Legal updates

Read Coram Children's Legal Centre's updates on the latest developments in English law. 

• Consultations
• Bills and Acts
• Statutory Guidance
• Reports
• News
• Cases

Last updated: 09 May 2013

Consultations

Good early years provision for all

 Keeping Children Safe in Education

 All Party Parliamentary Group on Child Protection Launches Inquiry into Family Justice Reforms

A parliamentary inquiry has been launched this week into the family justice reforms proposed by the government in the Children and Families Bill. The All Party Parliamentary Group (APPG) on Child Protection, supported by the NSPCC, is launching the inquiry and calling for evidence to contribute to the debate on how the family justice system could be improved for children. Over the past two years significant work has taken place through the Family Justice Review, which led to proposals in the forthcoming Children and Families Bill that were announced in the Queen’s Speech.  The inquiry will focus on specific areas of the family justice system that will be affected by the Children and Families Bill. The terms of reference are outlined below. The APPG intend to hold seminars in the autumn on three key areas of particular importance.  The inquiry would like to take written evidence from organisations and individuals based on the terms of reference. Evidence should be submitted in electronic format to shelley.hopkinson@parliament.uk

Launch Date: 12 July 2012
Closing Date: not specified, but presumably by September as APPG will report in December 2012.

Bills and Acts (Track Bills-Latest)

Online Safety Bill [HL] 2012-13

A Bill to make provision about the promotion of online safety; to require internet service providers and mobile phone operators to provide a service that excludes pornographic images; and to require electronic device manufacturers to provide a means of filtering content.

2nd reading in House of Lords: 9 November 2012

Family Perinatal Support and Adoption Bill 2012-13

A Bill to require the Secretary of State to provide appropriate perinatal support to any family expecting a child who will be born on to the child protection register and for whom an adoption plan has not been made at the moment the child is entered on to the register; to require that a decision be made not later than one year after the child’s birth as to whether or not such a child will be adopted; and for connected purposes

Free School Meals (Children Over the Age of 16) Bill 2012-2013

A Bill to make provision to introduce free school meal arrangements for children over the age of 16 who attend colleges to bring them into line with arrangements for children who attend schools, academies and free schools; and for connected purposes

Mental Health (Discrimination) (No. 2) Bill 2012-13

A Bill to make further provision about discrimination against people on the grounds of their mental health; and for connected purposes.

Crime and Courts Bill [HL] 2012-13

A Bill to establish, and make provision about, the National Crime Agency; to abolish the Serious Organised Crime Agency and the National Policing Improvement Agency; to make provision about the judiciary and the structure, administration, proceedings and powers of courts and tribunals; to make provision about border control; to make provision about drugs and driving; and for connected purposes.

Careers Advice in Schools for 12-16 Year Olds Bill 2012-13

A bill to require schools, together with local businesses and other sectors, to provide a comprehensive careers advice service to 12 to 16 year olds; and for connected purposes.

Voting Age (Comprehensive Reduction) Bill [HL] 2012-13 

A Bill to extend the franchise for parliamentary and other elections, and for referendums, to all citizens over the age of 16 years.

Relationship, Drug and Alcohol Education (Curriculum) Bill 2012-13

A Bill to require the Secretary of State to make provision to include relationship, drug and alcohol education in the national curriculum; and for connected purposes. 

Children (Access to Parents) Bill 2012-13 (Private Members’ Bill)

A bill to require courts, local authorities and other bodies, when determining or enforcing issues of residence and contact, to operate under the presumption that the rights of a child include the right to grow up knowing and having access to and contact with both of the parents involved in the residence or contact case concerned; and for connected purposes.

First Reading in House of Commons: 25 June 2012
Second Reading in House of Commons: 30 November 2012

Social Care (Local Sufficiency) and Identification of Carers Bill 2012-13

A Bill to make provision about the duties of local authorities in relation to the sufficiency of provision of social care and related support; to make provision about the duties of health bodies in England in relation to the identification and support of carers; to make provision in relation to the responsibilities of local authorities, schools and higher and further education organisations for the needs of young carers and their families; and for connected purposes.

Family Justice (Transparency, Accountability and Cost of Living) Bill 2012-13

A Bill to make provision regarding arrangements for children involved in court cases; to make provision about the transparency, administration and accountability of courts and case conferences; to require the promotion of measures to assist families and such other persons as may be specified to reduce the cost of living through lower fuel bills; and for connected purposes.

First Reading in House of Commons: 20 June 2012
Second Reading in House of Commons: 26 October 2012

Higher Education (Fees) Bill [HL] 2012-13

A Bill to ensure that higher education institutions in England, Wales and Scotland may not vary fees charged to British students based on a student's place of domicile and to require organisations using public funds to assist students in paying fees not to vary support based on a student's place of study within the United Kingdom.

First Reading in House of Commons: 17 May 2012
Second Reading in House of Commons: To be announced

Human Trafficking and Exploitation (Further Provisions and Support for Victims) Bill [HL] 2012-13

A bill to make provision about human trafficking offences and exploitation, and about measures to prevent and combat human trafficking and provision of support for victims.

First Reading in House of Lords: 15 May 2012

Statutory Guidance

New Statutory Guidance on Adoption from 1st july 2013

New guidance is coming into effect on 1 July 2013 to support the amendments to the Adoption Agencies Regulations which come into force on that date. The main change is to the adopter approval process covered in chapter 3. To help agencies to become familiar with the new processes in preparation for 1 July, a new Chapter 3 is available via the link on the left of this page. Please note this new guidance applies only from 1 July 2013. The current guidance, which remains live until 30 June 2013, remains available.

http://www.education.gov.uk/aboutdfe/statutory/g0072314/guidance

Reports

Education Committee calls for earlier use of care proceedings

The House of Commons Education Committee's report Children first: the child protection system in England calls for earlier intervention by local authorities to prevent abuse to and neglect of children.  The report finds that the balance of evidence is heavily in favour of care being considered as a viable, positive option at an earlier stage for many children.   The Committee also found that the child protection system is not meeting the needs of older children and must be reviewed urgently. 

The Committee's report examines three key themes: neglect, older children and thresholds for intervention, taking children into care and adoption. On neglect, the Committee found evidence that children are left too long in harmful situation. To encourage earlier intervention, it calls for better training for all front-line professionals in child development and the long-term consequences of neglect. On older children, an urgent review is needed of the support offered to this group in order that services can be re-shaped to meet their needs. Ofsted should monitor and report on the provision made for this group by local authorities, taking into account the views of the children themselves. Practitioners must demonstrate greater willingness to look beyond behavioural problems and recognise signs of neglect and abuse in teenagers.

Courts not following law and procedure in domestic violence child contact cases

A research report recently published by Rights of Women and CWASU – Picking up the pieces – explores the experiences of women and legal professionals in London of the law, policy and practice in child contact proceedings involving women and their violent ex-partners. Rights of Women says that the research reveals negative experiences of the family justice system's response to domestic violence. 

The report found that:

• Despite histories of violence, children refusing contact or expressing terror and distress, unsupervised contact was found to be routinely ordered to abusive fathers.

• 74% of women interviewed said they had concerns for their safety while attending court

• 52% of women interviewed had represented themselves in court proceedings at some stage

• All women interviewed experienced ongoing violence and abuse post-separation

• Most women wanted their child(ren) to have a relationship with the father, despite the violence they had experienced but wanted to ensure that any contact would be would be physically and emotionally safe for them and their children

• 79% of legal professionals reported that regaining power and control was a primary motivation behind applications for child contact by perpetrators of violence

• Only 10% of legal professionals said that judges fully complied with the judicial guidance for dealing with child contact cases where domestic violence is an issue

• 45% of women experienced violence after the making of a contact order, most commonly threats and harassment 

Children in care are usually not offered an independent visitor, says report

The Independent visitors report published by the Children's Rights Director documents children in care's views and experiences of having an independent visitor, as well as their views about not being offered one. The role of the independent visitor is as a volunteer who does not work for social care services, but who is there to visit and 'befriend and advise' a child. The Children Act 1989 provides that a local authority must appoint an independent visitor for a child it is looking after if the authority thinks it would be in the child's best interests. As long ago as 1998 the Joseph Rowntree Foundation concluded that most authorities were neglecting their duties in this regard. Overall, 29% of the children in care who answered the survey had independent visitors. Although children living in children's homes were the most likely to have an independent visitor, the majority did not. The most usual reason for not having an independent visitor is that one was never offered. Only one in five of those without an independent visitor thought they would say no if they were offered one.

Ofsted judges Birmingham’s child protection services inadequate

Ofsted has judged the overall effectiveness of the arrangements to protect children in Birmingham City Council to be inadequate. The latest report notes that during 2011, a major restructure and overhaul of children's services was undertaken. The last unannounced inspection, undertaken in November 2011, found that some progress had made on the areas for development identified at the previous inspection, although most of the areas required further work and these were included in the improvement plan. One of these areas raised continuing concern about the quality of risk management in protecting children from harm.  

Children’s Rights Director’s report highlights the reasons and dangers of running away

The Running away report published by Roger Morgan, Children's Rights Director for England, documents the views of children living in care and asks why they ran away. Children in care were also asked what they thought the dangers of running away were and what could be done to prevent them running. The report updates the previous report on this subject in 2006, and endorses the main findings of that report.  As before, children and young people are clear that there are different categories of running – some to have fun and come back, some to go to stay in places they want to be or with people that they want to be with, but others, concerningly, to run away from a situation in their present placement. Problems causing them to run away included problems with relationships, wanting to change placements, or wanting to escape from stress and take time out to think things through and calm down.

Key messages from the report are:

• Children may run from a placement or problems they cannot cope with, or to a place where they want to be or to a person they want to be with.

• Children running from somewhere they cannot cope may end up in many different places, including on the street.

• Children run away from somewhere they cannot cope for many reasons, including problems of relationships, wanting to change placements, or wanting to escape from stress and take time out to think things through and calm down.

Married couples will be a minority by 2050, warns CSJ report

Families headed by married couples will be in a minority by 2050, according to a new report from the Centre for Social Justice.  

The report – “Forgotten Families? The vanishing agenda” also finds that marriage is increasingly the preserve of the middle and upper classes. Among new parents on low income, only about 50 per cent are married. This rises to nearly 80 per cent for couples on £21,000 to £31,000 a year and to nearly 90 per cent for those earning over £50,000 a year. The report concedes that there have been some "promising" moves by Ministers to promote family stability, such as the publication of their Social Justice Strategy and the release of public money to provide relationship support. But overall the CSJ says that it is deeply dismayed by the lack of progress since the Coalition was formed in 2010, warning that official efforts to promote stable families are "dwarfed by the scale and cost of family breakdown". 

Virtual schools help raise the profile of educational attainment for children in care. 

The gap between the educational achievement of children in care and their peers continues to widen, according to an Ofsted report. “The impact of virtual schools on the educational progress of looked after children” explores the impact virtual schools have on tackling the educational progress of these children. Virtual schools are established by many local authorities and work with looked after children across their catchment as if they were in one school, liaising with the schools they attend, tracking the progress they make and supporting them to achieve as well as possible. The Ofsted report explores the impact of virtual schools in nine local authorities, examining cases and looking at the effectiveness of education support for children in care. In the local authorities visited, virtual schools have raised the profile of educational attainment for children in care, promoted much better communication between professionals, increased the involvement of carers in children's education, and helped to improve attendance and reduce exclusions. However, there was little evidence that they were yet able to reduce the attainment gap between looked after children and their peers. Progress between Key Stages 3 and 4 was generally slower than during earlier key stages, and improving the percentage of those attaining five or more good GCSE passes, including English and maths, remained a challenge for most authorities.

Lord Chief Justice’s report marks the increase in rise of Parenting Information Programmes (PIPs)

The latest Lord Chief Justice's report has been laid before the House of Lords. The Report focuses on the work of the courts and on the wide range of statutory responsibilities which guide his role. In the section relating to the family courts, the Lord Chief Justice notes the increase in the use of parenting information programmes (PIPS), employed at an early stage of proceedings in disputes concerning residence and contact arrangements.

Research conducted in early 2011 with parents referred to PIPs found that despite initial reservations, most parents reported finding the experience of attending a parenting programme entirely acceptable and generally supportive. Recommendations focussed on how the programme providers could further develop the PIPs to assist parents to resolve their differences away from the court, where it is safe to do so.

Cafcass publishes its annual report

Cafcass has published its annual report and accounts for the year from April 2011 to March 2012.

During the year:
• Cafcass received 10,218 care applications, an 11% increase on 2010-11.
• As reported previously, applications received between May 2011 to February 2012 were the highest ever recorded for these individual months. January 2012 saw the highest figure ever recorded with 916 applications.
• By the end of March 2012 99.3% of care cases were allocated to a Children's Guardian. 0.1% were unallocated and 0.7% were allocated on a duty basis.
• Private law applications fell 4.4% from 43,712 in 2010-11 to 41,778 this year.
• Attendance at Separated Parents Information Programmes increased from 13,000 to 18,279 adults.
• Sickness absence fell to 10.7 days on average for practitioners and 10.1 days for all staff (compared to 12.8 days and 11.4 days in 2010-11 respectively).

News 

Catholic Care cannot change its objects to exclude same-sex couples as adoptive parents

The adoption agency, Catholic Care, has lost its appeal against the ruling of the First Tier Charity Tribunal that it cannot change its Memorandum of Association to exclude same-sex couples from using its adoption service. 

Catholic Care had sought permission to amend the relevant part of its Memorandum of Association to read: "The Charity shall only provide adoption services to heterosexuals and such services to heterosexuals shall only be provided in accordance with the tenets of the Church. For the avoidance of doubt the Roman Catholic Bishop of Leeds from time to time shall be the arbiter of whether such services and the manner of their provision fall within the tenets of the Church." 

The application was rejected at first instance and the agency's appeal was dismissed by Mr Justice Sales.

Shared parenting' provision to be inserted into Children Act section 1

The Department for Education has announced that it proposes to introduce amendments to the Children Act 1989 in order to provide for a presumption of shared parenting. A new section 1 (2A) will be inserted into the Act as follows:

"(2A) A court, in the circumstances mentioned in subsection (4)(a) or (7), is as respects each parent within subsection (6)(a) to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare."

The restrictions upon the presumption will be elaborated in new sub-sections (6) and (7) as follows:

"(6) In subsection (2A) "parent" means parent of the child concerned; and, for the purposes of that subsection, a parent of the child concerned -

(a) is within this paragraph if that parent can be involved in the child's life in a way that does not put the child at risk of suffering harm; and 

(b) is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child's life would put the child at risk of suffering harm whatever the form of the involvement.

(7) The circumstances referred to are that the court is considering whether to make an order under section 4(1)(c) or (2A) or 4ZA(1)(c) or (5) (parental responsibility of parent other than mother)."

The explanatory notes state that the purpose of this amendment is to reinforce the importance of children having an ongoing relationship with both parents after family separation, where that is safe, and in the child's best interests. The effect of this amendment is to require the court, in making decisions on contested section 8 orders; the contested variation or discharge of such orders; or the award or removal of parental responsibility, to presume that a child's welfare will be furthered by the involvement of each of the child's parents in his or her life, unless it can be shown that such involvement would not in fact further the child's welfare. 

Children in need numbers fall slightly in last 12 months

The Office for National Statistics has published final figures on the numbers of children referred to and assessed by children's social services. It includes information on the characteristics of children in need and information on children who were the subject of a child protection plan for year ending March 2012.

The key points from the release are:

• There were 369,400 children in need at 31 March 2012. This compares with 382,400 for the previous year.

• The highest rate of children in need was in Middlesbrough where the rate was 741.6 per 10,000 and the lowest was in Wokingham where the rate was 145.3.

• There were a total of 739,300 episodes of need throughout the year (compared to 735,500 in 2011 and 694,000 in 2010).

• There were 395,300 episodes of need starting between 1 April 2011 and 31 March 2012 (compared to 393,000 last year) and 369,900 episodes of need that came to an end.

• 'Abuse or Neglect' continued to be the most common primary need, increasing from 44.0 per cent of new cases last year to 45.5 per cent this year. Family dysfunction was the second most common need at similar levels to last year (17.1 per cent in 2011, 18.1 percent in 2012) 

Care applications doubled over the last four years

In October 2012, Cafcass received a total of 937 applications. This is a 9% increase on October 2011 levels. For the first seven months of the 2012-2013 period care applications have numbered 6,323. For the same period in 2008-2009 they totalled 3,104.

Applications received during all months bar June this financial year have been the highest ever recorded by Cafcass for these individual months. The 982 applications received in both May 2012 and July 2012 were the highest ever recorded for a single month.

Inquiry launched into asylum support's effect on children

A group of cross-party MPs and peers have joined forces today to launch an inquiry into the way the asylum support system meets the needs of children and young people. The panel, led by former Children's Minister Sarah Teather MP, will explore how children and young people are supported under the Home Office system for asylum seekers. The inquiry, supported by The Children's Society, will take evidence from a range of stakeholders to build a clearer picture of whether the support is adequate to protect these children and young people's welfare, in line with the government's obligations.  There has been no formal review of the asylum support system and whether their needs are being met since 2009, when a statutory duty on the Home Secretary to safeguard and promote children's welfare came into force. Parliamentary questions on asylum support rates have revealed that asylum support has fallen below intended levels. The panel would like to hear from children, young people and families with experiences of the asylum support system, as well as from other agencies, experts and organisations working in this area. 

Hague Convention 1996 comes into force on 1st November 

The Hague Convention 1996 on the International Protection of Children comes into force in the UK from 1 November 2012. The Convention has uniform rules determining which country's authorities are competent to take the necessary measures of protection. These rules, which avoid the possibility of conflicting decisions, give the primary responsibility to the authorities of the country where the child has his or her habitual residence, but also allow any country where the child is present to take necessary emergency or provisional measures of protection. The Convention determines which country's laws are to be applied, and it provides for the recognition and enforcement of measures taken in one Contracting State in all other Contracting States. In the Annual Report of the Office of the Head of International Family Justice for England and Wales Lord Justice Thorpe said that the utility of the Convention will be principally in the field of international contact orders. The 1996 Convention enables contact orders to be automatically enforceable internationally as though the order had been made as a domestic order in the court which is asked to enforce. Article 23 of the 1996 Convention should also, by providing for advanced recognition, overcome the absence of jurisdiction to make mirror orders exposed in the case of Re P (A Child: Mirror Orders) [2000] 1 FLR 435.

Number of opposite sex cohabiting couples has doubled since 1996

The number of opposite sex cohabiting couple families has increased significantly, according to the latest statistical bulletin on families and households released by the Office for National Statistics. In 1996 there were 1.5 million such couples. That has risen to 2.9 million in 2012. The number of dependent children living in opposite sex cohabiting couple families doubled from 0.9 million to 1.8 million over the same period. In 2012 there were 18.2 million families in the UK. Of these, 12.2 million consisted of a married couple with or without children. 38 per cent of married couple families had dependent children, compared with 39 per cent of opposite sex cohabiting couple families. There were nearly 2.0 million lone parents with dependent children in the UK in 2012, a figure which has grown steadily but significantly from 1.6 million in 1996. There were 26.4 million households in the UK in 2012. Of these, 29 per cent consisted of only one person and almost 20 per cent consisted of four or more people.

DoE launches data pack and charter for care leavers

The Minister for Children, Edward Timpson, has written to directors of children's services, asking them to take specific action to improve the outcomes of care leavers. The Department of Education has produced a care leavers data pack which analyses in detail the attainment outcomes of care leavers when set against other aspects of their lives. Key findings included in the pack are:

• The number of young people aged 16 and over leaving care has risen each year from 8,170 in 2007 to 10,000 in 2012. 

• More than half of these young people (63%) were aged 18 and over at the time of leaving care. 19% were aged 16 and 18% were aged 17. 

• The number of 19 year olds who were looked after aged 16 was 6,610 at 31 March 2012. This is a rise from 6,290 at 31 March 2011. 

• 2,400 (36%) of young people in 2011-12 were not in education, employment or training. In 2010-11, this figure was 33%.   

Information Commissioner emphasises the need for sensitive personal information to be encrypted

The Information Commissioner's Office (ICO) is reminding organisations that sensitive personal information should be encrypted when being stored and sent electronically. The news comes as Stoke-on-Trent City Council receives a monetary penalty of £120,000 following a serious breach of the Data Protection Act that led to sensitive information about a child protection legal case being emailed to the wrong person.

Demand for child protection continues to rise, say Directors of Children’s Services 

Levels of demand for child protection and care services continue to rise nationally, new research shows, and a majority of directors of children's services fear that pressures will continue to rise in future years. Local authorities are having variable amounts of success in using early help services to reduce demand on child protection social workers, a newly published report has found. The third phase of the safeguarding pressures research, published by the Association of Directors of Children's Services, found overall increases nationally masked significant variation at a local level, with some authorities seeing rises of up to 100% in some types of activity, while others had seen decreases of 30% or more. Those who had seen a decrease in child protection activity attributed the decline to: 

• increasing early help services, 

• better multi-agency working and 

• increasing the speed with which children are found permanent placements. 

New approaches needed to reduce cross-boundary care placements, say agencies 

An article in The Guardian - Looked-after children: care should be in the community - by Louise Tickle considers the growing trend of local authorities placing children in residential care out of their area.  The article presents the views of Phil Frampton, founder of the Care Leavers' Association, Richard Green, child protection manager at Cafcass, Debbie Jones, President of the Association of Director of Children's Services, Jill Sheldrake, director of social care at Together Trust, and Tom Rahilly, head of strategy for looked-after children at the NSPCC.

Care applications for 6 months to September up 8% on last year

Between April and September 2012 Cafcass received a total of 5,374 applications. This figure is nearly 8% (7.9%) higher when compared to the same period last year. Applications received during all months bar June this financial year have been the highest ever recorded by Cafcass for these individual months. The 982 applications received in both May 2012 and July 2012 were the highest ever recorded for a single month. The comparatively lower demand in June 2012 is believed to be due to the lack of working days available due to the special bank holidays this year.

Draft Legislation on Family Justice Published 

September 2012: The Government has published draft legislation on family justice for pre-legislative scrutiny. The Department for Education and the Ministry of Justice are planning for these changes to form part of a larger package of children and families legislation in the near future. The provisions would introduce changes to the operation of the family justice system, as recommended by the Family Justice Review and accepted by the Government in its response published in February 2012. Some of the changes involve amendments of primary legislation.

Fostering System in Crisis, it is Claimed

Daily Telegraph article vividly describes the fostering regime creaking at the seams."Who'd be a foster parent?", an article by Julia Llewellyn Smith and published in the Daily Telegraph, paints a picture of a fostering system under enormous pressure. The article describes how there are 87,000 British children in care today with "a new child coming into care every 22 minutes”. Anthony Douglas, Chief Executive of CAFCAS, describes a 57% increase in the number of children in care over the past four years. A variety of factors – including greater readiness to intervene and to do so much earlier by social services, more rigorous scrutiny of prospective foster parents and increased family breakdown caused, or contributed to, by financial hardship – are all having a major impact on the fostering landscape.

Latest amendments to the Family Procedure Rules 2010

The Family Procedure (Amendment No. 3) Rules 2012 have been laid before Parliament and come into force on the 30th September 2012. Rule 2.3 of the Family Procedure Rules 2010 makes provision for interpretation. Rule 3 of these Rules amends the definition of "RSC" and "CPR" in rule 2.3(1), and adds a new rule 2.3(4), to make it clear that when the FPR apply certain rules of the Rules of the Supreme Court and County Court Rules, they are applying those rules as they appeared at a fixed point in time, and not subject to any amendment or revocation effected after that time.

Rules 4 and 5 make amendments in Part 12 of the FPR to reflect the fact that in relation to the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement, and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children (referred to in the rules as "the 1996 Hague Convention"), there are separate Central Authorities for England and for Wales.

The amendment rules can be accessed here.

Adoptions rise 6% in 2011

62% of adopted children are aged one to four years. The latest statistical bulletin from the Office for National Statistics reveals that the number of adoptions in England and Wales in 2011 was 4,734, an increase of 6 per cent since 2010 when there were 4,481 adoptions. During this period adoptions also increased in Scotland, from 466 in 2010 to 494 in 2011.

In 2011, most children adopted (62 per cent) were aged between one and four years, rising from 58 per cent in 2010. The percentage of children adopted who were born outside of marriage increased slightly to 82 per cent in 2011, up from 80 per cent in 2010.

Disabled children’s protection at risk, warns Ofsted

Disabled children are at risk of slipping through the child protection net, according to a new Ofsted report. The study found that many children and their families receive good multi-agency early support but too many children had child protection needs which went unidentified. Protecting disabled children: thematic inspection report was commissioned to evaluate the effectiveness of work to protect disabled children and young people at all stages from early support to the identification of and response to child protection concerns. It examined the actions taken in 12 local authorities, examining 173 cases, to ensure the protection of disabled children and young people, identifying the key factors which promoted effective protection and the barriers to achieving this. It considered how well local authorities and Local Safeguarding Children Boards evaluate the impact of the work done across agencies and by professionals to ensure the effective protection of disabled children and young people.

The report can be read in full and summary forms here.

Cases 

F (A Child) [2012] EWCA Civ 1364

The parents were Spanish, were not married but had been in a relationship since 1993.  The parents and their 7 year old child came to England in 2009.  After their relationship broke down, the child and the father remained in England and the mother returned to Spain but with the understanding she claimed that the child would later join her in Spain.

Proceedings eventually led to a leave to remove application by the mother and both parties sought a shared residence order.  During the intervening months the child lived with the father.  At one stage in the proceedings under Hague it was held by Holman J that the child was habitually resident in England. At the final hearing of the leave to remove and shared residence order applications Judge Marston ordered a shared residence order and permission to the mother to permanently remove the child from the jurisdiction.

The father appealed on the basis that neither Payne v Payne [2001] and K v K (Children: Permanent Removal from Jurisdiction) [2012] (both authorities and the welfare checklist that the judge had gone through) were necessarily authorities that applied to this case because the father was the primary carer and before the shared residence order was made at the hearing he was again, the primary carer.

Munby LJ held that there was no error of law in the approach adopted by the judge and in fact the attempt to label a case was unhelpful.  In support of his view, Munby LJ quotes from the judgment of Black LJ in K v K and highlights that where she states that whether a case is a Payne case or a Re Y case is not something with which parties should become bogged down. Munby LJ states very clearly that the focus from beginning to end must be the child's best interests and that the child's welfare is paramount. Appeal dismissed.

Re L [2012] EWHC 3069 (Fam)

The child had been the subject of Hague Convention proceedings which resulted in an order for the Mother to return the child to the UK from the USA which the Mother ultimately complied with. The Children Act 1989 applications were then heard.  

Mr Steven Bellamy QC sitting as a deputy High Court Judge reviewed the existing case law in relation to relocation cases and summarised the law as follows: The child's welfare is paramount.  Regard must be had to the statutory checklist in section 1(3) of the Children Act 1989, although different weight will be attached to the checklist matters depending on the circumstances of the case. Regard must also be had to the impact of refusal on the child's welfare, the genuineness of the applicant's motive, whether the proposals for relocation were realistic and the genuineness of the respondent's opposition. 

The Judge refused the Mother's application for leave to permanently remove the child from the jurisdiction. He did not accept that the Mother would sustain contact if allowed to relocate and in any event did not find that the parents had sufficient funds to sustain such contact. He found that the Mother's response to a refusal of her application would not impact adversely on the child's welfare. He accepted that the Father's opposition was based on the child's welfare and his concerns had substance. The child's welfare required him to have a relationship with both parents to meet his long term emotional and developmental needs which could not be met if relocation was allowed.   

The Judge made a shared residence order on the basis that there were welfare factors which positively supported a shared residence order and none to indicate that a shared residence order was not in the child's paramount welfare. 

B (Children) [2012] EWCA Civ 1275

The local authority applied for interim care orders in respect of two children: C, aged 7 months and D, aged 8 and a half years. The mother of D was S, aged 49. The mother of C was D's daughter, L, who was aged 25. The father of both children was CB. He had been in a relationship with L, during the course of which he developed a sexual relationship with L, his quasi-step daughter, from at least the time of her being 17. L had been removed from S's care during care proceedings in 1991 when she was aged 4 but spent considerable time with her mother from age 16 onwards. 

At the time of the hearing, both mothers and both children were living together as one household. The local authority's concerns centred around (1) a sexual risk arising out of the mothers' lack of sexual boundaries and inability to protect the girls from sexual risk, (2) neglect and a chaotic household and (3) the mothers' lack of co-operation with professionals. 

At first instance, the Recorder found that the threshold was not met and, in any event, that interim removal was not justified. The local authority appealed to the Court of Appeal.

Hughes LJ noted that there was some lack of clarity as to whether the Recorder had considered the interim threshold in section 38(2) or the final threshold in 31(2). In any event, the Recorder's conclusion that the threshold was not met could not be upheld. The combination of neglect, lack of stimulus and sexual risk was amply sufficient to pass the limited test set by s38(2). Hughes LJ held that the Recorder had been plainly right to conclude that interim removal was not necessary or proportionate. He held the sexual risk to the children was "a good deal less than immediate" (para. 35). As C was a baby, the "risk of significant sexual damage to her between now and the final hearing [was] not significant", and in respect of C, there were strict agreements which the mother's, according to the Guardian, would probably observe in the short term. If they did not, the position may have to be revisited. 

Hughes LJ concluded by rejecting the local authority's criticism of the Recorder for giving directions for a final hearing despite finding that the threshold conditions were not met. His interim decision did not preclude a final care order being made and the local authority's stance on this point, in Hughes LJ's view "might suggest … that the local authority thought it could achieve a situation in which the interim hearing was effectively pre-emptive of the final hearing" which was not what interim hearings were for" (para. 37) as was made clear by all the authorities, including Re: GR (Children) & Ors [2010] EWCA Civ 871.

Tomlinson and Toulson LLJ agreed. Appeal dismissed.

Re G [2012] EWCA Civ 1233 

In Re G [2012] EWCA Civ 1233 the Court of Appeal has dismissed the appeal by a father who wanted his children to attend a strictly orthodox school in opposition to the mother's choice. 

The parents, who married in 2000 and separated in 2010, come from families who for generations have been part of the Chassidic (Hassidic) or Chareidi community of ultra orthodox Jews. The five children, aged between 11 and 3, remained living with the mother post separation albeit with extensive contact to the father. At the time of separation and until the matter came before HHJ Copley in June 2012 the children were being educated in single sex ultra orthodox schools attended by the children of members of the Chareidi community. 

The mother applied for an order permitting her to enrol all of the children in new, less orthodox co-educational schools where the educational opportunities were, she argued, significantly greater. The father opposed the application, wanting the children to continue to attend the more strictly orthodox schools of his choice. In July 2012 HHJ Copley directed that the children were, with effect from the new term starting in September 2012, to attend the schools proposed by the mother rather than those proposed by the father.The father sought permission to appeal the order. 

Munby LJ, giving the lead judgment in the Court of Appeal, said that the children's education was an issue of transcendental importance not merely to the parents and the children but also to the Chareidi community and to the larger society of which it forms part.

Consideration was given to the history of and what is meant by the term  a child's "welfare" within s.1 of the Children Act 1989 and what standard or yardstick  should  be used to assess "welfare";  whether the mother's arguments based on education should prevail over the father's arguments based upon way of life; and what in today's society is the task of the ordinary reasonable parent and what  is the task of a judge acting as a "judicial reasonable parent".

In answering the last matter, the court proposed three answers: firstly that equality of opportunity is a fundamental value of society; secondly that society fosters, encourages and facilitates aspiration; and thirdly that society's objective must be to bring the child to adulthood in such a way that the child is best equipped both to decide what kind of life they want to lead and to give effect to their aspirations. The Court found HHJ Copley's reasoning and his decision was far from being plainly wrong and was in all probability right. HHJ Copley was entitled to conclude on the evidence that the mother's chosen schools would provide infinitely superior opportunities; that the CAFCASS officer's analysis of the emotional impacts on the children and her assessment of which school environment would  best enable religious choices to be made in later life was reliable; and that on balance the children's best interests were served by what the mother was proposing.

Re C (A Child) [2012] EW

A 10 year old Jewish girl was permitted by the court to convert to Christianity. The County Court heard that the girl wished to be baptised at the church now attended by her father, who has himself become a Christian. Denying the mother a prohibited steps order, HHJ Judge John Platt has permitted a 10-year-old Jewish girl to convert to Christianity against the mother's objections that she had been "brainwashed" and was too young to change faith.

In a letter to the girl explaining his judgment Judge John Platt said: "Sometimes parents simply cannot agree on what is best for their child, but they can't both be right. Your father thinks it is right for you to be baptised as a Christian now. Your mother wants you to wait until you are older, so they have asked me to decide for them. That is my job."

B (Children) [2012] EWCA Civ 1082

The mother made an application for financial relief under Schedule 1 to the Children Act 1989 on 11 August 2011. The father was a German citizen and has lived his life in Germany. He is a lawyer with a leading firm of lawyers in Germany. The mother was of dual nationality; she was born in the UK to a British father and a German mother. She had lived her adult life in Germany. She also qualified as a lawyer in that jurisdiction. The parties married in 2001. The two boys were born there and they lived as a family until April 2009 when the parties separated. The mother was awarded "sole custody" of the children in June 2011 (a concept which in German law permits the parent with it to make more or less all decisions relating to the upbringing of the child, including international relocation). The mother then made a number of trips to the UK and on 17 July she commenced a short-term tenancy in Hammersmith which matured into a twelve-month shorthold tenancy some time later.

The mother's case was that from June 2011 she had put into place a settled plan to move to the UK. In that respect she was challenged by the father and cross examined on a number of points, in respect of all of which the judge, Nicolas Francis QC, sitting as a Deputy High Court Judge, found her to be unreliable. However, he held that she had nonetheless moved her centre of interests to England by August 2011 and consequently, that she was habitually resident here and that the Court had jurisdiction. The father applied for permission to appeal.

At first instance it had been agreed by Counsel that the Judge should direct himself by reference to the decision of Peter Jackson J in the case of V v V [2011]. Thorpe LJ questioned that agreement. He stated that whether the court is considering habitual residence under Article 3 or Article 8 of the Brussels II Regulation or alternatively under Article 3 of the Maintenance Regulation, the EU case law was to be considered first and foremost. Consequently, Re A (Area of Freedom, Security and Justice) [2009] and the later case of Mercredi v Chaffe [2011] should have been the source of the judge's direction. He went on to say that the ECJ had made clear that the length of a person's stay was only an indicator in the assessment of the permanence of the residence, and that assessment must be carried out in the light of all the circumstances of fact which were specific to the individual case.

Winter v Winter [2010] EWHC 3825 (Fam)

Committal proceedings and judgment summons relating to breaches of orders for the payment of child maintenance. Sentence of one year’s imprisonment imposed, suspended on terms. The parties married in 1992 and had three children. Following the breakdown of the marriage Mrs Winter applied to remove the parties' child permanently to Sweden.   There were also financial issues arising from the breakdown of the marriage. These were resolved initially by consent. Mr Winter applied successfully to reduce periodical payments to the wife and children. District judge Walker ordered him to pay £410 per month for the children and nominal payments to Mrs Winter. Mr Winter did not pay any maintenance for the children. Mrs Winter sought to enforce the order.

On 18 December 2009 Mr Winter agreed to bring into the jurisdiction £32,000 from the sale of a property in Sweden. Mr Winter failed to do so and applied the monies elsewhere.   Mrs Winter sought to commit Mr Winter for breach of the order that he bring £32,000 into his UK bank account and a judgment summons in relation to the order for maintenance. The judge considered that Mr Winter had breached numerous court orders and was in contempt for his failure to comply with the 18 December 2009 order. His approach to the courts was disrespectful. The judge sentenced Mr Winter to a period of one year's imprisonment suspended on terms. Those terms were effectively to ensure that Mr Winter paid £32,000 in various tranches. In particular, they provided that if he should fail to make any of the payments ordered, the full sum would become due, and if he should fail to pay the full sum, the prison sentence would become immediately operable. The judgment summons was adjourned pending an appeal by the husband's on this matter.