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When enough is enough – Court of Appeal Decides Against International Placement

Avaia Williams (Pupil) and Deborah Shield review the Court of Appeal’s reasoning in the case of <a href="https://caselaw.nationalarchives.gov.uk/ewca/civ/2025/214" target="_blank" rel="noreferrer noopener">Re M (A Child) (Placement Order) [2025] EWCA Civ 214</a>. A decision concerning the placement options for a young boy, M, where the court was asked to grapple with placing the child for adoption or delaying proceedings and determination to support a possible family placement abroad.  The judgment, given by Lady Justice King, is infused with the concept that delay is prejudicial to a child, and that there comes a point within proceedings where ‘enough is enough’ and the nettle must be grasped.  Background  M was born during existing care proceedings relating to the parents other children. M was initially placed with the mother under an Interim Care Order, however, following breaches of the safety plan, M was placed into foster care.  The mother put forward M’s aunt and uncle, who lived in Pakistan, as alternative carers. These alternative carers were supported by the Local Authority until August 2024, at which point, the Local Authority moved to a plan of adoption within the UK.  By the time of the final hearing in October, a positive Children and Families Across Boarders (“CFAB”) assessment had been completed of the aunt and uncle. This assessment raised some concerns and uncertainties, such as the level of education that would be available to M and the impact on the family unit in Pakistan given the uncle may need to work extended hours and abroad. That being said, the assessment recommended the aunt and uncle as:  “suitable to be considered to care for the children (sic) if they are provided with financial support.”   Given the positive CFAB assessment, the aunt and uncle sought an adjournment at the final hearing to allow a full assessment of them to be carried out within the UK (as would be required to affect such a placement abroad). This was refused by the court, and a Placement Order was made. The judge’s reasoning was encapsulated by the placement with the aunt and uncle being “fraught with uncertainties”, at [41] the Court of Appeal quoted the judges reasoning that:  “…there is sadly no clear and confirmed timescale for the assessment to be completed, and no guarantee that it will be positive (though I accept, there are grounds for optimism that it would be based on the CFAB assessment). [M] has no existing relationship with the Aunt and Uncle (although they have seen him over video calls in the first few weeks of his life, he does not know them, and they speak a different language  I have balanced these very real and in my judgment legitimate concerns with the potential positives in the court sanctioning delay for assessment to take place, because, if positive, it would enable [M] to be placed with an extended family member, in a cultural and religious match, with the possibility for ongoing relationship (even if limited) with his parents and other family members.”  Grounds of Appeal  The aunt and uncle appealed on five grounds, that the judge was wrong to:  “i) Accept that Accept that a plan to place M with his aunt and uncle was “fraught with uncertainties”.  ii) Conclude that it would be akin to 6–12 months before a successful placement could be achieved if an assessment of the aunt and uncle were positive.  iii) Conclude that there was a real possibility that the assessment would be negative.   iv) Conclude that an adjournment was not within M’s reasonable timescales for achieving a permanent placement absent direct evidence as to timescales to place M for adoption.  v) Fail to consider if a “robust and focused timescale” could have been imposed to lead to an expeditious resolution of proceedings following further assessment of the aunt and uncle.”  In submissions, Teertha Gupta KC, focused on the third and fifth grounds of appeal, having conceded there were clear uncertainties with the plan and that the assessment for 6-12 months was something the judge could have reasonably assessed.  Ground iii  With respect to ground iii, the Court stated at [53]  “That there was a real possibility that the assessment might fail was in my judgment an inevitable consequence of the uncertainty inherent in the whole complicated plan; for example, it may simply not have been viable because the funding was no longer available from the cash-poor local authority or the applications for visas may be refused. M may himself have found the introduction to his aunt and uncle with the language barrier just too difficult and, as had been identified by Ms Rafiq, there were issues with schools and the home conditions. These were all potential stumbling blocks. For my part I can see that there was also a significant risk that the demands on the aunt and uncle might be simply too great. Should the matter have been adjourned then, providing they managed to obtain visas, the family would have relocated to a strange country for an unspecified period of time for assessment and, if successful, the uncle would then return to Pakistan with the two older (but by no means grown up) children. Once home they would have to manage without their primary carer while their father worked punishingly long hours, potentially for many months, whilst court proceedings took their course in both the UK and Pakistan, proceedings which would be necessary in order to provide essential protection for M’s position in Pakistan.”  It was clear that the judge did consider the positives within the CFAB assessment, notably the cultural match and a family placement, however, drawing on Re W (A Child) (Adoption: Grandparents Competing Claims) [2016] EWCA Civ 793, the Court reaffirmed at [55] that:  “As in any case where it is hoped that a family placement can be achieved it is important, as was perhaps not recognised until too late in this case, that there is no presumption or right for a child to be brought up by a member of his or her natural family.”  On ground iii, the court concluded at [56] that:  “Ultimately the judge concluded that M’s welfare demanded that he be placed for adoption and that when she performed a proportionality cross check she said she was “satisfied that, despite its draconian nature and lifelong consequences, adoption is a necessary and proportionate interference – in short, nothing else will do”.”  Ground v  As to ground v, it was submitted by Teertha Gupta KC, that, given the delay already in place, there was no requirement for the court to now “bring down the guillotine” and that an extension should be granted under s.32(5) Children Act 1989. The Court relied on Sir James Munby’s assessment in Re S (a child) (Interim Care Order: Residential Assessment) [2015] 1 WLR 925, where the then President held at [34] of that judgment that:  “I repeat, because the point is so important, that in no case can an extension beyond 26 weeks be authorised unless it is "necessary" to enable the court to resolve the proceedings "justly". Only the imperative demands of justice – fair process – or of the child's welfare will suffice…”  Further, the Court drew on the judgment of Peter Jackson LJ in Re S-L (Children) [2019] EWCA Civ 1571, where the Court of Appeal in that case, at [12], decided that:  “In cases involving children, there can sometimes be good reasons for adjourning a final decision in order to obtain necessary information. The overriding obligation is to deal with the case justly, but there is a trade-off between the need for information and the presumptive prejudice to the child of delay […] public law proceedings are subject to a statutory timetabling imperative. Section 32(1)(a) provides that the court must draw up a timetable for disposing of the application without delay and in any event within 26 weeks; subsection 32(5) allows an extension only where the court considers it necessary to enable the proceedings to be resolved justly.”  The Court considered the crucial age at which M now was. M was entering critical phases for developing his attachments.  On ground v, the court concluded at [64] that:  “…the judge’s careful and sympathetic analysis of the application for an adjournment for further assessments of the aunt and uncle cannot be faulted and in my judgment she reached the right decision given the uncertainties inherent in the proposed plan for placement in Pakistan and the urgency of achieving permanency for M.”  Comment  Tt has been 12 years since the Supreme Court gave the landmark ruling in Re B (A Child) [2013] UKSC 33, and the Court of Appeal gave guidance in Re B-S (Children) [2013] EWCA Civ 1146. It was hoped that the Court of Appeal may have taken this opportunity to provide further guidance on the concept of “nothing else will do” given this nebulous concept has caused much debate and concern for practitioners across the board.  The concept of “nothing else will do” creates a paradox when paired with a clear statutory time-limit of 26-weeks for resolving children proceedings. How can it be said, on the purely factual basis in this case, and countless others, that nothing else will do for this child. Whilst the judge was evidently right to conclude that the assessment and placement with the aunt and uncle was an uncertain placement, it is a comment which can be applied to every placement that results from care proceedings, whether adoption or otherwise.  What is clear, is that this child had a clear opportunity to be placed within his family unit. Notwithstanding the decision of the Court of Appeal, and previous decisions, that there is no ‘right’ to such a family placement, it is incontestable that a family placement has inherent benefits and is the preferred outcome where that placement is safe (were this not the case, Local Authorities would have no duty to assess connected carers). So, whilst the assessment of the aunt and uncle was not clear, it was optimistic and was a viable way forward. As such, on a literal interpretation, it could not be said that “nothing else will do” but placing M for adoption.  It is clear that “nothing else will do” comes with several caveats such that the actual rule, or at least how it is applied in courts, appears to be more akin to “nothing else will reasonably or realistically do, given the welfare needs of the child”. As the Court of Appeal in Re M have made clear, delay, especially where 26-weeks has been surpassed, will clearly require that any alternative plan be more and more realistic and more and  more reasonable than it otherwise may have to be at the start of proceedings (this being encapsulated by the Local Authorities approach here).  What can be learned from this case, is the need for Local Authorities, and those representing parents, to be proactive in identifying and assessing potential kinship carers at the earliest possible stage of proceedings. ‘Front-loading’ these assessments can help avoid the late emergence of an overseas relative or other connected person, which often places the court in the difficult position of choosing between exploring a potentially appropriate kinship placement and meeting strict statutory deadlines. By initiating thorough kinship assessments at the outset, local authorities not only ensure transparency and fairness but also mitigate the risk of children lingering in uncertain temporary arrangements. From the parental perspective, practitioners should advise parents on the importance of promptly disclosing potential family carers and providing all necessary details as soon as possible, thus offering a more realistic chance of success for kinship placements if they are viable.  A clear problem in practice is the misunderstanding of twin tracking by a) the parents; and b) the prospective carers; it must be made abundantly clear to those involved in proceedings, that suggesting such connected carers in no way takes away from the assessment of parents or the court dealing with proceedings.  Local authorities and practitioners acting for parents must collaborate to address matters such as visa applications, relocation logistics, funding arrangements, and compliance with both UK and foreign legal systems at an early stage. Where an international assessment is a serious possibility, forward planning, including formal engagement with international bodies like CFAB and seeking specialist advice, should form part of the initial case strategy, ensuring clarity around timelines, financial support, and the child’s specific educational or medical needs if placed overseas. It appears that, in such cases, the recommendations made by the Public Law Working Group in respect of international adoption may offer valuable steering.  Deborah Shield, led by Teertha Gupta KC, acted for the aunt and uncle in the Court of Appeal.

Neurodiversity and the Family Courts – New Guidance Seeks to Bridge the Gap

Avaia Williams and Chloe Branton provide an overview and analysis of the new guidance issued by the Family Justice Council on neurodivergence within the family courts.  Introduction  Neurodivergence is a broad term, with the phrase considered to be coined by the sociologist Judy Singer. It commonly refers to people who are diagnosed or present with ADHD, Autistic Spectrum Conditions, and neurodevelopmental conditions such as Dyspraxia, Dyscalculia and Dyslexia. However, the umbrella remains undefined by law, as such the term can include wider, and potentially unexpected, conditions and diagnoses including intellectual disabilities and mental health conditions.  The judiciary, via the Equal Treatment Bench Book, still places neurodiversity under the broad umbrella of ‘mental disability’. Put simply, neurodiversity refers to the different ways a person’s brain processes, retains, and uses information compared to most of society.  Vital guidance has finally been issued on how neurodiversity and the Family Justice System interact, or should interact. In January, the Family Justice Council published guidance on neurodiversity within the family justice system for practitioners, hopefully adding to the sea change currently taking place in family law and moving towards a more understanding approach to many who come into contact with the family courts.  Neurodiversity and What It Means  Neurodiversity acknowledges the natural range of differences in how people’s brains work. Historically, these conditions have often been misunderstood or regarded solely as disorders needing a “cure.” However, there is a growing recognition that neurodivergent individuals simply process and respond to the world differently, and that there is no single, correct way for a brain to function. Neurodiversity recognises cognitive differences between how people think, learn and behave.  They often bring particular strengths (such as attention to detail, creativity, principled thinking) as well as challenges (including difficulty with social interaction, concentration, sequencing information, or sensory overload).  Roughly 15% of the population is thought to be neurodivergent, though accurate figures are complicated by underdiagnosis, stigma and the broad umbrella of neurodiversity Many neurodivergent people, particularly those in minority ethnic groups and older adults, may struggle to obtain a formal diagnosis, or where they do, may not wish to disclose it. In particular, autistic women and girls and those from minority ethnic backgrounds are considered to be underdiagnosed due to outdated stereotypes and diagnostic criteria.  In the context of family proceedings, recognising neurodiversity is important not only for ensuring equitable treatment and fair access to justice, but also for promoting better outcomes for children and families. Unmet needs, whether relating to communication, sensory sensitivities, or comprehension, can negatively impact how parties and witnesses engage with proceedings, risking injustice and procedural unfairness.  Neurodiversity parents in particular can face challenges in the way they are assessed by professionals and real care and attention is needed to ensure fair treatment and assessment. In addition, neurodiverse conditions can be co-morbid (or co-occurring) presenting different challenges for the individual as the support they would benefit from may be different to those who only have 1 of those conditions.    In his foreword to the guidance, the President of the Family Division, a Chair of the Family Justice Council, Sir Andrew McFarlane, notes that:  “The universally applicable principle upon which the guidance sits, is that understanding an individual’s needs leads to better participation, and more effective justice. This principle encourages a system that, with relatively light adjustments, can improve participation and outcomes for children and families.  I encourage practitioners working within the Family Justice System to read the guidance carefully and to consider how they can adopt best practice.”  Breakdown of the Guidance  The recent guidance is built upon the principle that understanding an individual’s needs leads to better participation and more effective justice. It highlights several core areas:  Recognising Neurodivergence  Beginning with the beginning, the guidance gives an overview to terminology, and why this is important, outlining terms such as “neurotypical” (the ‘neuro majority’) and “neurodivergent” (the ‘neuro minority’) and underscores that each individual will have a unique profile of strengths and needs. Helpfully, the guidance provides a table of limitations and strengths which may be experienced by those with specific conditions, this includes things like communication difficulties for those with autism and strong verbal skills for those with dyslexia. This table will be particularly helpful for those who are new to the concept of neurodiversity, and will be a useful tool for practitioners.  Of particular note, the guidance gives an overview of ‘masking’; many neurodivergent individuals develop coping strategies to hide their traits and to ‘fit in’, particularly in stressful settings like courts. This can be exhausting and may lead professionals to underestimate or overlook support needs. The guidance describes masking as:  “…when someone uses strategies to make signs of their neurodivergence less obvious to other people. ‘Masking’ can often be a difficult and exhausting process. With or without ‘masking’, neurodivergence is often not obvious from the outside.”  Whilst the guidance is in broad terms, it is important to note that, neurodivergence is specific to each individual, as the guidance notes:  “Each neurodivergent person will have their own unique profile and support needs with a wide range of presentations. Unhelpful stereotypes and inaccurate assumptions may compound problems in identifying neurodivergence, especially people in minority ethnic groups, women, and older people.”  Why It Matters in Family Proceedings  While data on the topic is quite limited, there is strong evidence that neurodivergent people are overrepresented among court users. Underdiagnosis (especially among women and minority ethnic groups) further complicates the picture. The guidance suggests that a failure to account for neurodivergence within family justice will impact children and families, notably in two key ways:  <ol class="wp-block-list"> <li>In assessments, whether undertaken pre-proceedings or during proceedings, or even after in some cases (the clear consequence of failing to consider neurodivergence in assessments, such as parenting assessments, being that the conclusions or analysis may be inherently flawed). </li>  <li>As barriers to effective participation, thereby restricting justice and access to a fair trial (simply put, in the same way we put in participation measures for vulnerable witnesses to ensure they best engage, a failure to account for any measures that may support neurodivergent people naturally results in them not best engaging in proceedings).</li> </ol>  The guidance references Articles 6 (right to a fair trial) and 8 (the right to respect for private and family life) of the European Convention, plus Article 12 of the UN Convention on the Rights of the Child (UNCRC) which concerns respecting the views of the child, recognising each child has the right to express their views, feelings and wishes. These rights underscore the requirement that all parties and children can participate meaningfully, and demonstrates the risk of not considering the impact of any neurodivergence. The guidance states:  “…neurodivergent adults or children may not have the benefit of a full understanding of their functioning. This underlines the importance of practitioners being aware of neurodivergence and how it affects individuals, especially children. That awareness is vital when considering if the parenting of a child meets the ‘good enough’ standard as well as what support families might need in providing a particular child with ‘good enough’ parenting.”  The scope of the guidance is aimed at addressing barriers to participation and ensure fair treatment. D and E (Parent with Autism) [2020] EWFC B18 set out the importance of recognising the needs of neurodivergent participants in the family courts, noting at [148]:  “That no parent must be precluded from being able to parent effectively on account of a disability is a bedrock principle of family law. The extensive specialist expert evidence in this case reaffirms the importance of recognising that parents with autism are as individual as any other parent. There is a risk that professionals may apply a set of criteria or expectations in relation to parents in light of a diagnosis of autism without fully exploring that parent's strengths and weaknesses. It is also important that a parent does not begin to explain or justify any difficulties in their parenting purely because of a diagnosis of autism. It is equally, if not more important, for professionals working with parents with autism to be alert to and take account of the parent's individual needs when working with them, bearing in mind at all times the well-established principle that intervention by a Local Authority in a family may be appropriate but that the aim should be to reunite the family when the circumstances enable that and the effort should be devoted towards that end. The Court's assessment of a parent's ability to discharge their responsibilities towards the child must always take into account the assistance and support which the authorities can offer, tailored to that parent's individual needs. Those needs must be assessed carefully, by skilled professionals, specific to that parent, without applying generalised criteria or expectations.”  Key Research and Themes  The guidance compiles emerging research showing:  <ul class="wp-block-list"> <li>Stigma and stereotypes often lead to misunderstandings of behaviours or communication styles in court.</li>  <li>Communication differences (such as a preference for direct, literal language or a need for extra processing time) can be mistaken for evasiveness.</li>  <li>Anxiety and stress are heightened for neurodivergent people, risking “shut down” or “meltdown” responses if proceedings are not adapted.</li>  <li>Invisible disabilities, including neurodivergence, pose challenges in ensuring recognition and appropriate support, especially if no formal diagnosis exists.</li> </ul>  Whilst there is little research in this area (though much is underway), the guidance is clear that:  “Reframing the narrative around neurodivergent people - from disordered to different and equally valid ways of experiencing the world - is an important element of much of the available research.”  Research into legal professionals’ knowledge of autistic adults in the Family Justice System shows that there is a lack of confidence in working with such adults. Specific training and experience in working with those with autism can increase this confidence and ensure greater access to justice. Whilst it is not established this is the case for other types of neurodivergence, it is difficult to see why this would not be the case.  The themes that are apparent are that neurodiverse people find it more challenging to engage in proceedings. Including processing information, responding to questions, recalling information, participating in the normal course of a hearing and understanding outcomes. Reminding advocates of what was said in R v Lubemba; R v JP [2014] EWCA Crim 2064:  “Advocates must adapt to the witness, not the other way round.”  Best Practice in Identifying and Meeting Needs  The guidance notes that, having a framework for thinking about, understanding, and responding would be useful. A framework, developed for autism but which has useful applications across neurodivergence, called SPELL is offered as a valid approach:  <ul class="wp-block-list"> <li>Structure, reducing anxiety and removing ambiguity</li>  <li>Positive attitudes, clear communication and respectful narratives, playing to the client’s strengths</li>  <li>Empathy, understanding the person’s experiences from their own perspective</li>  <li>Low arousal, ensuring sensitivities to sensory needs and avoiding confrontation</li>  <li>Links, consistency and connection including the person in decisions</li> </ul>  There is a need for early identification, the guidance states:  “In every case, at the earliest stage, thought should be given to whether someone might be neurodivergent. If there is an existing diagnosis, this should be accessed (if the individual concerned agrees to this). If there is an existing diagnosis further information may also be required (which can include expert assessment when necessary) in order to understand that person’s needs, strengths and the barriers which they might face.  If there is no existing diagnosis the first step for a practitioner is undertaking the exercise described below in circumstances where neurodivergence may present.”  The guidance suggests questions which could be asked that, whilst do not form screening or any diagnosis, can be helpful in advocates identifying if there may be any vulnerabilities with respect to neurodivergence.  Overcoming Barriers  It is important to understand the barriers that the person may face, this includes barriers away from court or whilst at court but outside of giving evidence. The FJC advise that a list is prepared which can be kept under review, and also notes that, it is important to  know when external assessment may be required.  Once barriers have been identified, a ‘one size fits all’ approach must be avoided. Even where there is a clear diagnosis, the individual needs should be what is focused on, not the label. Judges at Milton Keynes have introduced participation directions that are individual needs led where, unless a very good reason is identified not to, the adjustment is allowed.  The most commonly required types of adjustments are those to a) communication; b) the environment; and c) the structure and timing of the process. The guidance provides a detailed overview of some example adjustments to each of these area such as:  Communication – written communication over verbal, formulating questions in a way that considers literal interpretation, building in strategies to check understanding, and avoiding abstract language.  Environment – removing distracting objects, adjusting lighting where possible, using fidget or comfort toys, and providing a familiarisation visit.  Structure – giving evidence at a particular time of day, ensuring regular breaks, sticking to any agreed timetable, and ensuring clarity about what will happen and when.  “Many people involved in the Family Justice System will already be aware of some of the more common adjustments when a vulnerable party is giving evidence […] But often more specific and creative adjustments can be invaluable for neurodivergent people. A good example of this is seen in the case of C (Children: Welfare) (No.2) [2020] EWFC B36, where a unique procedure was devised with the help of an intermediary to enable a party to type their answers when giving evidence.”  Analysis and Opinion  The new FJC guidance represents an important step forward. It brings together existing research and best practices in a way that is practical and digestible to court users. Crucially, it foregrounds how relatively simple modifications (shorter sentences, scheduled breaks, sensory-friendly rooms) can transform the experiences of, and importantly outcomes for, neurodivergent people and their families.  However, while the guidance effectively signals that neurodivergent needs must be recognised, and provides a grounded way to do this, its impact is going to hinge on consistent adoption by all court users. Training and awareness, across all levels of the Family Justice System, including judges, clerks, security staff, advocates and intermediaries, remain vital. Courts and practitioners should be prepared to adapt to each individual, rather than expecting the individual to adapt to the existing system unassisted.  As best practice, advocates should consider the existing advocates’ toolkits and adapt them appropriately to suit each witness when providing oral evidence. Where an intermediary or other expert report is available this should be considered at each hearing and alongside the particular toolkits. Advocates must, however, be cautious to not adopt a black and white approach to working with or interacting with neurodiverse court users.  Why It Matters for Participants in the Family Court  Family proceedings are often a source of considerable anxiety and pressure for participants who are not neurodiverse. For those who are neurodiverse, those emotions can be even more heightened. For families and children navigating some of the most sensitive and stressful proceedings of their lives, meeting neurodivergent needs is more than a courtesy; it is a legal and ethical imperative, aimed at achieving the interests of justice and complying with the rule of law.  Inadequate adaptations and adjustments can result in misunderstandings of communication or behaviour, potentially leading to adverse credibility findings and unfair judgments. This can further increase already heightened anxiety and distress, in turn impeding effective participation and possibly resulting in additional trauma for those already in a vulnerable state.  When properly implemented, the adjustments set out in the guidance not only protect rights but also enhance the quality of the evidence and the fairness of outcomes, producing a process that is truly just for all.  Why It Matters More Widely  Neurodiversity is still too often overlooked or misunderstood, and the new guidance aims to encourage a broader cultural shift in attitudes and practices. By raising awareness, it helps to destigmatise neurodivergence and fosters more open conversations about different communication styles and support needs. This heightened understanding paves the way for inclusive approaches in the courtroom, so that both court users and legal professionals benefit from an environment where diverse cognitive profiles are not only recognised but also valued and accommodated.  Crucially, this emphasis on inclusivity can drive meaningful systemic change across the board. When practitioners collaborate on consistent strategies for support, people who come before the courts, particularly those with invisible conditions, are more likely to receive the adaptations they need. Such joined-up thinking leads to fairer, more accurate fact-finding processes and reduces the risk of misinterpretation or undue stress for neurodivergent participants.  Why it Matters for Judges and Lawyers  Judges play a lead role in shaping courtroom culture and overseeing how legal obligations are carried out. By actively engaging with the guidance, they can formalise measures such as ground rules hearings and tailored instructions to counsel that specifically cater to neurodivergent needs. In this way, judicial leadership signals to practitioners that effective adjustments are critical to achieving just outcomes. It also helps avoid common pitfalls, such as misreading stimming behaviour or literal communication styles, which can lead to misunderstandings, appeals, and ultimately a loss of confidence in the justice system.  Barristers and solicitors who thoroughly understand and apply the guidance are better placed to represent their clients empathetically and accurately, ensuring that instructions are taken in ways that are accessible. By identifying potential vulnerabilities early, practitioners can avoid wasted hearings or adjournments caused by unmet needs, thus enhancing both efficiency and fairness. Alongside this improved case management, the profession itself stands to gain from a commitment to inclusivity; many lawyers, court staff, and other professionals are themselves neurodivergent and may find traditional legal settings challenging. Greater awareness and adjustments can create a more supportive workplace culture and encourage greater diversity within the profession’s ranks.  Conclusions  This new guidance offers an essential framework for practitioners who seek to ensure that all court users, especially those who are neurodivergent, are properly understood and fully supported. It emphasises that failure to recognise neurodiversity can have profound consequences, not only for the rights and wellbeing of parents, children, and witnesses but also for the fair administration of justice. By highlighting the experiences and strengths of neurodivergent people, the guidance underscores that reasonable adjustments (such as tailored communication methods, a more sensory-friendly environment, and flexible structures for giving evidence) can be both straightforward to implement and transformative in outcome.  Ultimately, the practical impact of this guidance will depend on how widely and consistently it is adopted. Judges, legal professionals, and all those involved in the family justice process have a collective duty to embed these principles in daily practice. If embraced wholeheartedly, they can open the door to a more inclusive system that serves the needs of every participant. This is vital not only to uphold fundamental legal standards – such as the right to a fair trial – but also to foster confidence in the Family Court as an institution that genuinely responds to the diversity of those it serves. By doing so, we take a significant step toward ensuring that neurodivergent individuals, along with their families, experience a process that is empathetic, equitable, and truly just.  In his foreword to the guidance, the President of the Family Division (and Chair of the Family Justice Council) Sir Andrew McFarlane confirmed that guidance for the Judiciary will follow later this year. Such guidance will be welcomed and of great utility for the judiciary and practitioners alike.  <a href="https://www.parklaneplowden.co.uk/our-barristers/avaia-williams-pupil/" target="_blank" rel="noreferrer noopener">Avaia</a> is a first six pupil under the supervision of Sara Anning and Rebecca Musgrove and will be taking instructions on all aspects of children law from April 2025. He has a particular interest in transparency, access to justice and ensuring broad participation within the family courts.  <a href="https://www.parklaneplowden.co.uk/our-barristers/chloe-branton/" target="_blank" rel="noreferrer noopener">Chloe</a> is a tenant at Parklane Plowden, having completed her pupillage in 2020. Chloe practices largely in public and private children law representing parents, children, Local Authorities and intervenors. As an autistic barrister, Chloe has developed a particular interest in cases involving 1 or more of the parties being neurodivergent. Chloe has written articles for publications including the Family Law Journal and is co-chair of the North Eastern Circuit Neurodiversity Network.

Ashes, Funerals, and Family Conflict

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

Consensual Adoption – PLWG Best Practice: A Guide

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

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

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

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

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

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

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

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

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

Employment Law Update: Unreasonable Failure and Fire and Rehire Penalties

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

Interim relief: how employers can reclaim the narrative

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

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13 March 2025

Consent, control, and ‘the silencing of the child’s voice in medical interventions’ – Re G [2025] Fam Law 254

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13 March 2025

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