Wednesday, 18 September 2013

Family Law - additional catch up notes

Daniel Pelka
A Serious Case Review was conducted following the death, in March 2012, of Daniel Pelka (aged 4) -  BBC Coventry and Warwickshire 17th September 2013 .  The Review Report has been published by the Coventry Safeguarding Children BoardREPORT.  At the Crown Court in Birmingham - before Mrs Justice Cox and a jury - Mariusz Krezolek and Magdalena Luczak were sentenced to life imprisonment for Daniel's murder with a minimum terms of 30 years.  The excellent sentencing remarks of Cox J graphically describe the appallingly brutal treatment meted out to Daniel.  Local Safeguarding Children Boards were created in England by the Children Act 2004 s.13 and, in Wales, by section 31.


The Court of Appeal (Civil Division) has given judgment
in B-S (Children) [2013] EWCA Civ 1146 - a case which concerned the consent of a mother to adoption.   Parker J refused a mother's application under section 47(5) of the Adoption and Children Act 2002 for leave to oppose the making of adoption orders in relation to her two children. At the conclusion of the argument the Court of Appeal was satisfied that the appeal had to be dismissed and informed the parties accordingly. Time was then taken to put the reasons in writing because the appeal not merely required a decision on an important question of law as to the proper application of section 47(5); but it also raised some very significant matters of more wide-reaching importance.

At para 30, the Court of Appeal expressed concerns:

  1. We have real concerns, shared by other judges, about the recurrent inadequacy of the analysis and reasoning put forward in support of the case for adoption, both in the materials put before the court by local authorities and guardians and also in too many judgments. This is nothing new. But it is time to call a halt. 

  2. In the last ten days of July 2013 very experienced family judges in the Court of Appeal had occasion to express concerns about this in no fewer than four cases: Re V (Children) [2013] EWCA Civ 913 (judgment of Black LJ), Re S, K v The London Borough of Brent [2013] EWCA Civ 926 (Ryder LJ), Re P (A Child) [2013] EWCA Civ 963 (Black LJ) and Re G (A Child) [2013] EWCA Civ 965 (McFarlane LJ). In the last of these, McFarlane LJ was explicit (para 43):

  3. "The concerns that I have about the process in this case are concerns which have also been evident to a greater or lesser extent in a significant number of other cases; they are concerns which are now given sharper focus following the very clear wake-up call given by the Supreme Court in Re B."
  4. It is time to draw the threads together and to spell out what good practice, the 2002 Act and the Convention all demand.
The court then proceeded to state:
  1. Two things are essential – we use that word deliberately and advisedly – both when the court is being asked to approve a care plan for adoption and when it is being asked to make a non-consensual placement order or adoption order.

  2. Adoption – essentials: (i) proper evidence  First, there must be proper evidence both from the local authority and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option. Too often such analysis was absent. 

    Adoption – essentials: (ii) adequately reasoned judgment  
    The second thing that is essential, and again we emphasise that word, is an adequately reasoned judgment by the judge.
    These 'essentials' are amplified in the judgment and therefore this case is essential reading for all family law practitioners.
DNA testing:

A further case - M (A Child) [2013] EWCA Civ 1131 concerned DNA paternity testing as an element of Hague Convention proceedings.  Longmore LJ delivering the court's judgment noted:
  1. It is a serious step for any court to take and should not, in my view, be ordered unless it is necessary for it to be done before a conclusion can be reached. It may not be a physical invasion of privacy since samples can be obtained without any substantial physical bodily interference but it is on any view a psychological invasion of a litigant's rights to a personal life. There are also inherent welfare considerations. Is it to be explained to Lina (now aged 5) that a bodily sample is required from her or is it to be taken surreptitiously? If it is to be explained, who is to furnish that explanation; if it not to be explained now, is she ever to be told that it has happened and what the result is? These are troubling questions to which there is no obvious answer.

  2. It seems to me, therefore, that DNA testing as ordered by the judge, if it is to be done at all, should only be done as a last resort. 
The Hague Convention is scheduled to the Child Abduction and Custody Act 1985

Further cases:

A (A Child) [2013] EWCA Civ 1104 (06 September 2013)
The CA allowed a Father's appeal against final orders providing for no direct contact and a s.91(14) order in a case characterised by systemic failure of the Family Justice system over the 11 years the case had been consistently before the court. The CA found that the Article 8 rights of the Father and child had been violated and that while the judgment appealed was not of itself wrong and thus necessary to set aside the concerns about the process was so strong that per CPR r 52 (11) (3) the outcome was unjust because of a serious procedural or other irregularity. The matter would be restored for an effective full rehearing, first being listed before Mr Justice Moylan to allocate the case to one senior Family Judge.

IA (A Child) (Fact finding; Welfare; Single hearing; Experts reports) [2013] EWHC 2499 (Fam)

The Court gave judgment following a fact finding at which a Father was found responsible for non-accidental injuries to a child KA who had died of unknown causes. The welfare hearing was in respect of IA the parties second child. The court entirely exonerated the Mother of any failure to protect and made important points about the unrealistic expectations of professionals in respect of innocent and ignorant parents. The social worker and local authority involved were heavily criticised. 


On Family Law Week there is a good article about the Supreme Court's decision In the Matter of A (Children) [2013] UKSC 60 - Judgment here

1 comment:

  1. There are, goodness knows, enough cases to make men hate their own gender - the Pelka case could make us hate our entire bloody species. Good to see that the Judge did not buy the d.v. defence. I can - just - understand how d.v. can make a woman take it out in sudden anger on her child; but not how it can make her take part in the cold-blooded cover-up which these two animals planned as the child lay dying.

    One oddity: in the SCR we are solemnly told that the names attributed to the other children are not genuine and the genders may or may not be. The you read the sentencing remarks and learn their true genders.