QUARTERLY DIGEST: Summary Of Recent Case Law (Family: Public Law Children)

Appeal Against An Adoption Order

Re J [2018] EWFC 8 (Fam)

Fr’s appeal out of time against the grant of an adoption order in favour of the child’s step father was granted. M and the step father had obtained the adoption order by falsely claiming that they did not know the identity or whereabouts of the child’s father. Fr’s assertions that the LA had been unable to carry out their statutory enquiries and that the court had been materially misled were unchallengeable.

Care Proceedings And Medical Treatment

AB (A Child) [2018] EWFC 3

Munby P gave observations in relation to important jurisdictional and procedural issues to be considered before embarking upon care proceedings against otherwise unimpeachable parents, in disputes about appropriate medical treatment and support of a child.

Deprivation Of Liberty

Re A-F (Children) EWHC 138 (Fam)

This is an important case in which Munby P  set out the procedures that are to be carried out when there is a care order involving a deprivation of liberty.

Experts

Buehrlen and Buerhlen [2017] EWHC 3643 (Fam)

Moor J dismissed the father’s appeal against the decision of HHJ Scarratt that it was not necessary to instruct an expert as to earning capacity. The judge had correctly applied the test of necessity as described in Re HL [2013] EWCA (Civ) 655, that evidence that is indispensable would fall into the category of necessity whereas evidence that is merely useful, reasonable or desirable would not.

Although they arise from different statutes, the necessity test in financial remedy cases is the same as the necessity test in children cases.

Fact Finding

 R (Children) [2018] EWCA Civ 198

Fr’s appeal against findings of fact that he had used excessive force and unlawfully killed the mother was granted. The court ordered a re-trial: criminal law concepts should not be applied in family proceedings. The purpose of the family court is to establish the facts relevant to welfare.

The trial was unfair to Fr because of the late disclosure of documents that were at the heart of the fact finding, which left him with insufficient time to prepare.

St Helens Council v M and F (Baby With Multiple Fractures- Rehearing) [1018] EWFC 1

Jackson LJ re-opened findings of fact where he had previously found that one or both of the parents had caused multiple fractures to their 5 month old baby. Following the original factfinding hearing, the parents were subsequently acquitted in criminal proceedings after they called two new experts who opined respectively that the fractures could be the result of healing rickets or the result of vitamin A excess. On rehearing the evidence including the new experts, the judge confirmed the original findings of fact.

Guardian’s Flawed Analysis

F v H and Anor [2017] EWHC 3358 (Fam)

Russell J overturned the decision of the circuit judge at first instance to grant M a child arrangements order. There had been a long and protracted history and the judge had erred in relying upon the opinion of the newly appointed r16.4 guardian who had read only limited papers, had met the parents and the child only briefly and who had not challenged M’s account of events.

Welfare/ Adoption

Re DAM (Children) [2018] EWCA Civ 386 CA

“…. nothing else will do ….” only applies to adoption