Category Archives: rants

Can a judge make orders about a child who isn’t a subject of the proceedings?

Nope, say the Court of Appeal in a really interesting judgment delivered this week, in which my super colleague Olivia Pike argued and won the appeal. See E (Section 37 Direction, The Children Act 1989), [2025] EWCA Civ 470.

I’m glad this has been cleared up because we all know that every so often a judge makes an order under s37 about a child that isn’t the subject of the proceedings. Not that often, but often enough. The only wonder is that it hasn’t been appealed and clarified before now.

The wording of s37 is undoubtedly tempting for a judge with a legitimate concern about a child she has become aware of that is connected to the family that is before the court, but not actually a part of the case. A provision that appears to apply to ‘any child’ is an alluring solution to this problem.

To my knowledge these orders are made from time to time, and the scenario in the appeal isn’t an outlier – the court is often provided with information about other children in a household, who visit the home, or who are in connected households – whether as part of assessment or threshold evidence or otherwise.

I can think of a handful of times where I have encountered judges using s37 in a similar situation (more typically about an older, half or step-sibling or an unrelated child in the same household. I can think of one instance of a judge making an ICO at the same time as the direction, but in others only a direction for a report was made – on one occasion not so long ago a skeptical judge was persuaded to make such a direction based on arguments made by me on behalf of a very concerned guardian – sorry, judge. You were right, I was wrong!). I know that many lawyers and judges have – until now – thought that was permissible. And one can understand why they would reach for this when information crosses their desk that suggests a child is at risk and that there is no safeguarding in place.

From the judgment there were significant procedural fairness issues in the way the judge went about imposing the orders (neither the children concerned nor their parents were aware or represented, and no urgent return date hearing was listed), but leaving those procedural issues aside, the Guardian’s invitation was a reasonable one, and the judges’ response was a reasonable step in response – what else was he to do? Reasonable on a human level, but importantly wrong in law.

The boiled down explanation of why ‘any child’ doesn’t really mean ‘any child’ is that there has to be not only ‘a child’ but also a ‘question’ that arises ‘with respect to the welfare’ of that child. And that means a question that is up for grabs in the case, not a question that pops into the judge’s mind, incidentally – no matter how justified. The judgment is interesting for its an analysis of the FPR, as an aide to interpretation of the statute (yes, that’s a thing) and for it’s reminder that the Children Act has a range of built in safeguards against unwarranted intrusion by the state into the lives of families, and that it draws clear lines of responsibility between the court and the local authority. s37 is an exception to the general rule that public law orders are only to be made on the instigation of a LA, and s37 had to be interpreted narrowly – a s37 order and ISO without notice to the parents of the child concerned entirely bypassed the intended safeguards and cut across the scheme.

The Guardian was right, says the Court of Appeal, to raise her concerns – and the judge was understandably concerned too. But s37 was not available, and nor was the ISO that was made off the back of that direction.

The Court of Appeal suggested that the judge might have directed disclosure of information from the proceedings to the social work team responsible for the other children, but in any event, a guardian who is concerned that a local authority is missing something in respect of a connected non-subject child can make a referral under s47 Children Act 1989 – and needs no permission or direction from the court to do so, by virtue of FPR 12.73(1)(a)(viii) i.e. ‘to a professional acting in furtherance of the protection of children’. Had the judge made an order to that effect though, it might have prompted some liaison and emphasised the court’s concern.

Necessity is the mother of intermediaries

Judgment was handed down this morning in Re M (A Child: Intermediaries) [2025] EWCA Civ 440. I had a small non-speaking part (for the FLBA).

The judgment is a delightfully streamlined read and brings some welcome clarity to the approach on the appointment of intermediaries.

As my – frankly fabulous – post title suggests, necessity is the test, baby. Nothing else will do: Not compelling. Not rare. Not exceptional. Just plain old necessary.

Lord Justice Peter Jackson had this to say about the various high court authorities from which these high bar tests have emerged (before going on to politely demolish them):

In the three appeals about intermediaries that it has heard since Part 3A came into effect, this court has taken its provisions at face value.  Considering that the regulatory framework is recent, it is unpromising ground for a wider exercise in judicial interpretation.

So, the various High Court authorities suggesting necessity plus in various flavours can be put to one side, and the President’s very recent guidance must also bow to this binding appellate authority (but only the few paragraphs which run contrary to the judgment).

There is in any event no warrant for overlaying the test of necessity with concepts of rarity or exceptionality.  Frequency is not a test, and nor is exceptionality.  Similarly, the introduction of tests of “compelling reasons”, or of adjournments for lack of an intermediary being “unusual” or “very unusual”, beckon the court to short-circuit its consideration of the evidence in the individual case.  … These projections, including references to “very rare” or “rare” cases, are not a substitute for a straightforward application of the rules.

Be warned though, the CoA did say that the impression apparently held by senior judges that intermediaries were being sought too often is not something to be scoffed away, and should be treated with respect. So whilst necessary doesn’t mean exceptional it also doesn’t mean helpful.

Any perception on the part of the senior family judges that intermediaries are being appointed too freely must be treated seriously.  But as a matter of law the solution lies in the effective application of the necessity test found in the FPR, a test that the court has routinely applied to the appointment of experts in family proceedings since 2014.

We should follow the FPR. Who’d-a-thunk it?

Advocates are expected to have sufficient skill to differentiate their questioning style and client care, but there is a limit – the judgment acknowledges that we only have one pair of eyes, and one pair of hands, have quite a lot else on our plate and are NOT intermediaries:

The court is entitled to expect specialist family lawyers to have a good level of understanding of the needs of vulnerable individuals in proceedings and an ability to adapt their communication style.  It will consider what can reasonably be expected of the advocates, and in particular of the vulnerable party’s advocate in the individual case, bearing in mind that professional continuity may not be guaranteed.  Intermediaries should clearly not be appointed on a ‘just in case’ basis, or because it might make life easier for the court, but equally advocates should not be required to stray beyond their reasonable professional competence to make up for the absence of an intermediary where one is necessary.

The judgment confirms that intermediaries may be appointed to assist in conferences away from court, for instance to prepare a witness statement – but just because a party needs an intermediary in the pressured environment of court does not necessarily mean they will need an intermediary at conferences elsewhere. The two should be considered separately.

The judgment also confirms that the contributions of the parties’ legal representatives on their vulnerable person’s needs are a legitimate part of the mix:

The court is also entitled to take account of the parties’ submissions, to whatever extent it considers appropriate.  Advocates are expected to have the skill to identify and adapt to vulnerability, and their submissions on the measures needed to ensure a fair trial form part of the information on which the court can act.  The advocate representing a vulnerable person or seeking to call them as a witness may be well placed to assist the court from their own interactions with the vulnerable person, but it would be inappropriate to require evidence from them in the form of a witness statement.  As the process is a collaborative one – PD3AA paragraphs 1.4 and 3.1– the court may also benefit from submissions made by other parties, who may also have their own interest in the decision.  The local authority and Children’s Guardian will wish to ensure that the proceedings rest on firm foundations and, depending on the case, individual parties may have their own perspectives.

Two further points:

  • The intermediary conducting the assessment should be sent any cognitive assessment. This doesn’t seem to happen routinely but the Court of Appeal have said that the intermediary should have that information (for obvious reasons).
  • One of the errors made by the judge in the case appealed was that he did not properly consider what alternatives could and would be put in place to obviate the need for an intermediary. Had he done so the necessity for an intermediary would have been apparent (hello, Holistic evaluation has entered the chat). The checklist of factors in r3A.7 are an invaluable aide to a sound decision.

 

Bristol Cable Podcast

The Bristol Cable Podcast interviewed some local girl about transparency recently. No idea who she is, but have a listen if you fancy.

Listen: Bristol Unpacked with barrister Lucy Reed, on opening the secretive family courts to scrutiny

Also recommended is BBC Radio 4 short 10 part series ‘You do not have to say anything’ featuring criminal defence barrister and sausage dog owner Joanna Hardy Susskind, and some other stars of the criminal bar that you will want to hear from (I won’t spoil it for you). Really good explanation of how it works (and doesn’t). Listen here.

 

Lots more has been happening this week –

New Guidance on judges writing letters to children (a big thumbs up on that), a reminder that we shouldn’t be ‘citing’ cases that aren’t citable (generally decisions of Circuit Judges and below aren’t citable, just interesting!), and covert recording guidance… oh no, wait. Not that last one….