption orders
	11.1 Placement and adoption orders: placement orders: generally
		11.1.1 Approach in care cases
		11.1.2 ADM decisions
		11.1.3 Uncertainty regarding finding adopters: not necessarily reason to refuse orders
		11.1.4 Uncertainty regarding finding adopters: not necessarily reason to refuse orders: dual planning
		11.1.5 Evidence concerning likelihood of finding adopters
		11.1.6 Placing twins separately
		11.1.7 Dispensing with parental consent: welfare ‘requires’ it
	11.2 Placement and adoption orders: placement orders: revocation
		11.2.1 Applications for leave to apply to revoke: test
		11.2.2 Applications for leave to apply to revoke: not an embargo to placement: good practice
		11.2.3 Applications for leave to apply to revoke: when are children ‘placed’?
		11.2.4 Test for revocation
	11.3 Placement and adoption orders: adoption orders
		11.3.1 Adoption versus long-term foster care
		11.3.2 Cannot be subject to a condition precedent
		11.3.3 Post-adoption contact opposed by prospective adopters
		11.3.4 Leave to oppose adoption orders: two-stage test
		11.3.5 Leave to oppose adoption orders: two-stage test: stage 1: ‘change of circumstances’
		11.3.6 Leave to oppose adoption orders: two-stage test: stage 2: judicial evaluation
		11.3.7 Leave to oppose adoption orders: two-stage test: stage 2: judicial evaluation: exercised exceptionally?
		11.3.8 Leave to oppose adoption orders: procedure: discretion to hear oral evidence
		11.3.9 Leave to oppose adoption orders: procedure: hopeless applications
		11.3.10 Time between hearing applications for leave and making adoption orders
		11.3.11 Revocation or set aside of adoption orders
12 Special guardianship orders
	12.1 Special guardianship orders: procedure
		12.1.1 Two routes to make SGOs
		12.1.2 Route 1: on application: test for leave s 10(9)
		12.1.3 Route 1: on application: leave precedes notice  periods
		12.1.4 Route 2: no application: generally
		12.1.5 Reports: necessity
		12.1.6 Reports: courts cannot limit investigations
	12.2 Special guardianship orders: general principles
		12.2.1 Test
		12.2.2 General comments
		12.2.3 Key differences to adoption
		12.2.4 Out of area placements
		12.2.5 Imposition on unwilling parties
		12.2.6 SGOs alongside public law orders
	12.3 Special guardianship orders: variation or discharge
		12.3.1 Leave to apply to discharge: test
		12.3.2 Care orders do not automatically discharge SGOs
13 Restricting liberty
	13.1 Restricting liberty: secure accommodation
		13.1.1 Test under s 25
		13.1.2 Test under s 25: ‘provided for the purpose of restricting liberty’: designed for or having as its primary purpose restricting liberty
		13.1.3 Test under s 25: welfare is relevant, not paramount
		13.1.4 Test under s 25: the two limbs under s 25(1) are disjunctive
		13.1.5 Test under s 25: meaning of ‘likely’ in the two limbs
		13.1.6 Test under s 25: meaning of ‘abscond’ in the first limb
		13.1.7 Test under s 25: children’s consent is unnecessary
		13.1.8 Test under s 25: identified placements are  not required
		13.1.9 Test under s 25: using child DoL orders if secure accommodation is unavailable
		13.1.10 Effect of orders: a permissive order
		13.1.11 Effect of orders: duration for no longer than  necessary
		13.1.12 Procedure: interim orders only if adjourned
		13.1.13 Procedure: representation of children
		13.1.14 Procedure: attendance of children
	13.2 Restricting liberty: child deprivation of liberty orders
		13.2.1 Use when s 25-compliant secure accommodation is unavailable
		13.2.2 Use when s 25-compliant secure accommodation is unavailable: test for orders: paramountcy principle
		13.2.3 Use when s 25-compliant secure accommodation is unavailable: test for orders: should the s 25 criteria apply?
		13.2.4 Depriving children’s liberty: three Storck components
		13.2.5 Depriving children’s liberty: three Storck components: the ‘acid test’
		13.2.6 Depriving children’s liberty: three Storck components: component (a) ‘confinement’
		13.2.7 Depriving children’s liberty: three Storck components: component (a) ‘confinement’: ages: ‘rules of thumb’
		13.2.8 Depriving children’s liberty: three Storck components: component (b) ‘lack of valid consent’: neither LAs nor parents can provide ‘valid consent’ for children in care
		13.2.9 Depriving children’s liberty: three Storck components: component (b) ‘lack of valid consent’: what if children consent?
		13.2.10 Depriving children’s liberty: three Storck components: component (c) ‘imputable to the state’
		13.2.11 Procedure: exercised only by the High Court
		13.2.12 Procedure: key elements to the process
		13.2.13 Procedure: evidence
		13.2.14 Procedure: interface with care proceedings
		13.2.15 Procedure: continuing review is crucial
14 Costs
	14.1 Costs: principles
		14.1.1 Generally
		14.1.2 Exonerated interveners
		14.1.3 Appeals
		14.1.4 Costs of translations
		14.1.5 Indemnity costs
	14.2 Costs: other
		14.2.1 Statement of costs: needed before determining the principle
		14.2.2 Wasted costs
15 Appeals
	15.1 Appeals: test
		15.1.1 Threshold criteria and welfare decisions: ‘wrong’
		15.1.2 Case management decisions: the correct approach
		15.1.3 Case management decisions: seek expedition if necessary
		15.1.4 Fact-finding determinations: the correct approach
		15.1.5 Margin of respect to first instance courts
	15.2 Appeals: adequacy of reasons
		15.2.1 Generally
		15.2.2 Inviting further reasons: principles to apply
		15.2.3 Inviting further reasons: relationship with appeal notices
		15.2.4 Addressing parties’ submissions
		15.2.5 Addressing welfare checklists
		15.2.6 Addressing realistic options
	15.3 Appeals: procedure
		15.3.1 Permission: test
		15.3.2 Permission: LAs responding to LIP permission applications
		15.3.3 Permission: extensions of time for transcripts: particular dates
		15.3.4 Admitting fresh evidence
		15.3.5 Representation
		15.3.6 Appealing placement orders
		15.3.7 Short-term stays
		15.3.8 Interim removals: time is of the essence
		15.3.9 Case management decisions: seek expedition if necessary
Index