09 January 2019

November 2018 - Public Law

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Application by a local authority to determine whether a child’s placement had constituted a deprivation of liberty

HC (A Minor Deprivation of Liberty) [2018] EWHC 2961 (Fam)

5 November 2018

  • The Application concerned HC, a 13-year-old child living in a residential unit in Yorkshire. The LA asked the court to consider whether this placement constituted a deprivation of liberty. If the placement did constitute a deprivation of liberty, then the LA sought authorisation of that deprivation of liberty by way of declaratory relief pursuant to the court’s inherent jurisdiction.
  • Although the local authority brought the application, it did not assert a position one way or another in respect of whether the placement constituted a deprivation of liberty. The local authority sought for the court to find that the placement was necessary and proportionate.
  • The social worker identified, and the Court considered, a number of identified restrictions imposed on HC at the placement: restriction on freedom of movement, supervision, support and control, imposition of routine, restricted access to social media and the internet, restricted access to money, physical restraint and medical restrictions.
  • The learned judge had considered the issue of the right to liberty and security under Article 5 of the ECHR and Article 37 of the United Nations Convention on the Rights of the Child. The judge referred to the recent case of Re RD (Deprivation or Restriction of Liberty) [2018] EWFC 47. The judge also considered the three criteria in the case of Storck v Germany (Application No 61603/00) (2005) 43 EHRR 96:

i)  The objective element of a person's confinement to a certain limited place for a not negligible length of time;

ii)  A lack of valid subjective consent to the confinement in question;

iii)  Confinement imputable to the state

  • Only criterion (i) was in dispute. The learned judge stated that the so-called “acid test” was whether a person was:
  1. Under continuous supervision and control and
  2. Not free to leave  
  • The learned judge referred to the case of Re A-F (Children) (Care Proceedings: Deprivation of Liberty) [2018] EWHC 138 (Fam), where Sir James Munby P examined both criteria of the “acid test” with reference to the child’s age.
  • The learned judge had considered what restrictions HC had in the residential unit compared to other teenagers living at home. The judge concluded that a child that age would be subject to a number of restrictions, however one would have expected freedom in a number of areas to be increasing. Compared to a teenager living at home with his family, the restrictions experienced by HC, including 1:1 ‘eyes on’ staffing when he is awake, mean that he is under constant supervision and control.
  • The learned judge concluded that the placement did constitute a deprivation of liberty and authorised the deprivation of liberty, concluding that there was no less restrictive way in which HC’s safety could be maintained and welfare promoted. 


Article 15 transfer case raising novel point of law as the care proceedings had already been transferred from the Republic of Ireland

Re S [2018] EWHC 3054

14th November 2018

  • The Applicant is the mother (‘M’) of a 13 month old child (‘S’) subject of care proceedings in England and Wales (‘E&W’).
  • M applied for transfer of proceedings to the jurisdiction of the Republic of Ireland (ROI) under Article 15 of Brussels IIA revised (‘BIIA’).
  • The background is as follows:
  • M and the father (‘F’) of S were born and had lived almost all their lives in England;
  • Care and Placement Orders were granted in respect of their first child in 2014;
  • When M fell pregnant with S, M and F moved to live in the ROI;
  • When S was born on 11.09.17, the Child and Family Agency (‘CFA’) commenced proceedings, removing S into foster care in ROI;
  • 08.01.18 the District Court granted an application to transfer the case from ROI to E&W;
  • The transfer was accepted in E&W, and proceedings progressed toward a Final Hearing scheduled in January 2019;
  • Relevant reports and assessments were initiated;
  • In the meantime M became pregnant, and expects her third child (‘X’) in November 2018;
  • It is likely that the CFA in ROI will commence proceedings in respect of X once born;
  • The CFA have indicated that they will not request a transfer of the proceedings regarding X to E&W.
  • F supports M’s application. The Local Authority, Guardian, and CFA all oppose the application.
  • The case came before Mr. D. R. L. Garrido QC sitting as a Deputy High Court Judge.
  • Before considering the conditions for transfer under Article 15, the Judge dealt with a novel point of law.
  • The question was whether recital 13 contained within Article 15 BIIA precluded the Judge from transferring the case back to ROI.
  • The Judge noted a complete lack of authority to steer his determination on this issue.
  • The Judge held that although the case could not be transferred to a new court, it could be transferred back to the court first seised:

“In my judgment, the meaning of a” third  court” in recital 13 can only sensibly be “a court of a third Member State” and does not therefore preclude transfer back to the court first seised”.

  • The Judge moved on to consider the three conditions; particular connection, better placed, and best interests.
  • Although the Judge found some force in the arguments advanced by the parents of S, he found that ROI were not better placed, and it would not be in S’s best interests to transfer.
  • Dismissing M’s application, the Judge held that “not only is ROI not better placed to assume jurisdiction, but it is also not in S’s best interest to transfer jurisdiction’.


Sir James Munby makes declaration of parentage and PR order

Human Fertilisation and Embryology Act 2008 (Case AM), Re [2018] EWHC 3178 (Fam)

28th November 2018

  • The Applicant (‘X’) sought a declaration of parentage (s.55 Family Law Act 1996) in respect of twin children, C1 and C2, and Parental Responsibility Orders in accordance with section 4 Children Act 1989.
  • This was the latest in a long line of cases in the wake of Cobb J’s judgment in AB v CD and the Z fertility clinic [2013] EWHC 1418 which led to an audit by HFEA revealing 51 of 109 licensed clinics had anomalies in their records. This meant that many partners of women who had treatment did not meet the prerequisites to acquire parenthood.
  • 39 cases, thus far, have come before Sir James Munby following his determination in Re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam), in which he clarified the prerequisites for a declaration of parentage:
  1. Consent must be given in writing before treatment, both by the woman and her partner. The forms required for this in accordance with directions given by the HFEA are form WP, to be completed by the woman, and form PP, to be completed by her partner; and
  2. The woman and her partner must be given adequate information and counselling.
  • In this case, X’s partner, Y, had treatment at the South East Fertility Clinic. Y completed form WP; X completed form PP but mistakenly did not sign the declaration after section 5 of the document. X did, however, sign page 2 of the document.
  • The following facts were found:
  1. The treatment that led to the birth of the children, C1 and C2, was embarked upon and carried through jointly, and with full knowledge of the woman (that is, Y) and her partner X;
  2. From the outset of that treatment, it was the intention of both X and Y that X would be a legal parent of C1 and C2. Each was aware that this was a matter which, legally, required the signing by each of them of consent forms. Each of them believed they had signed the correct forms as legally required, and, more generally, had done whatever was needed to ensure that they would both be parents;
  3. From the moment that the pregnancy was confirmed, both X and Y believed that X was the other parent of the children. That remained their belief when C1 and C2 were born;
  4. The first they knew that anything was or might be ‘wrong’ was when they were contacted by the clinic.
  • Counsel for X argued that section 5 of the PP form was not linked to the issue of consent to parenthood, and therefore it made no material difference.
  • Sir James Munby was persuaded by this argument and stated of section 5 of the PP form:??? “It relates to other elements in the process, so that its presence or absence, completion or, as here, non-completion is for the present purposes neither here nor there”.