12 December 2017

October 2017 - Public Law

For a PDF version of this months update: Click Here


Inherent jurisdiction to authorise the deprivation of liberty of a child aged 13 in circumstances where a secure accommodation placement was not available

A Child (no approved secure accommodation available; deprivation of liberty) [2017] EWHC 2458 (Fam)


No need to set out the full history but it is clear from the contents of the case summary prepared by Counsel that during the last two years the child has displayed desperate history and catalogue of very seriously uncontrolled behaviour. Each of six residential placements he has been in has broken down.

The local authority would wish to have already placed the child in an approved secure accommodation placement but these are very scarce. As this has not been possible, they hoped to place him in a unit but with a plan for, if necessary, considerable restrain be used in order to keep him safe and prevent absconding.

Section 25 of the Children Act 1989 makes provision for the making of secure accommodation orders and can be made by courts including those composed of lay magistrates. The reason for the local authority applying to the High Court is to obtain the authorisation for the deprivation of liberty of the child as no secure accommodation is available.

Mr Justice Holman remarked that ‘Quite frankly, the High Court sitting here at the Royal Courts of Justice is not an appropriate resource for orders of this kind, and I personally have been almost drowned out by these applications this week.  Further, although I have no time properly to consider this today, I am increasingly concerned that the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. There is a grave risk that the safeguard of approval by the Secretary of State is being denied to some of the most damaged and vulnerable children.  This is a situation which cannot go on, and I intend to draw it to the attention of the President of the Family Division.’

The High Court gave permission on 22 June 2017 for deprivation of liberty of the child for 3 months. The hearing before Mr Justice Holman was for review.

Whilst the application was not for a secure accommodation order, section 25 makes it clear that an order cannot be made for secure accommodation unless the child is legally represented unless he has refused to apply for been refused for legal aid. Whilst the application is not for a secure accommodation order the analogy is a close one and the statutory safeguards shouldn’t be sidestepped by lack of resources.

Mr Justice Holman expressed concern that the child had been deprived of his liberty for three months without the appointment of a guardian. Therefore, it was ordered that the child be joined as a party and that CAFCASS must appoint a guardian to act on his behalf.

A review hearing in one month will be listed and the child must be enabled to attend if he expresses a wish to unless the guardian states that it would be damaging for him to.



Decision of the President prohibiting the publication of what was intended to be a guidance judgment by a circuit judge concerning the use of covert recordings in private law proceedings.

Re B (A Child) [2017] EWCA Civ 1579


Appeal from an order in June 2016 of HHJ Bellamy hearing private law proceedings between two parents of a girl born in May 2005. Both parties were unrepresented but had the assistance of McKenzie friends. The Child was represented by Counsel instructed by her guardian.

The Father in support of his case of deliberate alienation by the Mother sought to rely on various covert recordings. HHJ Bellamy invited interested bodies to make submissions on the use of covert recordings. The judge subsequently handed down judgment on 2 June 2016, making 2 orders; dealing with the substantive issues and that the judgment be published. The Father appealed. In relation to the substantive order, permission to appeal was refused.

In dealing with the second order for the publication of the judgment, Lady King LJ, who heard the application for permission to appeal, listed the matter for further oral permission to appeal with the appeal to follow if allowed and remarked that there was an important issue to be heard as HHJ Bellamy in his capacity as a circuit judge had purported to provide guidance without permission to do so and there remained a question of whether it was appropriate for that ‘guidance’ to be disseminated.

The matter came before The President and Lady Black LJ on 13 September 2016.

The President observed that there are two reasons for the issue of covert recording becoming a more pressing issue in recent years. Firstly, the increasing sophistication and decreasing cost of modern recording equipment. Secondly, widespread distrust of the family justice system.

The President stated further that whatever the nature of the recording, there are likely to be a number issues and questions that may arise as to 1) the lawfulness, 2) best practice outside of court, 3) the admissibility, 4) various other evidential and practice issues, including determining how to put the recording into evidence, whether it has been edited etc.

The President outlined that ‘broadly speaking, the judge’s approach to the covert recordings was in accordance with the law as it now stands, and his reasoning in the ultimately decisive paragraphs dealing with the present case was, I agree with my Lady, unimpeachable.’ However, he did go on to state a number of serious concerns.

Firstly, the judge was wrong to say that anyone seeking to rely on such material must apply to the court. FPR 22.1 allows the court to control the evidence but it doesn’t follow that permission is required.

Secondly, the judge set out guidance as to how such an application should proceed. Something which he did not need to do and an exercise not appropriately undertaken by a Circuit Judge. Further, it was not an appropriate objective in such a case for the judge to devote so much time and resource in order, as her put it to ‘stimulate discussion’.

The President allowed the appeal and directed that the judgment is not published and further invited the Family Justice Council to undertake the task of considering the whole question of covert recording.



Judgment in care proceedings in which Jackson J considers the accuracy of hair strand testing for cocaine use and offers guidance in relation to report writing

H (A Child – Hair Strand Testing) [2017] EWFC 64


This judgment was given at the end of care proceedings in relation to an 18-month-old girl.

The key factual dispute in the case was the mother’s cocaine use. The mother accepted that she had used cocaine up until July 2015 but was adamant she had not used cocaine after that period. The evidence largely supported the mother including test results from her drug support worker and reports from professional who had face to face contact with her. However, the scientific information from hair strand tests interpreted by three separate testing organisations showed low-level cocaine use for at least some of the time.

At the case management stage three testing organisations, Alere, Lextox and DNA Legal accepted the invitation to intervene.

At the final hearing, a representative from the three testing organisations, a Trichologist instructed by the mother and a jointly instructed Forensic Toxicologist gave evidence.

At paragraph 28, Jackson J set out twelve propositions agreed between the expert witnesses about hair strand testing relating to hair growth, the metabolism of drugs, contamination and the identification of cocaine use.

Alere and Lextox felt that mother’s results, taken in isolation were likely to result from active use rather than external contamination. DNA Legal did not reach the same conclusion for the 2017 results. The Trichologist was not satisfied that the results established active drug use and the Toxicologist’s conclusion was that they may or may not.

Jackson J summarised the evidence of the expert witnesses into four topics:

The significance, if any, of the variability of the results as between different laboratories;

The nature and significance of industry guidelines;

The significance of findings of cocaine or its metabolites below cut off levels; and

The significance of the comparison between wash samples and test samples.

Among Jackson J’s findings he stated that variability in the results does not call into question the science but the need to treat numerical data with caution. The science is inevitability accompanied by margins of variability which is particularly relevant for results in the lower range. He also drew attention to the fact that different organisations use different thresholds based on different numerical values for their categorisation of results being low, medium or high.

Jackson J also gave good practice guidance for report writing and reading of hair strand tests. He set out that:

‘the responsibility for making proper use of scientific evidence falls both on the writer and reader. The writer must make sure as far as possible that the true significance of the date is explained in a way that reduces the risk of it becoming lost in translation. The reader must take care to understand what is being read and not jump to a conclusion about drug or alcohol use without understanding the significance of the data and its place in the overall evidence’.

He went on to given seven suggestions to improve the comprehension of these reports.

Jackson J concluded that the evidence showed that the mother had used cocaine at a low and infrequent level for part of 2015 and during 2016 but he accepted the mother’s evidence that she had been free of drugs in 2017. The court made a supervision order with the child remaining in mother’s care.