<!-- wp:paragraph --> <p>In the article 'Parental responsibility for married and unmarried fathers: should the distinctions remain in 2023?' Family specialist, Chloe Branton explores the current position regarding parental responsibility for married and unmarried fathers and outlines some recent and historic cases that have examined this issue.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Chloe also looks at ss 2, 3, and 4 of the Children Act 1989, including how parents can acquire or lose parental responsibility depending on whether they are mothers or are married or unmarried fathers. and considers the 2022 census data on families and family types within the UK from the Office for National Statistics.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>More information about Chloe's article can be found <a href="https://www.familylaw.co.uk/news_and_comment/parental-responsibility-for-married-unmarried-fathers-should-the-distinctions-remain-in-2023">here</a>.</p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p>In <em><u>F v M</u></em> [2023] EWFC 5 Mr Justice Hayden gave judgment in what is hopefully the final part of the protracted litigation between a father (F) and a mother (M) of 2 young children. This particular judgment followed the decision by Hayden J in <em><u>F v M</u></em> [2021] EWFC 4 back on 5 January 2021 regarding very serious allegations of coercive and controlling behaviour by F. As Hayden J notes in this most recent judgment, his approach in determining such allegations within finding of fact hearings was endorsed by the Court of Appeal in <em><u>H-N and other (Children) (Domestic Abuse: Finding of Fact Hearings) (Rev 2)</u></em> [2021] EWCA Civ 448. This particular judgment, however, focuses on the aftermath of findings.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Hayden J sets out some of the ways these proceedings have been delayed, usually by the actions of F. This judgment however, was mainly focused in regards to whether and what orders should be made for contact between F and the 2 children. Given the focus more recently on the finding of fact hearings themselves, this judgment assists with the inevitable question that results once findings are or are not made: what happens next?</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Hayden J’s judgment is useful for practitioners in covering 3 main areas of interest which can often arise when advising clients of the ‘welfare stage’ post finding of fact hearing:</p> <!-- /wp:paragraph --><!-- wp:list {"ordered":true,"type":"1"} --> <ol type="1"><!-- wp:list-item --> <li><strong>No Contact Orders- and how even annual indirect contact can be inappropriate</strong></li> <!-- /wp:list-item --><!-- wp:list-item --> <li><strong>Parental Responsibility- and the disparity between married and unmarried fathers when it comes to removal of PR.</strong></li> <!-- /wp:list-item --><!-- wp:list-item --> <li><strong>‘Lawfare’ and Section 91(14) Children Act 1989- how section 91(14) can be an appropriate protective filter for children and parents in the face of continued controlling and coercive behaviour.</strong></li> <!-- /wp:list-item --></ol> <!-- /wp:list --><!-- wp:paragraph --> <p>This case law update will briefly discuss each of these three highlighted issues that arise within Hayden J’s judgment.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>No Contact Orders- and how even annual indirect contact can be inappropriate</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Cafcass officer had filed a report recommending indirect contact by way of a letter from F once per year to the children. M was to store the letters in a safe place ‘until such a time that they are able to read his letters’ [14]. She had concluded it would not be possible to safeguard the children from F’s emotionally and psychologically abusive behaviours until he had undertaken behaviour change work. The advocates contacted the judge to inform him they were preparing a consent order to adjourn the hearing, with the Cafcass officers’ recommended contact to form part of the order. The judge refused the application, stating he thought it was “at very best, misconceived.” [15]. He also noted the lack of application for an order pursuant to section 91(14) Children Act 1989, which will be considered later, along with how F used the court process to continue to control and abuse.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The court considered a statement from the maternal grandmother (‘MGM’) about the indirect contact that had taken place between the children and F. Her account was deemed insightful and powerful, and recorded in the judgment as a result at paragraphs 25 and 26. The judge considered that MGM had “rightly identified that F was projecting an image to his children that cast him in a glamorous way” [28]. The judge had no confidence that F can use indirect contact as a way for the children to know something of their cultural origins, as the Cafcass officer had hoped. Instead, the court considered him to be a ‘fantasist’. The judge examined some of the indirect contact he had sent, both in terms of contents and the type of cards themselves, and was concerned that they were unsettling and confusing for the children. F had not ever seen the youngest child, yet he was writing that he loved and missed them. The judge was clear F had not shown insight into his behaviours throughout the proceedings, nor “exhibit even a scintilla of empathy” and was instead arrogant [29].</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Evidence was heard from the Cafcass officer. She was clear that if the parents had not been married, she would have recommended the revocation of F’s parental responsibility. In the words of Hayden J therefore: “This begs an inevitable question. If that were so, why would she recommend indirect contact. It struck me that the Cafcass officer had reverted to general principles, without weaving them into the particular circumstances of this deeply troubling case.” [27]. He considered that the general principle of leaving open the option for some contact between child and parent, often for some genetic inheritance and cultural understanding, is a sound and important principle. However, this must not be seen as automatic. Instead “The need for it and the potential damage that might be caused by it, need properly to be evaluated” and the reach and importance of indirect contact should not be underestimated [27].</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Overall, the judge determined that, when analysed, he could not identify any benefit of indirect contact for the children. Instead, it was easy to see how indirect contact (even annually) could be harmful to them and M. Whilst M had been prepared to agree to this level of contact, she was doing so to try and avoid conflict and was troubled by it. She was also giving deference to the Cafcass officer as a professional who had given a recommendation to the court. This also demonstrated how M had not yet “fully achieved the capacity to assert her own autonomy” given F’s controlling behaviour during and since their relationship [31]. At the conclusion of the hearing F decided not to oppose an order for ‘no indirect contact’ after all. A judgment was still required, however.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Hayden J therefore provided the following view in the final paragraph of his judgment: “… there are occasions where it is necessary to recognise a disagreeable truth. There is, sometimes, though very rarely, a parent who has nothing to offer a child and whom the child is better off without. This is such a case.” The judge considered how, even in adoption cases, limited indirect contact is invariably ordered to highlight how uncommon a true no contact order is. The judge wished to be clear, however, that the family’s negative assessment of F was correct. He stated that his “comments in respect of this father are not ones that any Judge makes lightly. Judges do well to avoid emotive terms, but equally, where a clear finding requires to be made, it cannot be concealed in abstruse or cryptic language…” [32]. &nbsp;</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>This case serves as a useful reminder that indirect contact can be important and reaching, and thus a useful and powerful connection for the children with a parent in appropriate cases. However, it also reminds advocates that indirect contact should not be seen as an automatic principle. It must be properly analysed in light of the risks and any findings in a case. Parents and advocates should also not be afraid to challenge the assessment of a professional where it seems they may be relying on general principles without proper application to the specifics of the proceedings. Whilst true “no contact” orders are likely to still be rare, the analysis here is useful when considering what advice to provide in response to a contact recommendation.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>Parental Responsibility- and the disparity between married and unmarried father’s when it comes to removal of PR.</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>As previously stated, the parents in this case were married. F was accordingly granted PR automatically for both of his children in accordance with s2(1) Children Act 1989. S4 of the Act deals with the removal of PR. As lawyers in this area well know, s4(1) only applies if the parents were not married at the time of the child’s birth. In this case as F was married to M at the time of the children’s births, s4(2) which provides that a person who has acquired PR under s4(1) ceases to have PR only if the court orders, is not applicable.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Hayden J provides a helpful summary of the key issues around whether it is compatible with the European Convention on Human Rights &nbsp;(‘ECHR’) to have such a distinction between married and unmarried fathers through reference to both <em><u>Re A and B (Children: Restrictions on Parental Responsibility: Radicalisation and Extremism) </u></em>[2016] 2 FLR 977 and <em>MZ v FZ and Others</em> [2022] All ER (D) 130.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Hayden J appears to agree with Russell J in <em>MZ v FZ </em>in recognising the way society and families have changed considerably since the Children Act 1989 was introduced in October 1991, especially in regard to cohabitation. Hayden J here stated that he finds the “anomaly of legal status [between married and unmarried] to be profoundly uncomfortable” but that the “contemplated protection for the applicant parent and children is to be found in the regime of Prohibited Steps Orders and Specific Issue Orders” given there can be no withdrawing of PR. Essentially the “legal status of a married father remains intact [but] it can be stripped of any potency to reach into the lives of the mother and children” thus adversely impacting his ability to affect the welfare of either.” [7].</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>As the government is urged to consider litigation to better protect the rights of cohabitants in various ways, it may well be that thought is given to this distinction around PR. However, successive governments have continued to allow greater rights and status for those who are married on the basis that marriage has a positive impact on society. Overall, it would seem unlikely for a statutory change to be made any time soon. Advocates should therefore be sure to check the basis upon which a father has PR and be able to advise their client accordingly.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>‘Lawfare’ and Section 91(14) Children Act 1989- how Section 91(14) can be an appropriate protective filter for children and parents in the face of continued controlling and coercive behaviour.</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Within this helpful judgment, Hayden J references an earlier decision of &nbsp;Lady Justice King in in <em><u>Re A (A Child) (Supervised Contact) (Section 91(14) Children Act 1989 Orders)</u></em> [2021] EWCA Civ 1749 in the identification of ‘lawfare’. This is a concept which Hayden J considers “encapsulates an experience that will be familiar to every family lawyer” [19].</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>King LJ considered ‘lawfare’ in that case noting: “[41] ….the type of behaviour indulged in by one of the parents amounts to ‘lawfare’, that is to say the use of the court proceedings as a weapon of conflict, the court may feel significantly less reluctance than has been the case hitherto, before stepping in to provide by the making of an order under s91(14), protection for a parent from what is in effect, a form of coercive control on their former partner’s part.”</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Hayden J went on to say that, given the enhanced understanding we now have of controlling and coercive behaviour, we can now recognise that “When all other avenues are lost, too often the Court process becomes the only weapon available.” [20].</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Advocates will be familiar with their clients expressing frustration at the protracted nature of litigation, with some applications being deemed an insidious way to continue to exercise control and torment their former partner. Hayden J reminds lawyers and judges to be “assiduous to identify” when lawfare occurs, to ensure the court is a “guarantee of protection” rather than “manipulated into becoming a source of harm” [20].</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>It is these such cases that are likely to be assisted by consideration of an application for an order pursuant to section 91(14). Previously, and still at times, seen as a draconian order, the new Domestic Abuse Act 2021 (‘’DDA 2021’) provides a handy reminder as to their existence and power.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Section 91A was inserted into the Children Act by the DDA 2021, with a “considerably wider scope for the greater use of section 91(14)” in the modern age of wider social media access and presence. Hayden J echoed the view that section 91(14) was always intended to “provide a protective filter from inappropriate applications” to protect children and the live with parent. He also reminded lawyers that it “is not a punitive measure towards a recalcitrant parent. Neither is it a bar on access to justice” given it does not prevent applications entirely. Instead, it is designed to be used in appropriate cases to protect the child and primary carer from “the stress and uncertainty of a misconceived or vexatious application.” [18]. In short, it is these cases of ‘lawfare’ that cry out for a section 91(14) application.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Hayden J considered that the section 91A provisions “are transformative. The section provides a powerful tool with which Judges can protect both children and the parent with whom they live, from corrosive, demoralising and controlling applications which have an insidious impact on their general welfare and wellbeing and can cause real emotional harm.” [20]. The provision recognised the toll protracted litigation has, especially on those who are likely already vulnerable.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>When hearing this particular matter Hayden J was clear that he found that “F found the opportunity to extend his controlling behaviour into the Court arena.” [17]. The judge also considered that the agreed protective provisions of the parties did not recognise the opportunities litigation had created for F to exert control over the children and M’s lives. [17] Consequently, the judge agreed with the making of a section 91(14) Order, albeit noting F had agreed to one in any event.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Whilst not a case setting precedent, another recent case with a section 91(14) Order made is that of <em>TF v DL v E&amp;P</em> [2022] EWFC 1389. Here DJ Webb granted the Order for 5 years at the recommendation of the Children’s Guardian, against a backdrop of 15 recent applications. As professionals consider the insertion of section 91A further, we are likely to see further cases where section 91(14) Orders are made (or not). These cases should help us see how the DDA 2021 challenges the landscape of children cases.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>Conclusion</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Overall, it is promising to see a judgment highlighting the significant impact of controlling and coercive behaviour in relationships, and how such behaviour can continue to exist through insidious applications and/or protracted litigation. Professionals, whether that be lawyers, judges or Cafcass officers, must remember to analyse cases individually rather than falling back on general principles without proper application. Section 91(14) orders can be helpful protective tools, and are being recognised as such more often, rather than seen as a draconian and punitive measure. The insertion of section 91A through the DDA 2021 has been a useful reminder of this and we will hopefully see further case law reinforcing this soon. Finally, orders for no indirect contact at all, can and will be appropriate orders in some cases. Thought must be given to the actual impact and purpose of any indirect contact, both positive and negative, without simply concluding that its existence for the ability to meet cultural identity needs outweighs any upset, confusion, or emotional harm.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>Further Reading:</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>To read more about Re H-N and the recent case law around domestic abuse allegations and the Domestic Abuse Act 2021 in general, see </em><em>Naakesha Michl’s article from 8 February 2022: </em><a href="https://www.parklaneplowden.co.uk/private-law-children-cases-involving-allegations-of-domestic-abuse-recent-case-law-and-the-domestic-abuse-act-2021/"><em>https://www.parklaneplowden.co.uk/private-law-children-cases-involving-allegations-of-domestic-abuse-recent-case-law-and-the-domestic-abuse-act-2021/</em></a><em></em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>See also Chloe Branton’s case law update regarding special measures in fact finding hearings 12 January 2022:</em> <a href="https://www.parklaneplowden.co.uk/special-measures-in-finding-of-fact-hearings-m-a-child-2021-ewhc-3325-fam/"><em>https://www.parklaneplowden.co.uk/special-measures-in-finding-of-fact-hearings-m-a-child-2021-ewhc-3325-fam/</em></a><em></em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>Chloe also published a piece on special measures in the June 2022 edition of the Family Law Journal: </em><a href="https://www.familylaw.co.uk/news_and_comment/special-measures-re-m-(a-child)-practical-tips"><em>https://www.familylaw.co.uk/news_and_comment/special-measures-re-m-(a-child)-practical-tips</em></a><em></em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>See also Lucy Sowden and Chloe Branton’s webinar on the Domestic Abuse Act 2021 and recent case law surrounding the treatment of domestic abuse within private law proceedings from July 2022: </em><a href="https://www.parklaneplowden.co.uk/replay-domestic-abuse-in-private-law-proceedings-seminar-19-july-2022/"><em>https://www.parklaneplowden.co.uk/replay-domestic-abuse-in-private-law-proceedings-seminar-19-july-2022/</em></a><em></em></p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p>Chloe Branton was one of two barristers in the country chosen to undertake a prestigious Pegasus Scholarship to the USA for 6 weeks. Here Chloe reflects upon her experiences.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>“The Union, and the Constitution, are the picture of silver, subsequently framed around it. The picture was not made to conceal or destroy the apple, but to adorn and preserve it. The picture was made for the apple-not the apple for the picture.” - </em>Abraham Lincoln</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>I am writing this report shortly after my return from a wonderful six weeks in the US on my Pegasus Trust Placement. I am incredibly grateful to the American Inns of Court and the Pegasus Trust for this opportunity to experience the legal process in various parts of the US. As time goes on I think I will reflect further upon my scholarship and realise more and more what a unique and valuable opportunity I was given. However, at this time I would like to share my present thoughts and reflections.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>I would wish to firstly emphasise that the US truly is a collection of very different states. Before my scholarship (and despite having visited the US a couple of times), I had not begun to appreciate how different each state really is from another. Each state has its own distinct cultural and legal norms, procedures and state laws. I did feel a distinct difference in approach to law and society with each of the states that we visited. We also had the good fortune of visiting during the mid-term elections, which certainly made the atmosphere more charged during our visit.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>We had the pleasure of being hosted in four main locations: Washington DC, California, Massachusetts, and Colorado. However, we also managed to attend court and meet with lawyers and judges in Virginia, Maryland, and Maine too. I am very grateful to our hosts in all states for the time they gave to host us with busy and thoughtful itineraries. During our time in California, we even made it over briefly to Nevada (technically- we were on a boat) and later drove through New Hampshire during our New England visit (both of which I am going to count in my ticking off of US states).&nbsp;</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Whilst I had understood on a basic level that there was a difference between federal and state law prior to my visit, the scholarship provided me with the opportunity to see how distinct the laws can be firsthand. It was interesting to see legal debates on the issue of jurisdiction, and then discuss with the lawyers the sort of difference that can make to the outcome of a case. For example, California is a ‘community property’ state and so could mean a very different outcome in the division of assets upon divorce than in Colorado.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Towards the start of our trip we attended the US Supreme Court for the Celebration of Excellence. It was strange to be wearing a ball gown and drinking wine in the highest court in the land. It was a stark contrast to our visits to see oral argument, but a truly wonderful night. One of the award winners at the Celebration had been a barrister in the UK before coming to the US. This certainly gave us food for thought. This topic would also arise again when we met a former Pegasus scholar in California who is now a judge there. My family were keen to receive my assurance that I would be coming home!</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>We had the opportunity to see proceedings at various levels and in different states. This included district court, circuit court, and the supreme court of those states. We spent an interesting few days at the US Supreme Court observing oral arguments, with an opportunity to then meet with the Marshall of the court. On our second visit we attended with our DC/Virginia host (Ellen DelSole) who works at the Department of Justice to see her department make oral submissions in an appeal. Our visit to the DOJ was particularly interesting as it is home to a wonderful collection of art commissioned as part of FDR’s New Deal. Seeing art in so many government buildings was something I noted about the trip and really set apart the courts and government buildings in the US from their counterparts at home. It would be great if the UK considered introducing more art into government buildings back home.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>It was interesting to hear what an impact the Covid-19 pandemic has had upon the court’s approach to oral argument. From speaking with appellate lawyers, the Marshall, and the Solicitor-General, it is my understanding that prior to the pandemic it was relatively unusual for proceedings to run as long as they now do. However, the increased duration appears to be because the courts has become more of a ‘hot bench’ with the introduction of final questions down the line of seniority before the parties’ advocate can conclude. Consequently, some hearings ran to multiple hours on just one appeal rather than the 30 minutes per side. This system was adopted by the agreement of the justices following a similar process being used during appeals held remotely during the pandemic. It will be interesting to reflect further upon this new style following the new approach bedding in.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Linked to the timing issue, I was surprised at how short hearings are in the US across the spectrum of cases. From case management, to trial, to appeal, matters can be dealt with in as little as 2 minutes. Further, domestic abuse cases happen in public with others observing as they are waiting for their cases to be called on. In one court there was a young girl, who appeared to be around 7 years old, hearing details of physical and sexual abuse in another matter whilst she sat with a woman who may have been her mother. This was very different to my experience of such cases in my own practice where each is dealt with privately, and very rarely are children in the courtroom.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>I had the chance whilst in Massachusetts to see a hearing in the equivalent to my main practice area of public law children (welfare and dependency in the US). John Burke allowed me to shadow him in Lowell at the juvenile court to see these proceedings. I was very surprised to find these sorts of proceedings are dealt with at the juvenile rather than family court like it would be back home. I spent the morning seeing cases of juvenile delinquency followed by welfare cases where the state was having to intervene to remove children into their care.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Another interesting case we saw part of was the ‘oath keepers’ case in Washington DC. This was an 8-week federal criminal trial, with charges including seditious conspiracy (which has not been successfully prosecuted since 1995), from the attack on the US Capitol on 6 January 2021. We were able to see evidence in chief and cross examination of an expert from Meta and an FBI agent. I was interested in seeing how side bar takes place in multi-defendant cases like this. The judge and advocates go on telephones at their tables whilst a white noise machine plays to cover the noise so the jury cannot here. At the time of writing up this report in November 2022 jury deliberations are ongoing.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Many of the differences between the US approach and that of England and Wales appears to be related to the US Constitution (often due or procedural process) and the separation of powers. The processes seem to be particularly concerned with ensuring checks and balances and accountability of judicial power by giving power to the public directly. The prevalence of judicial elections, either for the entire process or for retention, was one issue I was exposed to that surprised me the most. I found it particularly strange to hear about the partisan election of judges in some states . This is such a different process to the appointment of judges in England and Wales by an independent Judicial Appointments Commission.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>I struggled to come across any members of the legal profession in the US who supported judicial elections (though I am sure they are out there somewhere). Whilst I understand the argument on allowing citizens the power to choose/retain judges, I remained concerned that the process may well result in excellent judges not being retained for partisan or unknowable reasons and thus have an impact on diversity and the calibre of judges.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>However, I was pleasantly surprised at the judicial diversity I saw across all states, especially in California. We were fortunate enough to meet with judges from a range of racial and gender backgrounds. Meeting with Judge Andi Mudryk was one of the highlights of the trip for me. Judge Mudryk is the first openly transgender person appointed to the bench in California and is disabled. It was great to meet with her to talk about her experiences on and off the bench. Back home I do feel we could learn something from the diversity within the US judiciary as I think we still have a long way to go.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>However, one area I do think the US could improve upon is in relation to social/economic class. We were fortunate enough to visit various law schools as part of the scholarship. These schools included Harvard, Howard, Sturm, BUL, and McGeorge. We attended (and took part in) classes around: civil procedure, family law, negotiations, and professional ethics. We also learnt more about the importance of becoming a judicial clerk and what this role entails. I was impressed with the teaching I saw and the resources that seemed to be available for students, such as moot courtrooms and internships. It was also a unique experience to visit a historic black college as these have never existed in England and Wales. One factor that came up consistently when taking to the students at the law schools, however, was the incredible amount of debt they can end up with due to the need to undertake a 4-year undergraduate degree and then a 3-year law degree. The contrast with the UK system (where academic legal education can be completed in as little as 4-years with capped fees) was stark.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Related to the issue of resources, I had interesting conversations with judges and attorneys in Sacramento, California about the resources available in family and juvenile proceedings. I got the impression that there is much more substantial funding there to support parents to make the necessary changes and access support than there is at times at home. It seemed to be a matter of resources and funding, but highlighted to me the benefits of a well funded system both prior to, during, and after proceedings regarding the best interests of children.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>On a similar note, one experience I was particularly impressed by was the Collaborative Drug Court program at Sacramento Superior Court in California. This court is for people who plead guilty to non-violent drug-related offenses. They can enter the program with their sentence stayed whilst they complete it. Participants return to court regularly with the judge reviewing their progress. Over time, their attendance at court becomes less frequent to see if they can maintain progress with less judicial oversight. The program provides a variety of services including housing, treatment, and drug testing. If participants graduate from the program, charges are dismissed.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>I was impressed by the dedication of all professionals involved in this collaborative court to ensuring good outcomes from the participants. I was fortunate enough to meet with the judge and observe hearings in this court. I truly felt the commitment from the judge and attorneys to this process and believe it is an excellent way to tackle recidivism and improve outcomes for repeat offenders. Such programs can have a real impact on the participants as well as the wider society. I hope the funding continues for such an excellent approach to the ongoing difficulties tackling drug addiction in the US and the West in general.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Two topics that prompted a lot of questions of my fellow scholar and I from US lawyers and judges were the lack of depositions and jury selection in England and Wales. Every time this topic came up, whether at a local inn event or in general conversation over drinks or dinner, mouths would fall open in shock. Almost unanimously trial judges expressed their wish that there was no jury selection in the US either. Many shared how drawn out that process could be, adding days to already lengthy trials. On the other hand, trial attorneys expressed disbelief at the idea of not having any say-so over your jury. They also tended to be surprised that we did not have depositions, but instead filed written narrative statements which were then explored orally during the trial. This difference in system highlights another big distinction between the US and UK advocacy traditions.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Our final stop was to Denver, Colorado. We had the real privilege of attending a naturalization ceremony and got to see people become US citizens. They were presented with a mini flag and copy of the constitution. I am unashamed to say I teared up a little watching this (as did the judge). Seeing this process and hearing from some of the citizens about their experiences in their home countries made me realise how fortunate we are to live in countries with legal systems where everyone is equal under the law. Seeing people being presented with copies of the constitution also brought home the importance of the US constitution to understand law and the legal traditions of the US.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>It was not all work and no play during the scholarship, and I had the opportunity to explore some of the wonderful natural sights and museums in the states we visited. It is hard to narrow down my favourite parts. Real highlights for me included: driving a boat on Lake Tahoe, seeing the Golden Gate Bridge and Alcatraz in San Francisco, visiting Salem in Massachusetts, seeing the Flat Irons and Continental Divide in Colorado, going to the Smithsonian’s, a basketball game, famous monuments, and the Kennedy Centre in DC, and going to Judge Nitz’s farm in Maryland. Experiencing these cultural events gave me insight into life in the US in general, and allowed me to have interesting conversations with our hosts including Richard Schimel, Jesse Binall and other members of BLG.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>I would like to end by thanking everyone who graciously gave up their time to escort us or meet with us on our travels. Retired Justice Art Scotland felt like a celebrity in California as he escorted us around Sacramento and then on to San Francisco. His hospitality and the response from everyone we met made us feel incredibly lucky to have him with us. Everyone truly made us feel welcome across all the states. A special thank you must go to Ellen DelSole, Parker White, Eric Nitz, and Liz Krupa for having us to stay at their lovely homes. This made the experience feel authentic and I gained a real insight from staying with lawyers in their homes. And finally, a big thank you to Cindy Dennis for her time curating this incredible scholarship itinerary.</p> <!-- /wp:paragraph -->

<!-- wp:html --> <iframe width="560" height="315" src="https://www.youtube.com/embed/ka_e1g1kcnY" title="YouTube video player" frameborder="0" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen=""></iframe> <!-- /wp:html --><!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Parklane Plowdens Clinical Negligence seminars bring you the latest law updates. </p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Clinical Negligence barrister <a href="https://www.parklaneplowden.co.uk/our-barristers/anna-datta/">Anna Datta</a> explores and discusses the topic - Taking the mystery out of capacity, on the 03 November 2022. </p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Click the video to watch the recording.</p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p>Congratulations to <a href="https://www.parklaneplowden.co.uk/our-barristers/chloe-branton/" target="_blank" rel="noreferrer noopener">Chloe Branton</a>&nbsp;who has been awarded the Pegasus Scholarship 2022.&nbsp; Chloe was the only one of two selected barristers to be awarded this scholarship.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Chloe will be in Washington DC, California, Massachusetts, and Colorado, USA, for a six weeks placement (9 October-19 November 2022) with&nbsp;<a href="https://www.innertemple.org.uk/your-professional-community/pegasus-trust/" target="_blank" rel="noreferrer noopener">The Pegasus Trust</a>&nbsp;and the&nbsp;<a href="https://www.americanbar.org/" target="_blank" rel="noreferrer noopener">American Bar Association</a>.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Chloe will be spending time with lawyers and judges from various states in different Courts, including the Supreme Court.&nbsp;</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The American Inns of Court Foundation arrange the placement in the United States of America. These scholarships are available to barristers under 5 years call, who practice in any kind of law. Successful candidates have the chance to visit the Supreme Court. </p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The scheme is an&nbsp;exchange program, wherein young English barristers visit the United States for to learn about the American legal system, and&nbsp;young American Inn of Court members visit London to learn about the English legal system.&nbsp;</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Congratulations&nbsp;to Chloe on this wonderful opportunity.</p> <!-- /wp:paragraph -->

<!-- wp:html --> <iframe width="560" height="315" src="https://www.youtube.com/embed/1Dym-A7ij0s" title="YouTube video player" frameborder="0" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen=""></iframe> <!-- /wp:html --><!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Parklane Plowden Family seminars bring you the latest law updates. </p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Family barristers <a href="https://www.parklaneplowden.co.uk/our-barristers/lucy-sowden/" target="_blank" rel="noreferrer noopener"><strong>Lucy Sowden</strong></a>&nbsp;and&nbsp;<a href="https://www.parklaneplowden.co.uk/our-barristers/chloe-branton/" target="_blank" rel="noreferrer noopener"><strong>Chloe Branton</strong></a> examined the Domestic Abuse Act 2021 and recent case law surrounding the treatment of domestic abuse within private law proceedings, on the 19^th July 2022 seminar.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Click the video to watch the recording.</p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/chloe-branton/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Chloe Branton</span></a></strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p id="introduction"><strong>Introduction</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>This was an appeal following a finding of fact hearing within private law proceedings concerning a 2-year-old child. The mother’s 14 allegations to be determined at first instance included 3 allegations of rape. There had been no preliminary applications for special measures or consideration of the issue by the judge at first instance leading to or during the finding of fact hearing. Not all of the mother’s allegations were found proven. Subsequently the mother appealed to the High Court with different legal representation.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The judgment on appeal considered issues including: the operation of PD12J of the Family Procedure Rules 2010, the treatment of vulnerable witnesses in the family court, and participation directions/ special measures for such witnesses in proceedings. Mrs Justice Judd also discussed the new statutory provisions, including the Domestic Abuse Act 2021, which had come into force since the initial hearing.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p id="background-facts"><strong>Background Facts</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>In around 2015 the parents met online when the mother was providing sexual services via webcam. The father was a client. The mother did not live in England, and they first met in person in 2016. The mother became pregnant in 2018, with the father being unhappy about this for a time. 4 weeks post-birth the father no longer wished to be in a relationship with the mother and they separated. The mother was very distressed, and there were arguments about the arrangements for the baby’s care and finances. In December 2019 the mother returned to her home country with the baby and without the father’s consent. This led to proceedings for their return, which the mother did in February 2020. The mother made allegations of domestic abuse against the father. A finding of fact hearing was required to determine allegations.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Within the orders listing the finding of fact hearing and timetabling there was nothing referring to Rule 3A and PD3AA. Despite the details set out within the orders as to time estimates, hybrid hearing arrangements and reading time, the orders were essentially silent as to support for the mother’s participation. There was no application for participation directions and no ground rules hearing. The mother had the assistance of an interpreter and both parents were represented. There was a substantial amount of evidence produced by the parties, including over 1000 pages of documents and numerous videos and recordings, including of sexual intercourse.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p id="finding-of-fact-and-judgment-at-first-instance"><strong>Finding of Fact and Judgment at First Instance</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Evidence was heard from the mother, the father, maternal grandmother, paternal grandmother, and the father’s adult son over 4 days. Judgment was reserved and handed down a week later. The judge rejected the mother’s allegations of rape and sexual abuse. The judge found that the mother had made the allegations to malign the father to improve her own application for leave to remove from the jurisdiction. The judge also rejected the father’s allegation that the mother had sought to control his time with the child, instead stating she was an anxious first-time mother.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p id="the-appeal"><strong>The Appeal</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The mother was given permission to appeal on 2 out of the 5 grounds advanced:</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>“Ground 1 was the absence of special measures sought or implemented for the mother at the fact finding hearing and Ground 2 whether or not the judge balanced the evidence properly looking overall at the allegations.”</em> [39]</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The court was keen to highlight the limited role of the appellate court when considering an appeal against a finding of fact decision. The task is to determine if the judgment is sustainable. The court set out this well-established legal principle with reference to case law including <em>Piglowska v Piglowska</em> [1999] 1 WLR 1360. In summary, the appellate court should not interfere with findings made by trial judges unless compelled to do so. A list of reasons for this provided by Lewison LJ in <em>Fage UK Ltd &amp; Anor v Chobani UK Ltd &amp; Anor</em> [2014] EWCA Civ 5 [114-115] was set out. Some of the key points are “the trial is not a dress rehearsal”, the lack of resources, and how the trial judge heard the live evidence directly.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>When considering PD12J and the function of findings of fact, the court also considered the recent and important case of<a>&nbsp;</a><span style="text-decoration: underline;"><a href="https://www.bailii.org/ew/cases/EWCA/Civ/2021/448.html" target="_blank" rel="noreferrer noopener"><em><u>Re H-N and Others (Domestic Abuse: Finding of Fact hearings)</u></em>[2021] EWCA Civ 448</a>.</span> A significant portion of the judgment was focused on the treatment of vulnerable witnesses in the family court.</p> <!-- /wp:paragraph --><!-- wp:group --> <div class="wp-block-group"><!-- wp:group --> <div class="wp-block-group"><!-- wp:paragraph --> <p><em>“Since the hearing at first instance in this case, Parliament has passed the Domestic Abuse Act 2021, which includes s63 which provides that where a person 'is, or is at risk of being, a victim of domestic abuse', the court must assume that their participation and evidence will be diminished by reason of vulnerability. This triggers arrangements for participation directions or special measures, and is formally adopted into the Family Procedure Rules 2010 as rule 3A2A.” </em>[25].</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Whilst the provision was not in force at the time of the finding of fact hearing, the court set out how there were extensive provisions (rule 3A and PD3AA) governing vulnerable witnesses in place. When determining the appeal, the court was clear that the provisions of rule 3A and PD2AA are mandatory. Also, that there could be no doubt the mother came within the category of those who might be vulnerable, given she was alleging domestic abuse and sexual abuse.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --></div> <!-- /wp:group --></div> <!-- /wp:group --><!-- wp:quote --> <blockquote class="wp-block-quote"><p><em>“It does not appear from any of the orders that the question of participation directions was considered or determined by the court. The provision that the mother and father should attend court on different days to give evidence appears from the wording to have been made in order to meet the restrictions on too many parties being in one room as a result of Covid.” </em>[59]</p><p>As addressed at paragraph 62, whilst the mother was represented throughout the proceedings, the obligation to consider vulnerability is upon the court. Wilst advocates should have reminded the judge of this, any failure or decision not to do so does not relieve the court of the responsibility it has been given under the rules.</p><p>At paragraph 66 Mrs Justice Judd stated:</p></blockquote> <!-- /wp:quote --><!-- wp:paragraph --> <p><em>“this was a case which cried out for participation directions and a ground rules hearing, not just for the sake of the mother, but for the integrity of the court process itself. The purpose of the rules and Practice Direction is to avoid the quality of the evidence being diminished. Here, the need for directions went beyond the need to consider whether the parties should not come into physical contact in the court room or building. Matters, such as whether the mother should be visually shielded from the father as she gave her evidence, and what topics should be covered in cross examination, were highly relevant.”</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The court considered points advanced on behalf of the father on how the lack of special measures cannot be said to have led to any particular difficulties with mother’s evidence. The court, however, accepted that it is not possible to know how the absence of such measures may have affected the mother. The various impacts for some witnesses were considered at paragraph 70. It is not always possible to deduce how a vulnerable witness is or will be affected when or from giving evidence What was important here was that the judge did not find the mother a credible witness and did intervene to ask the mother to answer the question asked of her.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Consequently, in relation to Ground 1, on the facts of this case Mrs Justice Judd found the failure to abide by the procedural rules to be <em>“so serious that the decision of the court cannot stand” </em>[71]. The case is a “<em>stark reminder</em><em> </em><em>to us all that these matters need to be addressed to avoid the risk that the integrity of the trial will be undermined” </em>[72]. Ground 1 was therefore found.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Dealing very briefly with Ground 2 (as the High Court did), Mrs Justice Judd also allowed this ground of appeal too. The judge in considering the extensive evidence filed, both paper and recordings, had acted diligently and conscientiously. The judge was sympathetic to the strain faced by judges but found the second ground too. The first instance judge’s reasoning as to the allegations of rape focused on the issues of consent and capacity rather than abusive behaviour in the wider sense, and she rejected the mother’s evidence on almost every point.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Concluding her judgment, Mrs Justice Judd emphasised that she was <em>“not for one moment saying that there will be a different outcome at a retrial.”</em> [86]. That will await determination as a fresh case before a Family Division Judge, with as much further delay avoided as possible. <em>“Any new consideration of the facts or framing of the case will have to take place with a clear eye as to the evidence the court will need to come to a decision on the applications before it</em>” [87].</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p id="take-homes-for-lawyers"><strong>Take Homes for Lawyers</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>This case reminds advocates of the importance of effective case management and preparation before the finding of fact hearing is heard. Pre-trial reviews and ground rules hearings are essential, and issues regarding vulnerable witnesses and special measures should be raised swiftly. Whilst the court has a mandatory duty to consider vulnerability, advocates should spend time considering and discussing special measures with those clients considered vulnerable ahead of directions hearings. This was a case where special measures should have certainly been applied for, and most likely would have been granted. Whilst the mother was able to appeal post-fact finding, the special measures should have been sought i) by their representative and/or ii) granted by the judge prior to the finding of fact.&nbsp;</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>It is important to keep in mind when meeting with clients that they do not always understand what support is available or how such measures operate and could assist them. As far as is possible, time should be spent ahead of listing fact finding hearings to ensure participation directions are discussed with clients and between advocates to ensure the finding of fact is effective and fair. However, we must also remember that vulnerable witnesses may feel that the measures do not go far enough to protect and support them in court. This is an issue not touched upon by this judgment, but is a matter that should be kept in mind by all within the family system. It can be important to remind clients that some support is better than no support, no matter how meagre or limited they may think that support to be.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Finally, as was mentioned within this judgment, it can be easy in the covid-19 era to spend time considering how hearings are to be heard based purely upon protocols as to attendance at court of parties/witnesses and advocates. Advocates have become used to completing case plans regarding when and where parties will attend. However, the special measures needed to ensure a witness gives their best evidence must not be forgotten or relegated.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>Author</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/chloe-branton/" target="_blank" rel="noreferrer noopener">Chloe Branton</a> is a barrister specialising in both public and private children work.</p> <!-- /wp:paragraph -->

<!-- wp:paragraph --> <p>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/chloe-branton/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Chloe Branton</span></a>.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>Introduction</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>C, a boy almost 13 years old, is a looked after child following the making of a care order in 2015. C wishes to be vaccinated with the winter flu and Covid-19 vaccines. On 12 September 2021 it was announced that Covid-19 vaccination would be offered to 12-15 year old children, and the winter flu vaccine for school years 7-11 was added to the flu vaccine programme on 13 October 2021. C informed his Mother at supervised contact on 22 September 2021 that he wished to be vaccinated for Covid-19, and confirmed this to his social worker the next day. The LA and CG considered it in C’s best interests, with C’s Father supporting C’s decision.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>C’s Mother was strongly opposed to him being vaccinated and had informed CSC of her opposition to the Covid-19 vaccine on 13 September 2021. She wrote to the LA on 23 September 2021 and enclosed a signed “Vaccine Refusal Declaration”. The Mother’s case remained that she wanted compelling evidence that the vaccines were both safe and effective for C. She did not accept that the national programmes were based on sound evidence, and she did not accept that either vaccine would be effective in protecting C or other children. The Mother also stated she would hold the court responsible if C suffered an adverse reaction, whilst acknowledging that he had no known health conditions.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The LA sought confirmation from the High Court that it is authorised to exercise PR and consent to vaccinations under s33 Children Act 1989. The LA’s application for a declaration under the inherent jurisdiction of the High Court was issued on 25 October 2021. The case was brought because of: (i) the Mother’s implacable opposition, (ii) the point on these specific vaccinations not having yet been tested in Court, and (iii) for the court to exercise its inherent jurisdiction to declare it in C’s best interests to have the vaccinations if the LA does not have the power under s33.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>The Law</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The court considered s33 Children Act 1989 regarding the exercise of PR by an LA, in line with the current authorities around vaccination, including <em>Re H (A Child) (Parental Responsibility: Vaccination)</em> [2020] EWCA Civ 664. It was agreed that the Court of Appeal held in <em>Re H</em> that an LA with a care order can arrange and consent to vaccination of a child in its care where it is satisfied that it is in the best interests of that individual child, notwithstanding the objections of parents. The parties were unable to identify a judgment in a public law case concerning either the Covid-19 or winter flu vaccination programmes.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The judgment of MacDonald J in the private law vaccination case of <em>M v H and PT</em> [2020] EWFC 93 was also considered. This judgment, it was noted, was confined to the vaccines of the NHS vaccination schedule. At the time of that judgment the adult Covid-19 vaccination programme was in its early stages with no such programme on the vaccination of children. MacDonald J’s obiter comments at [4] were raised, however, given he had stated:</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><em>“… it is <u>very</u> difficult to foresee a situation in which a vaccination against COVID-19 approved for use in children would not be endorsed by the court as being in a child’s best interests, absent peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one or more of the COVID-19 vaccines or a well evidence contraindication specific to that subject child.” </em>[emphasis in the original]</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Finally, the court considered the “Gillick Competence” test as per<em> Gillick v West Norfolk and Wisbech Area Health Authority </em>[1985] 3 WLR 830. In this case, Poole J noted the child was almost 13 and strongly in favour of being vaccinated. Poole J examined <em>Re H (A Child) (Parental Responsibility: Vaccination)</em> and noted that that particular case dealt with very young children. &nbsp;The court reiterated that the assessment of whether a child is indeed Gillick competent is both child-specific and decision-specific, and that the decision of a Gillick competent child will not necessarily be determinative and can be overridden by the court. Finally, a 12-year old cannot be conclusively be presumed Gillick competent in relation to a vaccination decision.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>Judgment</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>In terms of the question of Gillick competence, Poole J noted that if a Gillick competent child were to refuse vaccination it would raise different questions than that to be looked at here (overriding the views of a parent). He noted that the LA overriding a child’s decision would be a different situation. However, Poole J declined to determine this issue any further as in the present circumstances it would be an academic activity.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Court found it would not be appropriate to investigate the merits of whether a national programme for vaccination of children (Covid-19 and winter flu) was in the best interests of children in general. It was about whether the best interests of the particular child were served by the vaccination. The Court should only consider expert evidence around the vaccines where there is new peer-reviewed research evidence focused on the safety or efficacy of the vaccine(s), or where there is a well-evidenced concern that the vaccine is contraindicated for that particular child. In most cases, therefore, expert evidence is not necessary or appropriate.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>The Court confirmed under s33(3)(b) Children Act 1989, where an LA has a care order (including an interim care order), they can arrange and consent to vaccination of a child in its care for the Covid-19 and winter flu vaccines despite the objections of the child’s parents. The basis for this was (i) the vaccination is part of an ongoing national programme; (ii) the child is Gillick competent and consents or is not Gillick competent; and (iii) they are satisfied it is necessary to safeguard or promote that individual child’s welfare. The Court reiterated there is no requirement for an application to be made for authorisation by the Court before vaccinating in those circumstances. Instead, a parent opposing vaccination would need to apply to prevent vaccination as per <em>Re H.</em></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>For completeness, it was recognised that s33(3) Children Act 1989 does not provide total freedom for an LA to arrange and consent to vaccinations in every case. LAs should not rely on s33(3)(b) to make grave decisions with profound or enduring consequences for that child. “Individualised” welfare decisions must be taken for each child, and it also cannot be discounted that there is a possibility an individual child’s circumstances may make such a decision “grave”. In the vast majority of cases, however, no application is necessary even with parental objection.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>Commentary</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>We now have a High Court authority specifically addressing the Covid-19 and winter flu vaccine programmes. Whilst the judgment essentially reiterates the law from the previous cases, the judgment is particularly welcome given the Court had previously chosen not to consider the Covid-19 vaccination scheme. Together, <em>Re C (Looked After Child) </em>and <em>Re H (A Child) (Parental Responsibility: Vaccination)</em> confirm that the LA need not apply for a declaration that it is in a child’s best interests to have such vaccinations. Despite being a public law judgment, this case is also likely now to assist in private law disputes as it goes a step further than <em>M v H and PT</em>.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Whilst the Court again confirmed that the LA need not in most cases apply for a declaration, (and reiterated that the onus is on the parent opposing vaccination to apply instead,) it is likely that LAs will continue to bring such applications. LAs remain cautious about their powers in the face of strong opposition, particularly with something as emotive as vaccination. It will be interesting to see whether any cases come before the Court following this decision where a child’s Gillick competence is to be assessed and potentially overridden.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>Related Articles</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>To read more about <em>Re H (A Child) (Parental Responsibility: Vaccination)</em> [2020] EWCA Civ 664 and <em>M v H and PT</em> [2020] EWFC 93 please see the following articles also on the website.</p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/vaccinating-children-in-local-authority-care-re-h-a-child-parental-responsibility-vaccination-2020-ewca-civ-664/"><span style="text-decoration: underline;">Vaccinating Children in Local Authority Care: Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA </span></a><a href="https://www.parklaneplowden.co.uk/vaccinating-children-in-local-authority-care-re-h-a-child-parental-responsibility-vaccination-2020-ewca-civ-664/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Civ 664.</span></a></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/specific-issue-order-for-vaccination-including-covid-19-m-v-h-private-law-vaccination-2020-ewfc-93-15-december-2020/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Specific Issue Order for Vaccination-including COVID-19: M v H (Private Law Vaccination) [2020] EWFC 93 (15 December 2020)</span></a></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><a href="https://urldefense.proofpoint.com/v2/url?u=https-3A__www.bailii.org_ew_cases_EWHC_Fam_2021_2993.html&amp;d=DwMGaQ&amp;c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&amp;r=8uBzih0l3lFPvxkaiRwrCdYQtl_IWM7KgIilUB5S9L1VUq46hBNvUyJKhk2GW4mY&amp;m=NwxqdV-Cc6hi9J8tloJul8cWxFT61sqLI4VHA7-q7v4&amp;s=bUBGEHwcV8CN-UiIC0GPQgsFbvsxnrb_Fy8qMD72eK0&amp;e="><span style="text-decoration: underline;">C</span></a><a href="https://urldefense.proofpoint.com/v2/url?u=https-3A__www.bailii.org_ew_cases_EWHC_Fam_2021_2993.html&amp;d=DwMGaQ&amp;c=euGZstcaTDllvimEN8b7jXrwqOf-v5A_CdpgnVfiiMM&amp;r=8uBzih0l3lFPvxkaiRwrCdYQtl_IWM7KgIilUB5S9L1VUq46hBNvUyJKhk2GW4mY&amp;m=NwxqdV-Cc6hi9J8tloJul8cWxFT61sqLI4VHA7-q7v4&amp;s=bUBGEHwcV8CN-UiIC0GPQgsFbvsxnrb_Fy8qMD72eK0&amp;e=" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;"> (Looked After Child) (Covid-19 Vaccination) [2021] EWHC 2993 (Fam) (09 November 2021) (bailii.org)</span></a></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p><strong>Author</strong></p> <!-- /wp:paragraph --><!-- wp:paragraph --> <p>Parklane Plowden barrister, <a href="https://www.parklaneplowden.co.uk/our-barristers/chloe-branton/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Chloe Branton</span></a>, specialises in children law work, both public and private law. She undertakes both public and private law children work and is regularly instructed for Local Authorities, Children’s Guardians and parents. Chloe has a particular interest in cases involving: vaccination, FGM and forced marriage, and the removal of parental responsibility.</p> <!-- /wp:paragraph -->