Hello. Welcome. Everybody might have stuff to my mood on fake. Pleased to welcome you to two days possession. Not This is through data law. Andi. I'm looking at Children Law and Practice and update for 2020 destinies. Session, too. So, as you know, this session consists off the second off a three part session whereby I'm taking you through somebody. Significant case law and statute developments in all aspects of Children or matters during 2019 and also early part off. 2020. So we're looking at various matters related to Children or last time in the first session. You'll remember. I spent that session going through various private Children. All aspects, particularly matters relating to enforcement contact current responsibility, parentage Onda in particular. Mattis relation of finding of fact hearings today. Then what? I'm going to opportunities. I'll be looking at her recent case on leave to remove from the jurisdiction on. They will be spending some time looking at the position with public law matters. Principally, I'll be taking you through some matters related to revisiting or finding of fact hearings. We'll be looking at the often difficult areas surrounding placement Children overseas and assessments being done overseas in public law cases and then towards the latter part of now be taking you through some elements off secure accommodation and some recent guidance insofar as that is concerned, the case A number of things to cover today as always, a put the copyright acknowledgment here from you acknowledging Crown copyright and also the dfe as corporate author set up provisions also there, right less than look at the position with firstly removal from the jurisdiction. And this is where I'm looking at this case of re be appealed his 2019 decision. So this is handed down by Miss Justice Russell sitting in the High Court of Justice Family Division on this judgments handed down on the seventh worked all between 19. Now what this case relates to its ah, private law matter on what it relates to is a three year old child whereby in a private law context, the father had applied for a child arrangements order on also a prohibited steps order whereby he wanted to prohibit the mother from removing the child from the jurisdiction of England Wells. The mother had applied for a child arrangements order on also in oil application to actually removed a child temporarily from the jurisdiction of England Wells to Iraq. Andi parties had made normal application for an expert report on safety and security in Iraq, along with a any means of attention a child be returned in Should a child be retained in Iraq? Bearing in mind that Iraq was a month convention country, So the couple had in fact agreed to de joint instruction off an expert to give an opinion on the risks associating with the removal of a child to Iran, Iraq on, uh, be court charge it up, made in order that the child should in fact live with the mother and spent Howard father. The application for the payment of steps order had been dismissed. Andi Order had allowed of mother to take the child abroad for a period of up to one month on. That's what that is, that part of the ordinary that the father was appealing in relation to the dismissal of his application for Pierce O, which was to prevail, prohibit the mother from taking a child after jurisdiction of in the wells and to Iraq. So it's that part of the judgment which he was appealing on, really that this particular judgment is all about now by way. Background The couple were born in there. Arc doubts substantial connections with the Kurdestan region in Iraq. The mother had to in a primary care off the child on the fatherhood. 10. Participated in ship, not a couple, and be mild for some six years and the child was born. What's the parents were still living in Iraq on that relationship, seemed to deteriorate and a couple and separated and then shed the K off. The child per senator later brought Andi child arrangements. Order application was such that this was later agreed between the parties so that the child would live with Mother on. Also spend alternative or alternate weekends with the father, along with some visits during the week on school holidays would be split between between the two of them. Now this child arrangements or to contain the standard person provision which, as you know, is set out in the Section 13 subsection. Two of the Children are 29 which allows a person in his favor the child arrangement space. If I live with it to enable that person to take the child out of the jurisdiction of digging wells. But for a period of up to a month on, um, the father was not content with that, even though there was a living with order and favorite mother. He wasn't agreeable to the mother taking a child out of the jurisdiction of in a while, so therefore, he sought a peer. So and therefore papers steps order to prohibit the mother from taking a charter to be jurisdiction of England, Wales on. Also, he sought to withhold Charles passport from the child's of fun of mothers possession. Now there was expert evidence, as I mentioned, and in particular, the expert evidence that was being sort was to give an opinion as to the potential rest her child on the mother if the mother was to take the child. That particular district, an area in Iraq. And the expert opinion was that although the region that the mother want to take the charter in Iraq was not trouble free, it wasn't subject to saying risks off terrorist violence in some other parts of Iraq. On, in fact, the area, the region that the mother wants to take the child to was for many a much higher than in the rest of Iraq. Uh, slope on that basis at the risk Richard was set out was actually a lot less in that regard. Now the father didn't make any Part 25 application for further expert evidence and, um, two weeks before a court, in respect of any risk for abduction was that the risk, in fact, lay with the father, not the mother on that speaks the charge that had found that the child had not been abducted by their mother previously, but indeed by the father on the tragedy that also set time a judgment that it appeared that the father didn't have any concerns about the safety of security and Kurdistan based on his own actions. Andi, in fact, it himself lived there for many years previously. So based on that, the court was satisfied that the Pierce, a warder, should not be granted, which is what the father was seeking. So that's what led to the appeal on the father really appealed on the basis that he took the view that the trial judge had failed to adequately take into account the potential risk off the mother taken a child outside the jurisdiction and taking a child to Iraq and in in the views of the judge off the father, potentially placing a child at risk on data. Father also claimed that the trial judge had felt adequately assessed the risk to the child safety and security in Iraq, and also that the charger that failed to put into place sufficient safeguards should the mother wish to take the child to Iraq now in terms of the risk factor, like, say, whether the child, which would be taken by mother and and not be returned by the mother Dear Father, has stated that the truck not given sufficient weight to this. But in fact there was no evidence to suggest that the mother would even not return the child in the circumstances. Now, in terms of connections that the two had with Iraq, the child had a close and extensive links with the coast on region in Iraq. Not only would the mother's family, but also with the family of the father and the tragedies judgment was wholly improperly concerned with the child's welfare throughout the child's minority in that regard, and with that in mind, the question therefore, was was which the court decide was had, the trial judge fell to really consider the lack of safeguards. But in fact, when the father was asked, what kind of say caused did he think that the trial judge should have watched it put in place? He struggled to provide any answers and suggesting some form of a syrupy Andi couldn't really think of or give any proper safeguards in that regard. So on balance, the court took the view that the trial judge's decision was the right one. The risks were considered alongside the experts report that had been identified on. This wasn't a case where by DP, which is steps order should in fact have been granted into second stance. And therefore the trial judge did have the benefit of hearing the parties and considering your evidence. And they found that basis the father's appeal against a refusal of to making up to Pierce the water was, in fact, dismissed Again, it's a useful case which puts together the year. The fact is, when you look at removal, okay says Okay, right, we're not gonna be looking at the position with revisiting finding of fact hearings in this case, off free. A number two Children. Finding of fact hearings was handed down by the Court of Appeal on the 14th of November 2019. The leading judgment was handed down by Lord Justice Peter Jackson on that very sad cases when it's one that had been decided a few years previously, were by sadly, a 10 year old child have been found dead in her bedroom in the house where her parents and other siblings lived in the house of time. We're her parents and also her five other siblings on that. Subsequently, at the local authority, it commenced Cape scenes relating to other Children. Now the medical evidence showed that the child the 10 year have died had died of strangulation on also shut suffered injuries to her genital area. The police investigation itself was deficient on no criminal charges had in fact been brought against any parties, whether the parents or otherwise. An inquest was opened and adjourned on. There was a decision taken that there would be no further police involvement in relation to the parents. On this was a case where by the parents have bean born overseas. Their country of origin was such that FGM. Female genital mutilation was prevalent on that. Parents had come to the UK as Children that married had been no previous concerns about their Children. And they had been a post mortem examination, which had been carried out by the Home Office Forensic pathologist North, a pediatric pathologist on bond. The child has a had a mark on her neck, which was indicative of a ligature, strangle, ization and ingenuity. Genitalia was such that the cause of the child Charles death had not been an accident, but more supplies, sexually motivated homicide. So, like, said a local thought, he had large campus. Things are really knows procedures day salt findings that dangerous to child would cause other than through. An accident on by the local authority sold findings that the child had been sexually assaulted and killed. But the local authority had been unable to identify who the perpetrator or perpetrators were, and it had not been possible to determine who among us. The parents on the other family members were responsible for the child's death. Onda parents argued that the child's injuries on death must have been as a result of an accident whereby you far from her bunk bed entangled in some netting. On that, she then does. She suffered injury to the neck, and also she might have been attacked by an intruder into the family home. So fact funny had taken place. And in fact, at that fact finding, the court dismissed the proceedings largely because of the deficiencies in the police investigation, on also in relation to the police disclosure on the the look. This is what letter local thought appealing and hence the the Metro Court Appeal decision on the court decided that the trial judge had not correctly approached at D. Abedin. Approved a court had not looked at the whole picture on had not, in fact, Annelies de expert evidence. So local force local thought was seeking a number of findings on the case on that they were seeking findings that injuries to the neck and the other deaths were caused by ligature strangulation. They were arguing that the injuries to the genital area were caused by trauma, which included an element of penetration. I by the by digitally or by an object on uh, the local talk to ASEAN findings that injuries genital A. We were caused that some time within a few hours of death and local photo a CD. Finally, that interest, of course, guided by the mother and the father, or by one of the other family members on bond that one or more, those individuals must have been aware off the money off the chance Death nutty, appear cool had decided that teacher's mother had caused a genital injuries in the course of an attempt at female joint in regulation. That place outside a home, on that the child had been strangled in the family home after they returned and that the father had colluded to this. One of the other issues, of course, that was being raised was whether or not deep perpetrated could be identified. On that, the court said that, of course, sometimes it may not be possible, and therefore there will be a polar perpetrators and therefore the may well be a language refining. But unless the court had made the doors particular findings on, that's what then let the subsequent appeals to the parents, then supported by their brothers, who were also in a pool, then subsequently appealed on the court did say that it's quite your air for an appeal. Court to reverse trial judge's finding off primary factor is referencing particular to the case of re be at the 2013. Decisions on big appeal by the family were along the lines off them, arguing that the trial judge was wrong to find genital injuries have been causing connection with if f g m and also defining about the janitor entries being a changeable injuries being caused. That mother's home was unfair to the mother who had been born who had not even been put on notice about the possibility of such a finding being soared on bond. They have been argued that there was insufficient evidence to make the findings that had been sorted out dangerous, caused by either or both parents or the other family members. So the parents were arguing that the trial judge had failed to look at the totality of the evidence on a side to the fact that there was no supported medical evidence that the child had been subjected to FGM. Now, in fact, the court took the opportunity to say that when it comes to finding of fact hearings, neither the seriousness of the allegations nor the seriousness of the consequences makes any difference as to the findings. Developing sort on the findings of fact must, of course, be based on evidence, including. And Andi, including emergencies that can be properly drawn from the facts on judges are entitled to make findings that have not being sort by parties, which may be a property. Some cases. But here in relation to findings that were being sought first of foremost in relation to the F G M finding that had been made, the court did say that the crucial question was how to dangerous to a child come about Onda hard to the cause of death occur Andi here The court did say that there was insufficient evidence to find that do that there was evidence of FGM that had taken place or tempted FGM on the judge's finding her. But the judge had even in fact, declined to allow specialist culture evidence to be called on. Therefore, the judge's finding relationship with genital injuries had to be set aside on that basis as 40 other findings that this was one whereby those were also set aside because the judge had no considered the totality of all the evidence, other evidence and Therefore, a court appeared loudy appeal on the basis that the decision was wrong come procedurally unjust. There had been very limited real evidence to support what had been, uh, sort in the first instance that this is where interestingly, the local authority took the view that they advise the court to substitute its own finding. So if they were going to be setting aside, defining stunned him, asking the quarter peer to substitute what they would regard as being adequate violence. But in fact, a court appeal declined our invitation. It would only be a proper course if there was just one releasing caption outcome on the issue here, half it was that they would need to be consideration off. Uh, really, the fact that no funnies were made here on day for consideration as to whether the matter should proceed on welfare on the basis of your funnies at all, and therefore it would only be a proper course if there was only just one realistic outcome, which here there wasn't it's on the facts. The court did allowed the appeal that did set aside a judge's findings and instead remitted a judge in the case before a different judge for case management in that regard. And there for the free magenta mutilation protection order which had been made, was also set aside in the second stances. Okay, rights distant brings me on to this other case, which is quite a lengthy one. But it does look at given us a lot of a useful information surrounding the position and placement off Children overseas and particularly looking at what the procedure is insofar as Muchas off that kind. Eso this the case of Katie and you placement of Children with kinship care is abroad. So this was a 2019 decision handed down by Recorder Samuels QC sitting as a deputy High Court judge on the 23rd of September 2019 and by where background. This was a case involving three Children, aged 23 and 10 and they lived in Bermuda. The parents rather lived in Bermuda before coming to the UK onda local authority here in England had commenced Cape seedings on, but they were then looking at the possibility and the feasibility off assessments of connected persons of friends, family and other persons connected with the child and never was part of their obligation to look at the feasibility of the child really living with another family member. They looked at the possibility and commission the possibility off viability assessments. So there's a viability assessment on the take and of family members, and all the artists were supposed to be a viability assessment. It was, in fact, completed on a document that some of you may be familiar with called a Koran bath connected person, friends and family form C. So you actually don't on that? Former was carried out by local social work from Bermuda, and in fact, it was a lot of thought in England I had commissioned for that social. It can commuted to carry out its assessment using that particular form. But the court couldn't quite understand why this had been asked to be done, because a viability assessment is essentially just that. It's to see whether or not somebody's effectively a runner or not to see whether or not it is an estate, Then go on and do more in depth assessment. But this assessment that was done this friends and family forms see which was the buff form is a very extensive assessment that would normally be undertaken not to assess the viability of replacement, but more looking at detailed discussions in that regard on that. Nonetheless, even though its assessment was actually done, both the garden under local authority felt it was inadequate. And therefore they asked for the assessor to prepare a dinner report, which was done, but there were still dissatisfied with it, and then later they're after. There was a direction given for the local authority to obtain on assessment from independence. Social worker who was based in Jamaica on this document that was done later was called a special guardianship report. But interestingly, neither the local authority, naughty guardian or the court had in fact had requested or commission this. And yet the actual assessment was done. I was headed special guardianship reporters. That was the other difficulty here When I wonder, local authority filed its viol evidence at they, in fact made clear, and there find evidence that light off the positive special guardianship assessment that have been undertaken by a Jamaican independence social worker. The court was being invited to consider making a special guard supporter in faith of deep paternal grandfather under the auspices. Ah, off a nasty order and they the local thought, therefore were commanding the Yes, you ought to be made into circumstances as opposed to a child Arrangements order specifying Living With. But this is where again the court couldn't quite understand. Firstly, wider local thought were asking for this Onda under circumstance of it bearing in mind particularly off the fact that neither court, in order local thought he had in fact commissioned an STD assessment in the second stances. Nonetheless, the mother opposer planners sought for the Children to be reunited into her care. On that she opposed the plan of the placement of a child with the extended family members in Bermuda on the guard. He was concerned about the making of a special guard support in favor of the family members given up. The Children have never lived with them to date, and this is where the court had been given permission for construction of an expert to advise on the status and Bermuda off the potential orders that had been identified. Onda permission therefore had been given to instruct an expert to advise on the status in Bermuda off orders. Andi in particular what was the most effective way of securing a placement in Bermuda. What steps would need to be taken to give effect of those orders and what immigration steps would need to be taken so as to enable Children to actually reside in Bermuda. So a particular expert was identified to provide that advice. Who was a family law practising barrister in England who was instructed to provide that piece of work on bond, who then gave an opinion Andi expert, barrister and advised that the local authority should be contemplating issuing warship proceedings in respect of Children on this would be the best way of achieving permanency for Children in Bermuda. But some of the things which were not considered would be, such as what orders, if any, in England that maybe made would be effective and Bermuda what would be effective? Those orders if they were made and also it was not considered as to what would be the position of placement of a child who was subject to an interim care order in England in Bermuda. Self example. If, as you know, there's a child is subject to an interim care order in England and the aim is to place them overseas than English, local thought he would be contemplating wishing to seek permission to place. I sided jurisdiction pursuit, said Judge, a two paragraph 19 off the Children activated night. So that was something that was not considered in the advice that was given. One of the other difficulties in this case which was identified is the potential carers, and Bermuda had not been provided either with any of the court papers on their photo had given him into court papers, nor would have given the assessments of themselves or to support plans or transition plans. And again, you can see that this is a major difficulty, which we try and avoid in these cases. As you know, typically, when you got family members in England or Wales, often what we'll have is when assessments are being commissioned, we will often have directions along the lines off. A copy of the viability assessment will be provided to the to the person to whom it relates to, and they would then have the opportunity of taking legal advice on then if they wish to challenge the assessment, then normally would give them some two weeks within which, to a large any such application they're after but here there was no such Provision 4000. In fact, they were not even given a copy OD at the assessments. No details of the transition plan and also dad be no consideration given as to whether or not there were to be joined as parties or otherwise to the application. They had also being very little communication between the local authority and also the mutant authorities in that regard. So that was one of the other difficulties. And this is where then his lordship took the opportunity to really set out what should be happening in matters such as this, where by there is that connection with another member state, and particularly when one is looking to assess overseas and potentially place Children overseas. Firstly, then His Lordship made reference to the fact that there is a lot of material available relating to the work undertaken by the Children of families across borders to see Faber's It's known one in particular. His Lordship referred to the 2018 report in September 2018 cord cross border child safeguarding challenges, effective social work. Practice night comes for Children on also, the fact sheets off that same period about UK social workers practicing overseas and placing Children with families off See soldiers reference to that. There was also a reference to the Department for Education Guidance, which had been made available to principally the working with fine Authorities, child protection and care orders in July 2014 as well as the cross border child protection cases in the 1996 hate conventional Order of 2012 as well as the placement of looked after Children in EU member states of January 2013. So there's a lot of guidance there. His Lordship also refer to the very significant case of Ri PS, which was a case leading judgment haven't done by Lord Justice Rider in 2018 and also to then president Family Divisions of James Mumby, who also gave a few in that case and the guidance that came out of me. PS, as well as also the guidance that had been issued Body Family, Justice Council, THEAN trim guidance on Special Garden ship, which had also become available as well. So those reference to that and then there was also reference toothy various other cases. There was a case of er 2018 and WP or 2019 whereby WP in particular emphasized how important it is for the court is attacked. Clearly, the findings that are being made or may be made in relation to threshold for examples of the court, therefore set out that as well, so you can see a number of significant PC's off guidance towards which was set out, which should have been considered and and everybody should be referring to, particularly when the facts are similar to the facts in this case. So starting them with the position with Threshold on One of Things, which was identified in WP to 2019 case, is that it's all very important that terms when you are looking at placement of Children overseas. It's possible that the court's findings will be considered understood at some future stage by third parties or, for example, by professionals working in a foreign jurisdiction. And therefore it's essential in cases such as that that day that the case is concluded with all essential documents which clearly set out why char protection measures were needed to be initiated and what the court's findings were. These on that and if it's very, very important to ensure that there is a clear document which sets out the basis upon which the court had made findings as to threshold and if on that basis that needs to be done. One of the other things that the court set out was that the local thought he needs to obtain a point of contact or several points of contact with the receiving authority on that contact should be maintained through telephone and email or correspondence generally to ensure that there is a negotiation and dialogue between the English and Welsh Authority and the photon authority in terms of communication of information and advantages of having that point of contact, of course, is that the neighbors information than to be communicated between the agencies eso looking at issues over consents that maybe, they say, to enable of foreign social work to cover up visits. Also to deal with issues over relevant cultural religious issues and also how to obtain documentation such as police evidence, medical evidence and so forth on one of the other things his Lordship did say, is to ensure that there may well be mandatory notification requirements. When you are evolving a child with national where there's in its national aspect, unless there's good reason not to do so. The relevant foreign embassy should also be informed at the child is subject to court proceedings. And this is where there were specific reference in this case to the previous judgment off the then president of family divisions of James Mumby. The case of Ri Ri e off 2014 way. In that case, his lordship set that sort of a key things that need to be considered when you're looking at matters relating to jurisdiction and particularly placement of Children overseas and also where you got Children with her falling connection. His lordship also said that in in terms of ensuring that there is good fostering relations, care should be taken to avoid unnecessary, unwarranted criticism off those working in other jurisdictions. So it would be wrong for English Awash subject regarding, for example, to critically criticize the assessment that may be done by social occur overseas on the basis that may regard it as inadequate or unhelpful. Big. Sadly, that's what was happening here in that the initial report that was done to form see, even though it was a very detailed report, it was phrased as being inadequate by the English sexual from guardian. But it's important to note that assessments done overseas may be very different on it doesn't mean that they are inadequate. Similarly, assesses from overseas should have regard English wash assessments have done has been inadequate. They will be done differently because the whole set up, of course, will be different by the nature of what we're actually dealing with. On one of the other things his Lordship did say is that wonder primary purposes of commissioning and assessment is so that the assessment is positive. And of course, we can then consider on what basis the child may be placed overseas. So, for example, is going to be under an interim care order, in which case you got shudder to paragraph 19. Is it going to be under a special gunship? Porter, His economy and the child arrangements specify leaving with order or some of the order even watching, for example. So that's one of the other things. Then he's launch. It went on to issue off who should actually be doing the assessment, and this is where assessments, of course, need to be third, any to be regressed. I need to be considering gold of various elements, and there should be no lesser standard except expected when the assessment is being done off placement overseas, as opposed to placement in England, Wales. But in terms of who should be doing the assessment, His lordship did say that the obvious options assessments could be done by English or Welsh social workers. That could be a report at the Commission On On Expert Overseas when assessing overseas to do the assessment. So they are certainly different ways of doing that. There are, of course, advantages of a UK based social kadoumy assessment diversity that have a good understanding of various regulations. For example, on the local authority procedures don't know about how to seek approval. For example, Fire Regulation 24 for example, Don't know about the panel process. Don't know about the review process. Don't know about the form artery assessments that will probably know the family. They will be able to make direct contact open to make face to face visits in that regard. So they are some advances there, but then, of course, but then you've got see fab Children of families across borders where they set out specifically, Neff actually eat recommendations for local thought, is looking to have assessments on the taken overseas by having social workers in those areas. Gadget counting out the assessment on us because one of the key things that need to be asked is whether a social worker based in the UK has the right to work in the country concerned, because in some areas it may fact even be a criminal offence for the social worker from the UK to actually work overseas in a particular country. And they could be seen as working illegally if they don't have direct relevant right to work in the country concerned on if they travel, there's part of the employment. So, for example, what fees er are they applying for? And does the visa actually entice them to carry out that piece of work, for example? So that may be preaching that country's criminal law or regulatory requirements to maybe find a may be imprisoned for examples? It is that and also didn't have the appropriate insurance, for example, to carry out that piece of work in the other country, for example, so tourist travel insurance may not be valid on their foot. That's an issue that they would also need to consider in that regard or so on, uh, one of the other things. Therefore, his Lordship said that see, if Abbott had made a recommendation off his many local authorities simply meant the overseas assessment by inviting a carrot cake for the purpose of further assessment, so that then the relationship between the child on that care can match to be observed and therefore day something that made me to be considered on contemplated also in these cases so that, therefore, professionals working with a foreign jurisdiction may not understand the concept of a viability reporting. Therefore, that's where there has to be appropriate dialogue between the UK based, social electorally social prophecies to set out what is expected in terms of natural assessment itself. So in terms of what is actually meant by viability report, his Lordship did say that many professionals working with foreign jurisdiction may not understand what the concept of a viability report is. And this is where his lordship specifically referred to the case off PS. And as you know, that's a very, very significant case decided back in 2018 whereby the then president family Division, Sir James Mumby said that the question to be answered as to whether somebody who's to be assessed to not he's to see whether they were runner or not, has to use the words off His lordship on that pays. We need solid foundation. But that praised law assessment would not necessarily to be very lengthy. It's sometimes referred to simply as a viability assessment on Dhere. What appeared to be a viability assessment on a paternal grandfather in Bermuda seemed to take some four months to be undertaken by the social work, which his Lordship said clearly wasn't a viability because that's not really what what format it took, and therefore it doesn't really fall within what three PS was actually stating. And therefore there may well be the case that viability assessments may be undertaken by the social workers from the UK after collaborate collaboration with social workers in other jurisdictions. So therefore, thus there's that issue or so so court was saying that where there is a potential foreign placement, which is to be subject of an assessment, one that needs to be clear as to what the person assessment is that he's been recorded in the relevant case management order, also now one of the other things that is the position with recognition off orders and a position would expect so if a child is going to be, uh, placed elsewhere than it is fight or to ensure that appropriate expert evidence is obtained if that is needed, you need to ask yourself whether, for example, a special gun support is made in the UK Is it going to be recognized? And the media, for example? That could be challenges faced faced in insofar as that is concerned and therefore it's very important to obtain the necessary type of expert evidence. Do we need, for example, in mayor order? So that didn t obtain a member order where pie if say, there is a child arrangements, or to specify living with order made here in favor of the grandmother, then would she need to then ensure that that order is then mirrored and therefore similar equivalent order is made in Bermuda, for example, to enable it to have the benefit of off the effects of that water and first it upon her. So when you are looking at taxpayer evidence, one of the things his Lordship said that you need to be looking at is the expert needs to be looking principally at what immigration states sort of Children and adults would be in that jurisdiction. What fees as may be required for the Children to even enter that jurisdiction on what steps need to be taken to ensure that they reside permanently within that jurisdiction? Also, what would be the effect of any order made in England wells overseas? Well, that order even be recognized. For example, this example. What family New orders need to be made here to give legal effect to support towards housing and education overseas, for example, on Doesn't mirror order need to be obtained in the office? He's country on day for the expert who cows at this piece of work must the one who is able to give specific assistance insofar as that is concerned. So therefore, pulling orders together hear what was being suggested, therefore, is the possibility of a special gland support be made in favor of D, family member office sees. But this is where His Lordship and set out that even had the option of making next year would have been open to court bony mind here. There wasn't TSG report. I had been done. But even if the option had been available if the assessment requirements in the REX had been complied with difficulties on the facts in making such an order in favour of cares, abroad had the same kind of problems as we had in re PS in the sense that the child had not actually been placed with the potential carers overseas. Also, one of the other difficulties here was that the support plan was inadequate and therefore there was failing to confidence that he had fully considered the care that would be needed in the support will be needed to ensure that the child could actually flourish in a placement would be with the care is overseas and therefore, with that in mind, what His Lordship therefore said that there was guidance given by the Family Justice Council about the possibility off a child being placed with kinship care on the child arrangement, sort of coupled with in from supervision order. So that's one possibility which may be needed, but also, as we BBS sets out, it is very important to set out the pros and cons of each type of order unidentified, which one would be the appropriate one in the circumstances on under current legislation, the only order there for that would be available. Two neighbors local thought to retain parental responsibility would be to make an interim care order, but then to have permission to place a child outside of Jews. DECHAUME Medicare is using the shutter to Paragraph 19 route on His Lordship poster questions as to how the provision off regulations 22 on 24 2 K plenty regulations would be met if the child was placed overseas with the care, and also whether making a direction under sections a six off the Children Act so that the child would remain subject an interim care order. But in fact it was a judge who is regulating the plane placement by using 38 6 and therefore for pips of assessment. Whether that is everything that could be adapted and used on whether it would be recognized if the child was placed with the carer in Bermuda again, order these questions needs to be carefully thought through in deciding what order should be made into circumstances. Also, one of the other key things that was being raised here was this re PS had also investigated the issues surrounding whether or not there is a need for party status for proposed kinship carers in these circumstances on there was uncertainty whether there was a need for party status for proposed kinship. Care is one of the criticisms in this case. Was that the perspective long term caress that were saying that they had very little site off any of the documentation there hadn't been joined his party's, They hadn't received any other papers and North transition plan and therefore there was some difficulty in them being able to put forward their view in that regard. On with that in mind repairs, the Court of Appeal specific, specific, considered the issue joined her in connection with the placement of Children parents under SG orders and therefore that was something that needed to be considered and should have been thought through on the facts of this case also, so with all that in mind, you can see there were certainly a number of outstanding issues in this case, which therefore need to be dealt with. The support plans were inadequate in terms of potential SG orders. It wasn't a profit to conclude the matter on a making of NSG order. It was one clear as to whether such an order would even be recognized in in Bermuda and therefore with all that in the mind, given the deficiencies in the assessment in the planning process. This was a case where by there was a need for they're to be further worked in terms of their for joining the proceedings to enable further information to be obtained with that in mind. So that's what has been done in this case. There needs to be there for further information obtained with a view to in deciding what order funny should be made there after So you can see this of lengthy case, but of a very significant one, because what it does, it really emphasizes how important it is to ensure that there is a a sufficient dialogue between the social workers and guard in here in the UK and also with the social record teams overseas, particularly with the assistance off the sief up teams. Right that them brings me on to the final case. Don't want to discuss with you today, and this is really looking at this issue of secure accommodation It's a relatively recent case off re be secure accommodation order. This was handed down on the 21st November 2019. Leading judgment by Lord Justice Baker on a case itself in for was a 15 year old child who appealed against him. And it was in fact, a local authority who appealed against the refusal of the application for secure accommodation order the appeal was successful on. I'm going to go through with you on what basis the court decided to make the secure accommodation order s Oh, this was a case went by the case was one whereby you have a 15 year old child who had made allegations of sexual abuse perpetrated by an out Lee man by now, Dillaman also later allegations of sexual abuse were made against the child's mother and also stepfather. Now the child was later arrested, having had was later arrested after allegedly starting a fire at home and threatening the mother and stepfather with nice on screwdrivers on. There were further acts off aggression, followed by the child absconding from Children's home. Uh, the child was placed in a residential home under Section 20 of the Children Act on the local thought. He subsequently started care proceedings on Dat Child actually absconded from the Children's home and a sort Remember stuff The local thought it gets sort seek to secure this child. But whilst seeking to place a child, the child's behavior became more extreme. Mental House assessment concluded that the child was not suffering from any acute mental illness on uh, one of them. More extreme concerns was that the child had attempted to throw herself off a bridge, intricate now, and she had tried to jump off a bridge. Now there was no secure unit available and the local authority kept looking for secure unit. But none could be available. And consequently, local authority place a child in a nor tentative placement on. But they approached there for local agency about more attentive placement, which specialized in providing shared accommodation and placements for young people aged over 16. On this placement that the identified although it wasn't registered by office, that a normal proved what a sector of state for uses. A secure accommodation unit was one whereby the child could be placed here for a period of time, and what happened then is the local authority place the child here on day applied for an order vilely inherent jurisdiction of the high court authorizing by where the doll orders of therefore deprivation liberty order for their local thought to be authorized to keep the child at this placement that she had been in for the weekend. And the regime in that placement was famous in line with the DOL requirements, in the sense that this child that was to be kept in this unit, she was to be prevented from leaving the premises unless she was a complete by staff members with a high level of staff ratio of at least 2 to 1 of access to other young people was very limited. All the doors and windows would be locked on. She would be subject to 21 soup, 2 to 1 supervision of the property. Also, she would be restricted to having access to, for example, knives and cutlery and razor blades. Onder her Internet on phone usage was also going to be severely restricted. So clearly, given the level of restrictions in that regard, it clearly was a deprivation of liberty in there for one that needs to be authorized and hence the local authority quite rightly applied before the inherent jurisdiction the high court where they came before Circuit Judge sitting as a Section nine jet up to family division. And therefore they watched a judge to grant which the judge duly did on order under the inherent jurisdiction, A proven the placement by making the deprivation of liberty order. So that was done on the The judge was satisfied that the placement of this child had this unit at this juncture was appropriate in terms of meeting her best interests and therefore regarded it as a as a authorized placement in that regard. Now, then what happened was this. The agency staff at the unit did inform the local authority that will know Donald I'd be made. They did say that although they could continue to provide accommodation for the child at this unit, they did say that the child did, in fact need to be at an appropriate and approved secure unit on Day four. Couldn't really stay here long term. On Day four, the charm needed to go to an appropriate on approved secure unit assumes one became available. There were no further instance of absconding a disputed, but there were several reports of attempts at self harm. Now, some weeks later, locks of thought it in did find, finally, a secure accommodation unit on a therefore applied for secure accommodation order. But this is where the application was, in fact, refused. In that day, trial judge took the view that the child's needs were or to be meant being met in this alternative placement for which there was a dollar order and therefore the judge thought it would be disproportionate to make the secure accommodation order for their full file to do so on its that refusal to grant a secure accommodation order, which led to the local authority and subsequently lodging the appeal on this particular appeal. That is what what this case was about. Now the child therefore remained at this unified inherent jurisdiction order and, like, say, that's what the local authority were appealing, not a trial judge was off the view that the arrangements that would be made in place for the child at least current unit were effective, and we're working with the chance absconding had seized on that the tragedy was interviewed at the Section 25 criteria off where they for not met. Of course, Section 25 bodies off the Children Activity. Aim is to place a child in a secure unit in England, but it would be Section 11 line of 2014 Active d Aim is to place a child in the secure unit In way was on one of the questions that was being asked here is what kind of a placement can be used as a secure unit. And this is where there was reference made particularly to the Children Secure Accommodation Regs on 91 which have been amended by the Children Social Work Act of 2017 on, uh, in particular, the regulation Regulation three, for example, provides accommodation of Children's home shall not be used to secure unless, in the case of accommodation in England, it's been approved by the secretary of state for that use on In the case of accommodation in Scotland. It's been provided by service, which has been approved by the Scottish ministers. Eso, of course, a Children's home Accommodation cannot be used as a secure accommodation unless it's been approved by so by the secretary of state and having said that Regulations seven of 1991 Rex provides that Section 25 shall apply to set another categories of Children in addition to those looked after, for example, that was accommodate by health authorities. It not regard, and therefore one of the things here really that Call was looking at is what is actually therefore meant by secure accommodation. Its first instance on the court did say that when it comes to applications for secure is secure accommodation to be seen as a last resort illicit or a paragraph 24. The judgment in particular, His Lordship said that early Gardens said that secure accommodation was a last resort, in the sense that once you've considered all other options and it's been failed. But was this still the case on Dhere on the facts, the court said that not necessarily. Of course, you have to do to ask yourself where they're not a criteria matter, not for the purposes off Section 25 but in terms of what is secure accommodation. The court did say Parker's 46 to 48 that the phrase secure accommodation is defined in section 25 subsection one as meaning accommodation provided for the purposes off restricting liberty and therefore, if the sole purposes for that, then that is secure accommodation and nothing more than that needs to be established in order to demonstrate that it is secure. Accommodation was specific reference. Here made Toothy case of a Metropolitan Borough Council against DB. For example, in 1997 case, this involved a case involving a 17 year old who had refused treatment on UH on who said that she wanted to be discharged from the hospital. That local thought he had applied under Section 25 in order authorizing that chance placement in a secure accommodation which was at the maternity ward. And it was arguably after child that the hospital ward was not secure accommodation and therefore the application by the local thought he was wrong. But in fact, the court said that it's the restriction of liberty, which is considered to be the essential factor in determining why secure accommodation. Andi, To constitute secure place does not have to be designated as such. Each case turns on its own facts of really ah, placing a child in the maternity ward and restricting Modell. Liberty could be classed as therefore, secure accommodation in that regard, whenever the essential question is whether or not one is looking to deprive that child off their liberty. And this is where his lordship also specifically referred to the more recent case off Reedy. That's the 2019 decision by the Supreme Court. We're buying that case. Previously, the high court had been asked to exercise its inherent jurisdiction. Toe, authorized under confinement of a teenage boy in a Socratic hospital on the high court, had taken the view that the parents parent responsibility. It does not go far enough to enable them to consent to the child being confined in a Socratic hospital for his own benefit. If the child lacked capacity, the quarter people had taken a different view, but then on appeal, when the matter came before the Supreme Court. The Supreme Court therefore been asked to comment on whether or was within the scope of parental responsibility for apparent with PR to consent to living arrangements for 16 or 17 year old, which otherwise amount of deprivation liberty with the meaning of Article five on. In fact, in that case, the Supreme Court had taken a vida. It wasn't within the scope of print responsibility and therefore deprivation off liberty authorization would have to be obtained. And one of the questions, therefore, that was being raised following on from that was that very mind That decision, therefore, that a doll order was therefore being being sort and was necessary in those circumstances. Lady Black in that case in particular, took the view that accommodation in a Children's on can can to secure accommodation as long as it is used for the primary purpose off, depriving that child of their liberty. Eso It's question of really what the intention is behind why the child has been placed in that unit in the first place, which finds us to weather nights, secure accommodation or not. And, um so therefore, with that in mind here, the court took the view that secure accommodation could incorporate Children being placed in a Children's home and therefore, arguably even where that home is not authorized by the secretary of state. And he's not offs that approved. But on the question is, would record them make a secure accommodation order for a person Section 25. In that case, well, this is where the court and went on to consider what the criteria are for secure on But this is where Section 25 Subsection four, provides that if a court determines that any such criteria satisfied, it shall make an order authorizing the child to be kept in secure and specify the maximum period for which there may be kept in the circumstances and that therefore, the question are we rd relevant criteria and, for example, is part of Cry came in now the welfare test in that regard. And this is where paragraph 60 40 66 of a judgment are worth reading. Queer by here. His Lordship did say that since the periods decision in re M and secure Accommodation order 1995 it has been accepted at Charlesworth Face not permanent when deciding an application under Section 25. But it was uncertainty as to the evaluation of welfare which the court is required to undertake. And in fact, the court did said that well, phase, not apartment, but it is an important element in the court analysis and therefore it is in fact one of the relevant criteria. So with that in mind, what are the relevant revised right here for the purposes of a secure accommodation order, therefore, being granted and these therefore under revised factors, which the court appeal have now set up for this. This was set on impact of 98 of the judgment on Day four. In deciding whether the relevant criteria are matter, not the court has to ask themselves this question. Firstly, is the child being looked after by local authority? Alternatively, did I fall within the category? Other categories? Best finding Regulation seven. So you could ask yourself that question. First and foremost, they gotta be looked after by the local authority. Oh, for within the other categories in next seven. Secondly, what do they need to look at is, is the accommodation which the local thought he proposed to place a child. Secure accommodations. That's the second thing. Is it designed I would the primary purpose of restricting restriction of liberties. That's the second question you need to ask yourself. Thirdly, you then got to consider the criterion, such in Section 25 Children Act 119 of the 2014 act, depending upon whether it's England or Wales, where the child is to be placed. And that is, is the court satisfied that the child has a history of absconding and it's like to abscond from any other accommodation description of accommodation on def that do abscond. I kind of liked it, too. So for significant harm or if they're kept in any other description of accommodation, I would like to injure themselves or others says you can see this. Section 25 for 119 criteria. So says third party criteria forced any If the local authorities proposed to place a child in secure Jonas home in England has that accommodation been approved by the secretary of state for users Secure. Therefore, that will need to be done in the local thoughts. Proposed a place a child in securities on its cottoned is that accommodation and providing body approvable Scottish ministers and therefore that would need to be satisfied as well. Andi. Second, the next question is, does the proposed or to safeguard and promote the child's welfare? That's as we've just seen. Welfare is a relevant factor, which they force me to be. Wait up and also is the order proportionate, for example, to the benefits of making the order outweigh the infringement off right in the circumstances. Therefore, that would also need to be considered in yes, circumstances because it's got to be a proportionate order in the circumstances. And, of course, if the child is under the age of 13 down. Regulation Fordham Mind 91 Secure Accommodation Regs requires that the placement must be approved by the secretary of State's. That's the other part of criteria, as you know, it shared the court need to consider, and therefore these are all the relevant criteria which need to be considered. And if they are in all of these are met. Then Section 25 subsection four provides, in fact, obliges the court to make an order and a dissection authorizing the child to be kept in secure and also specifying the maximum period for which they could be sort. So you can see that the revised criteria do take the position somewhat further than what we had previously in that period. City. We're looking principally at Section 25 Jordan active. You're looking to place a child in England or Section 119 of 2014 actively looking to place in Wales. And then, of course, either of those criteria could be met for the purpose of placing a child in Scotland as a result of the Children Soldier Work Act of 2000 and 17. Judge your tent, but now you do need to go through the other elements of the criteria as well. So making sure we look see whether they are looked after and ordered A for within regulation seven of 1991 leg is the accommodation that your purple proposing to place a child in secure accommodation, i e. Is it designed? Time replaces purpose of restriction of liberty. It is placing a child in that unit that unit authorized by the secretary of State s So that's that Andi does it promote the child's welfare and he's a proportionate. It's a very, very important Make sure that all of those factors are therefore accordingly considered also, So they found the facts. The court took the view that would allow the appeal. The trial judge had decided that the trial judge would refuse to secure application because, like placement that a child was currently placed and did not come within the definition of secure accommodation on the basis that it therefore came within definition of any other description of accommodation. And also a trial judge had found that the child was not like it to abscond from the car placement or injured themselves while staying there. But those criteria, of course, were not the case on. Also, he was wrong for the trial judge not to make the order on the basis that a current placement was not secure. Accommodation was clearly it was because the primary purpose off the accommodation of the child in the placement was to restrict child off their liberty. So therefore, on that basis, the the order should have been made on. Therefore, His Lordship was satisfied a trial judge was wrong to proceed on the basis of the current placement was not secure and therefore was wrong in deciding that the conditions in Section 25 subsection one were not met in the circumstances. So again, you can see the thinking behind that. Okay, that then brings this session tone ends have covered a fair bit with you today, looking at various elements off private Lord, start off with about removal from a jurisdiction would then spend some time looking at the position with revisiting finding of fact hearings that may have been made with the then spent a fair bit of time looking specifically at the position with placement of Children overseas and really, why it's very, very important. Short up. We are clear about the base upon which Children are placed, taking into account a lot of the coyness that's been given to us by the Dfe by sea fab by the Family Justice Council. North of my cases such a three ps on and the latter part of they have taking you through some of the key elements surrounding secure accommodation and also the revised criteria in light of this more recent case that we've had. I hope this has been a useful session for you. And then when we meet up for the next to final session, I'll take you through some more elements off. Children Law. Thank you once again on our speaking. Next time. Thank you.
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