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How to Place Children Abroad After Re M

The Court of Appeal’s decision in Re M (A Child) (Placement Order) [2025] EWCA Civ 214 is a cautionary tale about how even well-intentioned attempts to secure a family placement abroad can unravel when delay and uncertainty dominate proceedings. The judgment, and those which have followed citing Re M, expose recurring procedural and strategic pitfalls in how practitioners, local authorities, and guardians approach international family placements and show that Re M is a clear precedent capable of being relied upon to stop late or fanciful plans for international placements.  For those acting in public law cases, Re M is not a rejection of international kinship care, rather it is a simple warning that such placements can only succeed when planned, evidenced, and actioned early. Put simply, delay will be the enemy of such placements.  Background  In Re M, a child born during ongoing care proceedings was just 18 months old by the time his own case reached final hearing. A CFAB assessment of the aunt and uncle in Pakistan was broadly positive, but uncertainties remained. The Local Authority, having initially supported the placement, withdrew that support before the final hearing, citing timescales and unresolved issues about feasibility.  By that stage, the proceedings had already run for a year and a half. The court declined to adjourn for further assessment, holding that a six-to-twelve-month delay would be wholly incompatible with the child’s welfare timetable. The Court of Appeal upheld that decision, with King LJ emphasising that professionals had allowed optimism to override realism the case should have been recognised as unviable much earlier, the Court noting at [66] that:  “What made it difficult was that the hopes of the family, and particularly the aunt and uncle, had been raised and then maintained long after a decision should have been reached that, for many reasons in addition to delay, the aspiration to place M with his extended family in Pakistan was not achievable within his timescales and that M’s best interests could only be served by the making of a placement order with a view to his being adopted in the UK.”  Post-Re M, the courts have made clear that delay, not the geography, is a decisive issue in international placements. The judgment draws upon Re S (A Child) [2015] 1 WLR 925 and Re S-L (Children) [2019] EWCA Civ 1571, reaffirming that extensions beyond 26 weeks are permissible only where necessary for justice, and even weeks, let alone months, are significant for a baby or young child.  The cases which have followed Re M emphasise this point:  <ul class="wp-block-list"> <li>In London Borough of Barnet v DI [2025] EWFC 168, Mr Justice MacDonald criticised the Guardian’s late support for an international placement, citing a lack of timetable, lack of contingency, and lack of understanding about how the move would look. The court cited Re M as follows: “All this demonstrates, as the Court of Appeal recently observed in M (A Child) (Placement Order) [2025] EWCA Civ 214 that there are very considerable disadvantages to commencing an uncertain and potentially protracted assessment process in proceedings that have already been in train for over a year.”</li> </ul>  <ul class="wp-block-list"> <li>In Leeds CC v The Mother and Another [2025] EWFC 202, a case which was almost three years old at the time of conclusion, addressed the issues of delay and, again citing Re M, the Court held that: “A similar example is found in Re M (A Child) (Placement Order) [2025] EWCA Civ, in which the Court of Appeal upheld the decision of the court at first instance effectively to abandon efforts to assess family members of the subject child in Pakistan in circumstances in which many months had already been spent trying to achieve a robust assessment but that, on any realistic view, real obstacles and a significant further delay remained.”</li> </ul>  <ul class="wp-block-list"> <li>And, in Re W (A Child) (Finalisation at IRH) [2025] EWFC 266 (B), the court confirmed that, while fairness demands the opportunity to explore family options, it does not demand indefinite patience in the face of uncertainty.</li> </ul>  These judgments illustrate that delay has become a fault line upon which international placement cases will succeed or fail.  ‘Right’ to a Family Placement  A recurring issue in these cases is the mischaracterisation of family placement as a right. In Re W (A Child) (Adoption: Grandparents’ Competing Claim) [2016] EWCA Civ 793, the Court of Appeal firmly rejected the notion that a child holds a right, or that there exists a presumption, to be raised by their birth family. The only “right” is for decisions about their upbringing to be made with their welfare as the paramount consideration, in a manner that is proportionate and compatible with their rights.  This does not, however, negate the strong welfare principle that children’s best interests do often include being raised within their natural family (a principle which must logically exist given the emphasis on family and connected carer viabilities and assessments). The difficulty is one of balance, a viable family placement must be realistic and timely. There must be caution against sentimental reliance on biological connection at the expense of a child’s welfare timescales, a tension which Re M grappled with.  Re M and its aftermath demonstrate that the question of international placements is one of whether they are workable within the child’s timescales. The following may prove useful things to consider with these types of cases.  Re M and its aftermath demonstrate that the central question is not whether international placements are desirable, but whether they are workable within the child’s timescales.  Practical Takeaways  1 – Identify International Carers Early  Parents must be advised from the outset to disclose all potential family carers, even if located abroad. Late identification is now the single most common cause of failure in international placement cases.  2 – Treat Viability as a Process  The existence of a willing relative abroad is not enough. Practitioners should ensure that viability assessments, CFAB referrals, and liaison with Central Authorities begin immediately once a carer is identified and not at a point where the prospects of reunification are faltering away.  Where a CFAB assessment raises uncertainties, those issues must be addressed quickly.  3 – Manage Timescales Transparently  Courts are less concerned with whether an international placement will exceed 26 weeks generally, more so the concern comes around the timeliness of raising the placement and the information around this.  At week two, an honest projection of a 50-week process may still be consistent with the child’s welfare. At week 34, speculation about a possible overseas carer is unlikely to be.  4 – Obtain Specialist Advice Early  International placements can engage several legal frameworks, including the 1993 or 1996 Hague Conventions (depending on the type of placement), domestic adoption law, and immigration law. Local Authorities who are embarking on international placements and exploring the same must obtain swift advice on such placements, including advice from the proposed placement country. Once received, such advice must be implemented without any delay.  5 – Plan for Contingency  Courts are increasingly critical where international options are advanced without a fallback plan, thankfully, however, courts are very used to double or triple tracking cases. Such contingency proposals must be part of the process of an international placement, this is not to suggest the placement will fail, but to show what the plan is should it.  6 – Know When to Stop  “Enough is enough” moments must be recognised. Where assessments remain uncertain or logistically implausible after months of delay, the child’s welfare timescales will take priority and there has to come a point where the nettle is grasped, and the plan abandoned. In short, Local Authorities cannot get sucked in with a gamblers fallacy to just keep going.  Conclusion  It bears repeating that Re M does not prohibit international placements, and it should not be allowed to be used as an authority by Local Authorities to dismiss early and realistic proposals for such placements. Rather, it highlights proportionality and discipline to how they are pursued. The law continues to recognise the value of children growing up within their family, culture, and community, notwithstanding the courts reigniting the principle that there is no right to a family placement, but that aspiration cannot come at the expense of permanence or stability.  When properly managed from day one, cross-border placements remain both possible and desirable. The challenge for practitioners is ensuring that the planning and progress of these placements meets the nebulous concept of the child’s timescales.  Avaia is a specialist children and Court of Protection barrister at Parklane Plowden Chambers.

Howard Elgot and Abigail Telford succeed in E.Coli 157 and Critical Illness Brain Damage Claims

DXC v South Tees Hospitals NHS Trust and Newcastle-Upon-Tyne Hospitals NHS Foundation Trust - 24th October 2025  On 24th October 2025 the High Court in London approved a settlement at 90% of the full value of her claims in favour of a child who had contracted E. Coli 157 in 2011 during an outbreak at the Playdays Nursery, Middlesbrough, owned and operated by the South Tees Hospitals NHS Trust. The claim had been listed for a 12 day High Court Trial with 12 Expert Witnesses and 15 Lay Witnesses. Five children and a nursery nurse became infected. As a result of her infection the Claimant suffered permanent severe brain and renal damage and she has had to undergo a kidney transplant. The claim is likely to be worth several million pounds.  <a href="https://www.parklaneplowden.co.uk/our-barristers/howard-elgot/" target="_blank" rel="noreferrer noopener">Howard Elgot</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/abigail-telford/" target="_blank" rel="noreferrer noopener">Abigail Telford</a> instructed by <a href="https://www.hay-kilner.co.uk/our-people/david-bradshaw/">David Bradshaw</a> of <a href="https://www.hay-kilner.co.uk/">Hay and Kilner</a>, appeared for the successful Claimant.  The name of the Claimant has been anonymised by an order of the High Court to DXC.  Infectious disease claims create novel problems of causation. Few similar cases have succeeded. The only case relatively similar to the instant case, i.e. a case dependent upon showing an avoidable transmission of infectious disease in a workplace or communal setting that has reached the higher courts, is Sanderson v Hull [2009] EWCA Civ 1211, a case involving the campylobacter bacterium infection of a woman working as a turkey plucker. The infection was contracted from an infected turkey. Somewhat surprisingly on the facts of that case, the claimant lost. It is obvious that child to child transmission of E. Coli in a nursery cannot be prevented if the nursery nurses are unaware that one of the children was or might be infected with a diarrhoeal illness. The somewhat simplified summary below demonstrates the difficulties the Claimant faced when bringing her claim.  In the week of the E. Coli outbreak DXC attended the nursery on 3rd and 4th August. On the facts of her case the Claimant had to show that that on a balance of probabilities another child (or nursery nurse) introduced the bacteria into the nursery on a date before 3rd August 2011, that child (or nursery nurse) did not attend the nursery at the same time as DXC, that there was environmental transmission to DXC at the nursery, rather than person to person transmission, and that environmental transmission to DXC would have probably have been prevented had reasonable precautions been taken at the nursery. There was a second part to the Claimant’s claim. DXC was eventually admitted to the Royal Victoria Hospital, Newcastle, but unfortunately her bowel perforated on 26th August. There was an admitted delay in diagnosis, and the surgery that the Claimant urgently required was not caried out until 22.30 on Monday 28th August 2011. On the Claimant’s case there was a delay of 47.5 hours; on the Defendant’s case there was a delay of 33.5 hours. Up to the meeting of the paediatric neurologists the Newcastle Trust denied that either period of delay made any difference to the Claimant’s brain or renal injuries, but the experts agreed that the severe systemic illness with sepsis (also termed critical illness) suffered by the Claimant after her bowel had perforated made a material contribution to the extent of the brain damage suffered by the Claimant, and that even the shorter delay admitted by the Defendant was sufficient to make a further material contribution. Thus in relation to the brain injury suffered by the Claimant, but not in relation to her renal injuries, she was able to rely upon the principle in Williams v Bermuda Hospitals Board 2016 AC 888 that where on the balance of probabilities an injury had been caused by two or more factors operating cumulatively, one or more of which was in breach of duty, the Claimant will succeed in full unless the injury can be categorised as a divisible injury.

When is an inquest an “article 2” inquest?

This article summarises the decision in <a href="https://www.bailii.org/ew/cases/EWHC/Admin/2025/1901.html">R (Ferguson) v HM Assistant Coroner for Sefton, Knowlsey and St Helens [2025] EWHC 1901 (Admin)</a>. Mr Ferguson’s brother, Joseph Farley, died after jumping from the fourteenth floor of a car park, shortly after speaking with police who attended via emergency response to check on him following concerns from a member of the public. Mr Ferguson challenged the Coroner’s decisions that (i) the enhanced investigative duty under Article 2 of the European Convention on Human Rights was not engaged; and (ii) the inquest would be heard without a jury because section 7(2)(b) of the Coroners and Justice Act 2009 ("the CJA") did not apply. This article will not recite the entire facts of the case but will provide a short summary on some of the key points from Mrs Justice Hill’s decision.  Article 2 – the duties  The duties imposed on the state by Article 2 include both a positive duty to protect life and a separate investigative duty to inquire into and explain the circumstances of a death. The former positive duty contains two aspects; the positive operational duty and the framework duty (often referred to as the systems duty). Within the investigative duty, the enhanced investigative duty (in other words when there should be an Article 2 inquest) applies when there is a sufficiently arguable breach by the state of one of its substantive obligations (the positive duty). The inquest should answer the question “in what circumstances the deceased came by his or her death” in order to comply with the duty.  What needs to be “arguable”?  The first issue in Ferguson was about whether there is a positive operational duty and what the threshold is for answering that question. It was agreed between parties that the threshold for whether there is any breach of the duty was a low arguability threshold. The Chief Constable’s position was that there is a high threshold to establishing the existence of the positive duty (before the low threshold of arguable breach of said duty is considered). Mrs Justice Hill held that the Claimant was right to contend that it was a low threshold. At §128: “I observe that the rationale for the low arguability threshold described in Morahan at [75] and [102], namely the concern to avoid the risk of a Coroner determining what the outcome of any inquest might be without the full evidential picture, applies with equal force to the duty issue and the breach issue, when either is considered before the evidence has been heard. This explains why the threshold is the same for both the duty issue and the breach issue.”. The question is therefore whether an arguable duty has been arguably breached.  Mrs Justice Hill found in the affirmative on both questions in the material case: there was an arguable duty, and it had been arguably breached. The discussion of the issues within the judgment is a clear analysis of the features relevant to the decision (both for- and against-) and is worthwhile reading for those who are considering these issues in their own cases.  A notable part of the discussion is the question about whether the State had arguably assumed responsibility for Mr Farley when the police attended upon him. Mrs Justice Hill considered there was force in the Claimant’s argument that reference to common law cases is appropriate when considering assumption of responsibility [§175 onwards]. Hill J considered precedent in tort law including circumstances where emergency services can assume responsibility for a person’s care where they give an assurance on which that person relies. The Judge also confirmed that consideration must be given to what the officers should have done, in addition to what they did do. Overall, it was arguable that the State had assumed responsibility for Mr Farley and there was an arguable breach of duty. In relation to the latter, Mr Farley’s vulnerability was a relevant factor and death by suicide is “by definition, an "exceptional" rather than "ordinary" risk”.  When is a jury mandatory?  An inquest must be held with a jury for a number of reasons, but particularly relevant to this case is if the Coroner has reason to suspect that the death resulted from an act or omission of a police officer. The Coroner declined to empanel a mandatory jury because he said, “The phrase: "act or omission" should be interpreted as there being a requirement for some form of inappropriate act.”. Mrs Justice Hill was not aware of any authority “supporting the placing of such a gloss on the statutory wording”.  Hill J also considered the phrase “reason to suspect” and confirmed this also has a low threshold. Her earlier conclusions on the substantive Article 2 grounds led to the conclusion that “the totality of the evidence met the low, objective threshold of "reason to suspect" Mr Farley's death resulted from the acts and omissions of the officers who attended the scene”. The only “rational conclusion” on the facts was that the reason to suspect test was met. A jury ought to be empanelled.  Comment  We all turn to articles and commentary hoping for an ‘easy read’ or the key points to be distilled in a simple fashion. However, I regret to inform my readers that my comment to you all is that there is no substitute for reading the judgment of Mrs Justice Hill. It is a comprehensive and well written judgment which I cannot emulate in a short article. All I can hope to do is bring the case to your attention and remind you that when considering if an inquest is an “Article 2” inquest, a review of this judgment is worthwhile. The judgment explains the different Article 2 duties using a composite of the relevant authorities; and further, it demonstrates the type of analysis that Coroner’s ought to be carrying out when considering whether the enhanced investigative duties applies.  It's also worth noting that Mrs Justice Hill “respectfully question[ed] the wisdom of the Coroner” (!) in determining the Article 2 and jury issue on the basis of written submissions alone, without oral submissions. Practitioners should be aware of §101 and the strong guidance that these issues should be dealt with at an oral hearing with prior notice in an agenda.  In short, the question is whether there is an arguable duty that has been arguably breached. The factors for or against will be fact specific but analogy can be drawn from previous case law, including common law negligence cases.  Megan Crowther is part of the Inquests Team at Parklane Plowden. Megan's profile can be accessed <a href="https://www.parklaneplowden.co.uk/our-barristers/megan-crowther/">here</a>.

Neurodiversity and the Family Courts – new guidance seeks to bridge the gap. Will it work? A view from the bar – [2025] Fam Law 1021

Chambers is again excited to share that barrister, Chloe Branton, and pupil Avaia Williams have recently been published in Family Law Journal, sharing their analysis and thoughts on the Family Justice Council neurodiversity guidance.  In their article, Chloe and Avaia reflect on the guidance and how it will play out in the Family Justice System, and how it is already playing out. Chloe and Avaia are regularly instructed in matters acting for neurodiverse parties and share their top tips for ensuring the guidance is more than just a soundbite, including exploring:  <ul class="wp-block-list"> <li>why recognising neurodiverse needs is essential to fair access to justice;</li>  <li>the risks of flawed assessments where neurodivergence is overlooked;</li>  <li>the practical recommendations offered by the guidance, including the use of frameworks such as SPELL; and</li>  <li>the need for consistent adoption across the system, from judges to practitioners to court staff.</li> </ul>  Drawing on both professional and personal experience of working with neurodiverse clients and witnesses, they highlight how relatively simple adjustments can make a profound difference to participation and outcomes.  Understanding neurodivergence is not an optional courtesy but a fundamental requirement of fairness in family proceedings. The promises of the new guidance depend on meaningful and systemic change, and consistent implementation.  The full article is available in the August issue of Family Law, for those with subscriptions this can be found on Lexis Nexis.

Trial Success for Howard Elgot and Megan Crowther: HQA v Newcastle-upon-Tyne Hospitals NHS Foundation Trust

<a href="https://www.parklaneplowden.co.uk/our-barristers/howard-elgot/">Howard Elgot</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/megan-crowther/">Megan Crowther</a> of Parklane Plowden Chambers, instructed by David Bradshaw of <a href="https://www.hay-kilner.co.uk/">Hay & Kilner LLP</a>, acted for the Claimant in her claim against the Newcastle-Upon-Tyne Hospitals NHS Foundation Trust, in a 5-day High Court trial at the Royal Courts of Justice, in June. The trial was to determine breach of duty and causation. Liability had been strongly contested by the Trust; but the Claimant succeeded on issues of (1) informed consent; (2) breach of duty by the surgeon in the planning of the operation; and also (3) in establishing that 13 minutes of cerebral hypoxia would have been avoided had the operation been planned appropriately. The matter will proceed to an assessment of damages hearing in due course.  The claim was brought after the Claimant, who can be referred to only as HQA because of an anonymity order made by the High Court, suffered severe brain damage after undergoing open heart surgery at the Freeman Hospital, Newcastle. The Claimant had suffered congenital heart problems from birth and had undergone many operations and other procedures over her lifetime. In order to gain access to her heart, the surgeon used an oscillating saw. The saw slipped, and instead of the saw cutting through only the anterior section of the Claimant’s sternum, the saw went fully through the sternum and into her aorta, causing catastrophic bleeding  which led to the cutting off of the blood supply to her brain. It then took so long for the surgeons to put the Claimant on cardio-pulmonary bypass that she suffered very severe hypoxic brain damage. The time was prolonged in part because another surgeon, who had been called in because of the emergency, attempted to cannulate one femoral artery, but the artery dissected, and another femoral artery had to be prepared and cannulated. Following the operation, HQA’s family were told to expect the worst, but the Claimant has at least made a partial recovery.  The Court held that the Defendant failed to obtain the Claimant’s informed consent for her surgery and further, that the surgeons failed to plan adequately for the possibility of the catastrophic event that occurred.  The Court accepted the general thrust of the Claimant’s expert’s evidence that the Claimant’s aorta was sufficiently close to the rear of her sternum, at least in places, to mean that no surgeon could be confident, in a re-do sternotomy, of being able to open the sternum without causing injury to the enlarged aorta. As a result, the minimum level of precaution required was to expose and prepare the relevant groin vessels as a preparatory step, in case emergency bypass was required. The Defendant failed to take this step. The Court held that more than half of the time taken to establish cardiopulmonary bypass would have been saved, but for the negligence. As a result, the Claimant sustained a prolonged period of hypoxia.  Furthermore, the Court found that the above mitigating steps should have been discussed with the Claimant during the consenting process: “It is not for the surgeon to determine, for the Claimant, what the Claimant’s risk appetite should be”. It was also held that in this case, it was “unacceptable practice” for the surgeon to see the patient for the first time on the day of the intended surgery in order to explain the risks of the operation for the purposes of seeking to obtain informed consent. The Court agreed with the Claimant’s expert’s view that the consenting process was “chaotic”.  The claim is estimated to have a value of over £5,000,000.

Jury finds shortcomings, flaws and missed opportunities in care of detained patient: Leila Benyounes acts in Article 2 Inquest

Leila Benyounes represented the Family of Donna Levin in an Article 2 inquest at Teesside Coroner’s Court presided over by the Senior Coroner for Teesside and Hartlepool, Ms Clare Bailey, sitting with a jury.  Donna, who was a much loved 54-year-old mother of three and special educational needs teacher, was admitted to Roseberry Park Hospital on 28 December 2019 following increased concerns for her safety by her Family. She had been struggling with her mental health for a few months and had been diagnosed with obsessive compulsive disorder. Donna died on 8 January after being found unresponsive in her room at the hospital on 4 January 2020 whilst she was detained under the Mental Health Act.  Following a seven-day inquest during which fourteen live witnesses gave evidence, the jury found that there were shortcomings, flaws and missed opportunities in the care provided to Donna.  The jury found that key risk information was not included in a verbal handover from day staff to night staff or recorded in the electronic medical records, some of which were amended after events. These shortcomings meant that Donna’s risk levels were not amended in a risk assessment, and there was no change to the minimum hourly level of observations and engagements, which should have been increased.  After Donna asked to leave the ward to kill herself, and Donna was detained under the Mental Health Act, the jury found that there was no further assessment to take into account Donna’s further deterioration. Planned hourly checks were not undertaken, the observation sheet was falsely completed, and there were several missed opportunities in the doctor seeing Donna. Significantly, the jury found that the risk management plan and risk safety were not updated appropriately.  In concluding that Donna died by suicide due to suffering from a mental illness, the jury found that the risks of encouraging sleep to support long term treatment did not outweigh the risk of ensuring short term safety and the risks should have been further considered until the doctor saw Donna.  Links to local news articles:  <a href="https://www.thenorthernecho.co.uk/news/25351119.family-stockton-teacher-donna-levin-release-statement-inquest/">Family of Stockton teacher Donna Levin release statement after inquest</a>  <a href="https://www.gazettelive.co.uk/news/teesside-news/donna-levin-roseberry-park-death-32162956">Family’s ‘painful clarity after clear shortcomings’ in bubbly mum’s care at Roseberry Park Hospital</a>  <a href="https://www.gazettelive.co.uk/news/teesside-news/donna-levin-inquest-roseberry-park-32151354">Jury retire in inquest into ‘full of joy’ teacher allegedly failed by Roseberry Park Hospital</a>  <a href="https://www.thenorthernecho.co.uk/news/25339276.staff-missed-check-patient-roseberry-park-hospital/">Staff missed check on mum at Roseberry Park Hospital before tragedy</a>  Ms Benyounes was instructed by Lois Hepworth of Watson Woodhouse Solicitors.  Leila Benyounes is Head of the Inquests Team at Parklane Plowden Chambers and is ranked by Legal 500 and Chambers and Partners for Inquests and Inquiries and Clinical Negligence. Leila is appointed as an Assistant Coroner in two coronial areas and Leila regularly represents interested persons in a wide range of inquests including Article 2 jury inquests and complex medical matters. She has a special interest in obstetric, birth injury and fatal cases providing representation at inquest and in clinical negligence claims. She has been appointed to the Attorney General Regional Civil Panel Band A since 2010. Her full profile can be accessed <a href="https://www.parklaneplowden.co.uk/barristers/leila-benyounes">here</a>.

Fiat accompli? R (Campbell) v HM Attorney General for England and Wales [2025] EWHC 1653 (Admin)

There are two ways of reading the judgment in <a href="https://www.judiciary.uk/wp-content/uploads/2025/07/Campbell-v-Attorney-General.pdf">R (Campbell) v HM Attorney General for England and Wales [2025] EWHC 1653 (Admin)</a>.  For those who are fans of legal theory, there is a meticulous examination of the role and functions of the Attorney General. The Divisional Court considered his functions (for it is currently a “he”) relating to criminal law (such as consenting to certain prosecutions, dealing with contempt of court, and appeals against unduly lenient sentences) and civil law (for example, in relation to vexatious litigants and special advocates). It conducted a detailed examination of the limitations on the justiciability of his decisions. It concluded with a carefully reasoned decision, ultimately refusing permission to apply for judicial review.  For everyone else, there’s paragraph 56.  The question  Mr Campbell’s brother, Geoffrey, was killed when the North Tower of the World Trade Centre collapsed on 11th September 2001. HM Senior Coroner for West London held an inquest in January 2013, in which she recorded that an aircraft was flown into the building as part of Al-Qaeda’s co-ordinated attack, thereby causing its collapse.  Mr Campbell does not accept that the building collapsed due to the impact of the aircraft. He believes it was caused by the detonation of pre-planted explosives or incendiaries.  Section 13(1)(b) of the Coroners Act 1988 permits the High court to quash an inquisition and direct a fresh investigation (or a first investigation, where none has been held). Before doing so, the High Court must be satisfied either that the coroner has refused or neglected to hold an inquest or an investigation which ought to be held, or that it is necessary or desirable in the interests of justice to hold another investigation where the first was tainted by fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise. The application to the High Court must be made by or under the authority or "fiat" of the Attorney General.  Mr Campbell accordingly applied to the Attorney General for authority to apply to the High Court. It was refused.  Mr Campbell sought judicial review of that refusal. It was said that the Attorney General (in fact, the Solicitor General who made the decision on his behalf) had erred in law, made a decision which was irrational and unreasonable, and had failed to give adequate reasons. The Summary Grounds of Defence asserted that the challenged decision was not justiciable at all (or alternatively was challengeable only on exceptional grounds, such as fraud, corruption or bad faith).  The answer  The short answer is that the Attorney General’s decision was not justiciable. Permission to apply for judicial review was refused.  The slightly longer answer involves consideration of authorities stretching back to 1855. The courts developed the clear position that decisions taken by the Attorney General in the exercise of his “public interest” functions were not justiciable in proceedings seeking the prerogative writ of mandamus (the forerunner to modern judicial review). If the Attorney General was answerable to anyone, it was to Parliament.  A key case was Gouriet v Union of Post Office Workers[1978] AC 435. Broad observations were made in that case by the House of Lords as to the courts’ lack of jurisdiction to review the Attorney General’s decisions. Gouriet concerned the Attorney General’s refusal of consent to bring relator proceedings (actions brought by private individuals in the Attorney General’s name, in order to enforce a public right), but the principle is not confined to such proceedings. In R v Attorney General ex p. Ferrante (unreported, 1st July 1994) it was said that Gouriet is of general application, and that whether or not a decision is amendable to judicial review depends on its nature and subject matter.  The Divisional Court concluded that the authorities demonstrated that there is a class of discretionary functions of the Attorney General “whose exercise [are] categorically immune from review”. That class includes the Attorney General’s powers to enforce the law by bringing criminal or civil proceedings in the public interest, and powers to authorise or terminate such proceedings by others. The function in section 13(1)(b) of the 1988 Act is one such power.  Accordingly, the refusal of consent was not justiciable, and it was not open to Mr Campbell to seek judicial review of it.  In the alternative, the Divisional Court said that if the decision had been justiciable, then the only grounds for review would have been dishonesty, bad faith or an exceptional circumstance (none of which applied in this case).  The future?  This is not a decision which appears to have been reached with any degree of enthusiasm.  The Divisional Court noted that the identification of a category of decisions as immune from review on any grounds appears “anomalous”. The fact that the Attorney General is accountable to Parliament, said the Court, “hardly distinguishes those decisions from many others which today would certainly be justiciable” (paragraph 47). In paragraph 54, the Court noted that it must be for a higher court to say if the principle in Gouriet is no longer good law in relation to the Attorney General’s powers. The combined effect of existing authority “is that it is not now open to any court below the Supreme Court to decide otherwise, however anomalous this may seem in the light of the rest of the modern law of judicial review”.  One to watch.  Peter Yates is part of the Inquests Team at Parklane Plowden. Peter's profile can be accessed <a href="https://www.parklaneplowden.co.uk/our-barristers/peter-yates/">here</a>.

Court Affirms Gender Reassignment Surgery as a Joint Financial Responsibility – JY V KF {2025} EWFC 195

In a first instance decision by HHJ Farquhar sitting in the Brighton Family Court, the court considered as a specific issue whether the costs of the respondent’s gender reassignment surgery should be met from the matrimonial pot.  The parties were ‘high net worth’ individuals, with assets totalling over £3,000.000. Their legal costs totalled over £1,000.000.  When the parties met in 1998, the respondent was a biological male. The applicant stated that in 2022 the respondent had informed her, that she was intending to ‘transition’ to a woman. The respondent stated that the applicant was aware she was a trans-person before they married in 2002.  The Court described the issue as ‘having generated significant emotion from both of the parties,’ the applicant’s position was that the marriage had broken down as a result of the respondent’s decision to transition to a woman and undergo the surgery, and it could not be right therefore that she should have to pay half the costs of the surgery from the matrimonial funds. It was argued that if the respondent wanted the surgery, that was her choice, but it must be paid for out of her own funds.  The respondent argued that the costs of the gender reassignment surgery should be treated like any other medical cost which would ordinarily be met from the joint assets, that it would be like saying someone who had cancer should not have the surgery and accordingly the cost should be met from joint funds. The court noted that the precise costs of the surgery had not been produced, only an estimate in the region of £160,000.00, but it was satisfied this was a reasonable figure.  In considering the criteria under section 25 (2) (b) of the MCA 1973, the court found that it was difficult to see how the costs of the gender realignment surgery cannot come under the heading of ‘needs.’ It was not suggested that the costs should be considered as conduct, nor could it be. It could not come under the heading of ‘wanton or reckless’ expenditure that could warrant an add back consideration. This was clearly not akin to cosmetic surgery and could not be considered in such a light.  The court referred to the consideration of what amounts to ‘needs’ within the Family Justice Council’s ‘Guidance on Financial Needs on Divorce’ document, which was referred to by Peel J in WC v HC {2022} WFC 22 and reiterated that ‘needs is a very broad concept with no single definition in family law.’  HHJ Farquhar was satisfied that the respondent’s need was not matched by a similar need for the applicant and as such it was reasonable for the money spent meeting that need to come out of joint resources.  It remains to be seen whether this decision will be appealed. This was a case with significant assets, and it might be questioned whether the same approach would have been taken in a case with more limited resources.

Case Report: R (On the application of Jada Bailey) v HM Senior Coroner for East London [2025] EWHC 1637 (Admin)

Jaden was an individual who had been killed on 8 January 2019. An inquest to his death was formally opened on 18 January 2019. The inquest process was then overtaken by the criminal proceedings which took place, and the inquest was adjourned on 2 April 2019. Ayoub Majdouline was convicted of Jaden’s murder and sentenced to life imprisonment with a minimum term of 21 years on 18 December 2019.  On 24 December 2019, the Coroner issued a certificate that the inquest was not to be resumed. The Claimant applied to the Coroner to resume the inquest in June 2023 and a decision not to resume the inquest was issued in a document dated 18 March 2024. Jaden’s mother, Jada Bailey (the “Claimant”), sought to judicially review that decision on three points:  <ul class="wp-block-list"> <li>The decision not to resume the inquest gives rise to a breach of the procedural obligation under ECHR Article 2;</li>  <li>The Coroner’s conclusion not to resume the inquest rested on two errors of law as to the likely utility of the resumed inquest; and</li>  <li>The decision was contrary to a duty to investigate arising at common law (this was abandoned in submissions as there is no separate common law source of either power or obligation for a Coroner to investigate – they are statutory under the Criminal Justice Act 2009). This was then adapted that the Coroner had failed to have regard to relevant considerations, namely: <ul class="wp-block-list"> <li>the public interest in holding an inquest;</li>  <li>the purpose pursued by sections 5(1) and (2) of the 2009 Act;</li>  <li>that an inquest can serve to allay any public concern arising from a death; and</li>  <li>the possibility of making a regulation 28 report.</li> </ul> </li> </ul>  The decision not to resume the inquest gives rise to a breach of the procedural obligation under ECHR Article 2  The Coroner had accepted the Claimant’s basic premise that there was an obligation to investigate under ECHR Article 2. In the usual course of inquests, the holding of an inquest discharges the investigative duty as required under the provisions of the 2009 Act. The Coroner in this case had considered that the investigative duty had been discharged already by the time the Claimant had sought to resume the inquest, as a Serious Case Review had been commissioned by the Safeguarding Children’s Board for Waltham Forest, published in May 2020.  The Claimant’s submitted that there were concerns regarding the scope and content of the SCR report; there were criticisms regarding the form of the investigation; the author of the SCR report lacked independence; the Claimant did not have sufficient opportunity to be involved in the SCR exercise; and it did not meet the requirement for public scrutiny. Further, following the SCR report, complaints raised about the conduct of the Metropolitan Police had not been properly addressed in an investigation by the Independent Office for Police Conduct.  As to the SCR report, Swift J commented:  It is readily apparent from the SCR report that it is a thorough and thoughtful consideration of all relevant matters. To my mind the SCR report is a highly impressive piece of work that should provide valuable assistance to all public authorities concerned. By identifying very clearly things they did and things they failed to do the SCR report ought both to promote accountability for what happened and to provide valuable guidance to those public authorities as regard their future conduct. Whenever considering a document such as this SCR report it will always be possible to point to further questions that could have been considered or further detail that could have been looked for. But that is not the test of whether the investigation that has been undertaken meets the requirement arising under article 2. In the circumstances of this case the investigation needed to consider the actions of the public authorities in Nottinghamshire and in London that had responsibilities that, if performed, would have served to safeguard C against the risk of falling victim to criminal exploitation. The SCR report, as written, evidences an effective investigation of the actions and omissions of those public authorities.  …  The purpose of an article 2 investigation is to consider what did happen; to establish a picture of past events. Often it will be readily apparent from findings on what did happen, what other steps should have been taken. That is so in the present case since it is clear from the SCR report that certain steps that were not taken should have been taken. But that is a by-product of the investigation.  Swift J considered that there was no principle reason why the SCR report, and the way in which the investigation had been conducted, was incapable of satisfying the article 2 duty to investigate. Swift J found that the author of the SCR report was independent and there was no suggestion that the investigation was not independent either. There was no requirement for an inquest to compel witnesses to give evidence or for certain documents to be provided, and so the argument that the SCR process did not do this had to fall away.  As to the lack of public scrutiny, Swift J held:  The requirement arising from article 2 for sufficient public scrutiny of either the investigation or its results or both, exists to ensure accountability, to promote public confidence in adherence to the substantive obligations arising under article 2, and to prevent any appearance of collusion or tolerance of unlawful acts. What is appropriate to meet these objectives is not fixed. There is no requirement that an investigation must be conducted through public hearings. I do not consider that the investigation that Mr Drew undertook was impaired by the absence of such hearings. Considered in the round, the SCR report identifies and then scrutinises the acts and omissions of the relevant public authorities.  Moreover, as to the lack of the Claimant’s involvement:  Given the factual circumstances… “I do not consider any of this shows that the Claimant was insufficiently involved in the investigation or lacked an effective opportunity to participate in and comment on the formulation of the SCR report. Rather, opportunities to participate were available from the outset of the investigation in early 2019 and, given the assistance available to the Claimant from the experienced and able solicitors who advised her, the opportunities to participate were real and substantial.”  The Coroner’s conclusion not to resume the inquest rested on two errors of law as to the likely utility of the resumed inquest  The Claimant submitted that the Coroner had failed to consider a narrative conclusion in their decision and their comments in relation to regulation 28 reports indicated a misdirection on the law.  As to the first point, Swift J remarked:  The suggested distinction between "short-form" and "narrative" conclusions that is the premise of this submission is a distinction without a difference. There is no material difference between a conclusion expressed using any of the terms listed in Note (i) and one that is in the "brief narrative" form anticipated by Note (ii). Each is intended to be descriptive: to describe the outcome of the inquest. For example, a conclusion of "unlawful killing" could be given either by simply using those words or through a narrative to the same effect.  The Coroner had referred to regulation 28 reports as ‘toothless’, and whilst Swift J considered that this was a rather colourful description; the Coroner had not misdirected himself on the law in relation to regulation 28 reports; and therefore this ground also failed.  Failure to have regard to relevant considerations  Swift J found that the Coroner did have regard to the possibility of making a regulation 28 report and that reading the decision in the round it had specifically considered and took the relevant considerations into account. This ground therefore failed.  Takeaways and practice points  The most interesting part of this decision is that the duty of the State to investigate does not have to be via the traditional inquest route and can be discharged via different avenues – there is no automatic right to an inquest. If other investigations have taken place in/around an incident one must take a holistic view of everything and consider whether it meets the article 2 duty; if so, there may not be a need for an inquest.  Bharat Jangra is part of the Inquests Team at Parklane Plowden. Bharat’s profile can be accessed <a href="https://www.parklaneplowden.co.uk/our-barristers/bharat-jangra/">here</a>.

Leila Benyounes – £1.5 million Settlement in Delay in Diagnosis of Breast Cancer

Leila Benyounes represented the Claimant in a clinical negligence claim arising from a delay in diagnosing breast cancer, resulting in permanent physical and psychological symptoms, and a loss of fertility.  As a result of the delay in diagnosis, the Claimant required a double mastectomy, chemotherapy and radiotherapy which would all have been avoided but for the negligence.  Permanent physical symptoms included bilateral breast deformity and asymmetry, chronic lymphoedema, peripheral neuropathy and chronic back pain. The Claimant developed an anxiety and depressive order and suffered loss of fertility and a reduced life expectancy as a result of the negligence.  Causation of the Claimant’s injuries and the permanent symptoms resulting in an inability to return to work was strongly contested by the Defendant. Ten disciplines of expert evidence were relied upon, and the case was listed for a 10-day trial of causation and quantum.  Leila acted for the Claimant throughout this claim in respect of pleadings and conducting conferences with experts.  Settlement in the sum of £1,545,000.00 was eventually reached at a joint settlement meeting before trial.  Leila was instructed by Lindsay Clark at <a href="https://www.switalskis.com/people">Switalskis</a>.  Leila is a specialist in the fields of Clinical Negligence and Inquests. She is Head of the Inquests Team at Parklane Plowden Chambers and is ranked as a leading junior in Legal 500 and Chambers and Partners for Clinical Negligence and Inquests and Inquiries. Her full profile can be accessed <a href="https://www.parklaneplowden.co.uk/barristers/leila-benyounes">here</a>

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