Public Law Care: Case law update

Re UDTQ (No Adequate Care Planning) [2024] EWFC 19 (B)

  • This case has sparked recent discussion over the meaning of the words “nothing else will do” in relation to Placement Order applications and adequate care planning.
  • In this case, HHJ Middleton Roy dismissed applications for Placement Orders finding that adoption was “neither necessary in this case nor is it the proportionate response”.
  • The Court commented as follows:
    • “161. Regrettably, in this Court’s experience, it appears there is a regular misunderstanding or misapplication of the words of Lady Hale in Re B [2013] UKSC 33; [2013] 2 FLR 1075. At paragraph 198 of the judgment of the Supreme Court, Lady Hale held:

“…it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do.”

  • It appears to this Court that the shorthand phrase ‘nothing else will do’ regularly becomes detached from the rest of Lady Hale’s words and misinterpreted out of context by many to mean, ‘adoption is the gold standard and anything less is not good enough.’”
  • It was also noted that “The pertinent guidance from the Court of Appeal in F (A Child : Placement Order: Proportionality) [2018] EWCA Civ 2761 has been in place now for over five years, yet, in this Court’s experience, it is rarely, if ever, applied by a Local Authority advancing a final care plan envisaging adoption.” [164]

J v E (Habitual Residence)[2024] EWHC 196 (Fam)

  • This matter involved was remitted by the Court of Appeal rehearing on the question of habitual residence (the appeal is available here - Re A (A Child) (Habitual Residence: 1996 Hague Child Protection Convention) [2023] EWCA Civ 659).
  • Further oral evidence was required at Court as to whether the child was habitually resident in the UK or in Zambia following the Mother travelling to Zambia with the child and the Father on 8th March 2022, with the Father returning to the UK on 20th March
  • The Mother asserted that the Father had agreed for the child to remain living in Zambia in April 2022, which was denied by the Father, and in any event the Father withdrew his consent for the child to spend any further time in Zambia on 23rd May 2022. The Father then made an application for a return order on 23rd June 2022.
  • The Court considered the test for habitual residence and confirmed that there must be some degree of integration by the child in a social and family environment, that being a question of fact and not of law. Where it is said that a child may have some degree of integration in more than one state, a “comparative” exercise is required (per Moylan LJ in the appeal of this case at paragraph 46)
  • In this case, the Court was satisfied that the child had not gained habitual residence from her time in Zambia from 8th March 2022 at the time when the Father made his application on 23rd June 2022. The Court also ordered the Mother to return the child to England and Wales, deciding that this was in the child’s best interests.

YM (Care Proceedings) (Clarification of Reasons)

  • In this case the Court considered when and why it would be appropriate to request clarification of a judgment.
  • Baker LJ commented: “It has become increasingly common for counsel at the conclusion of a fact-finding hearing in care proceedings to submit requests for clarification of the judge’s reasons. In some cases, the requests are entirely appropriate and not infrequently the responses obviate the need for an In a series of recent cases, however, this court has expressed concern about excessive and unnecessary requests for clarification.” [5]
  • We are reminded that: “a judgment in family proceedings, like any other civil judgment, does not have to cover every aspect of the evidence nor every point raised in submissions[8]

West Northamptonshire Council v KA & Ors [2024] EWHC 79 (Fam)

  • We now have some updating guidance from the High Court in relation to the approach to be taken for intermediaries in the family courts.
  • Mrs Justice Leiven in this case decided that a profoundly deaf Mother required both deaf interpreters and a specialist intermediary, to be approved for the whole of the trial, but reiterated guidance from the criminal courts in R v Thomas (Dean) [2020] EWCA Crim 117 that an intermediary being appointed for a whole trial should be “exceptionally rare”.
  • The principles for appointing an intermediary are repeated by Leiven J as follows [45]:
    • It will be "exceptionally rare" for an order for an intermediary to be appointed for a whole Intermediaries are not to be appointed on a "just in case" basis. This is notable because in the family justice system it appears to be common for intermediaries to be appointed for the whole trial. However, it is clear from this passage that a judge appointing an intermediary should consider very carefully whether a whole trial order is justified, and not make such an order simply because they are asked to do so.
    • The judge must give careful consideration not merely to the circumstances of the individual but also to the facts and issues in the case;
    • Intermediaries should only be appointed if there are "compelling" reasons to do so. An intermediary should not be appointed simply because the process "would be improved"; R v Cox [2012] EWCA Crim 549 at [29];
    • In determining whether to appoint an intermediary the Judge must have regard to whether there are other adaptations which will sufficiently meet the need to ensure that the party can effectively participate in the trial;
    • The application must be considered carefully and with sensitivity, but the recommendation by an expert for an intermediary is not determinative. The decision is always one for the judge;
    • If every effort has been made to identify an intermediary but none has been found, it would be unusual (indeed it is suggested very unusual) for a case to be adjourned because of the lack of an intermediary;
    • In Cox, the Court of Appeal set out some steps that can be taken to assist the individual to ensure effective participation where no intermediary is appointed. These include having breaks in the evidence, and importantly ensuring that "evidence is adduced in very shortly phrased questions" and witnesses are asked to give their "answers in short sentences".
  • Ultimately it is reiterated that it is the advocates’ job to adapt to the witness in any given case, and not the other way around!

PJ v HB [2023] EWHC 3400 (Fam)

  • This case involved an appeal from a change in an interim Child Arrangements Order made after a Fact-Finding Hearing (FFH) which reduced the Father’s contact from fortnightly to once every 3 weeks, and removed all of his ‘holiday’ contact with the child.
  • The issue at the FFH was that on one occasion at a contact handover the Father had either intentionally or accidentally struck the Mother causing a The Court found that the incident had been accidental, however the Father maintained after the FFH that the incident simply hadn’t happened and that it was a fabrication by the Mother – he did not accept the Court’s finding.
  • As a result of the Father’s non-acceptance, Cafcass recommended a reduction in contact to manage the risk towards the Mother. The Court accepted that recommendation and reduced the Father’s contact, despite having found during the FFH that there was ‘no risk’ to the Mother and having reinstated the contact with the child on that occasion.
  • On appeal, Deputy High Court Judge Cohen noted that “A non-acceptance of a finding does not necessarily lead to a situation where the frequency of contact should be adjusted[19].
  • In addition, the Judge considered what the Father had done since – he had attended a parenting course and taken some responsibility for the incident in order to move on.
  • The appeal was allowed and the Father’s fortnightly contact


The Government response to the Private Family Law Consultation has been published today consultation-response.pdf

  • The aim of the consultation was to try and resolve pressures on the family court system by providing options for early resolution of disputes.
  • The key take-aways are as follows:
    • In 2022 there were 52,219 new child arrangement cases started. There were 39,423 applications for financial remedy orders, with 11,306 of these applications being contested.
    • As of June 2023, it is taking an average of 47 weeks for private law cases to reach a final order.
    • A full review of the uk online pages and court forms will be completed in the next 3 months.
    • A new pilot is going to be launched by Summer 2024, which will be specifically designed to offer earlier legal advice to families who are facing challenges in agreeing child arrangements. The report notes that: “While we did not receive substantial evidence supporting this claim, the Law Society highlighted the fall in referrals to publicly funded mediation following the passing of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act in 2012 which removed most early legal advice from scope of legal aid.”
    • Pre-Court parenting programmes are likely to be introduced so that parents can access these earlier in the Court process, rather than waiting for the Court to order attendance at a Cafcass recommended course. At this stage, the report does not commit to making this a mandatory requirement before attending court as had been suggested in the initial consultation.