Public law children case update: March 2025

March 18, 2025

Caitlin Smithey rounds up the latest public law children cases of interest to practitioners.

T (Children) (Risk Assessment), Re, 2025 WL 00419848 (2025)

Factual background

This was an appeal of a judgment given by Her Honour Judge Tyle to the Court of Appeal and was heard by LJ Moylan, LJ Peter Jackson and LJ Males.

The appeal was brought by the parents seeking the return of their three children: A1 (11), A2 (9) and A3 (16 months).

The children came to the attention of the Local Authority in June 2015 when A2, aged 15 weeks, was taken to the GP by the mother due to a swelling to his head. The cause was revealed to be a linear skull fracture with overlying haematoma. The Local Authority subsequently issued care proceedings.

At the fact-finding hearing, the District Judge found that the injury was caused by the mother. After the hearing, the parents stated that they had separated. A1 and A2 returned to live with their father under a supervision order and child arrangements order. They had monthly contact with their mother supervised by a child arrangements order.

Despite the parents telling the Court they had separated, in March 2023 after having moved to a different Local Authority area, A3 was born. The two oldest children had been living with their maternal grandmother for 4 years in Africa until this point. In September 2023 they returned to England and were living with their mother.

Once the new Local Authority became aware of the family’s records, interim care orders were made, and the three children were placed in foster care.

At the final hearing, the first instance Judge approved a care plan for A1 and A2 of long-term foster care and a 6-month limited search for adoption for A3, with a fall back plan of the same placement as his brothers. The Judge considered that whilst many factors were positive for the parents such as family time contact, ability to meet the children’s needs and engagement with assessments, the risks of physical harm and neglect were considered too high.

The appeal

The appeal was brought by the parents on the basis that the Judge’s reasoning had several fatal problems:

The type and degree of risk to which each child would be exposed.
The judge did not consider questions of risk management.
No link was made between threshold findings and the children’s welfare.
The welfare checklists under Children’s Act 1989 or Adoption and Children Act 2002 (for A3) were not addressed.

Legal principles

The separation of a child from a family can only be approved by a process of rigorous reasoning. The fact that the underlying principles are well known to specialist judges does not relieve the duty to the family and to society to explain and justify its decision.

Re L-G (Children: Risk Assessment) [2025] EWCA Civ 60[2025] EWCA Civ 60 gives guidance that the risk of harm is only one of a number of factors to be assessed under the welfare checklist.

The Children’s Act 1989 creates a framework within which the court assesses whether a child has suffered or is likely to suffer significant harm.

What type of harm has arisen and might arise?
How likely is it to arise?
What would be the consequences for the child if it did?
To what extent might the risks be reduced or managed?
What other welfare considerations have to be taken into account?
In consequence, which of the realistic plans best promotes the child’s welfare?
If the preferred plan involves interference with the Article 8 rights of the child or of others, is that necessary and proportionate?

A structured analysis using these factors is off benefit both to makers and recipients of decisions and ensures that factors are not missed or given undue weight.

The decision

The appeal was allowed, and the care orders and placement order were set aside on the basis that there was no effective risk assessment and thus no proper welfare evaluation or consideration of proportionality.

The case was remitted to the Designated Family Judge and the following comments were given by the Court of Appeal in relation to the further handling of the case:

Apart from the injury in 2015, all other welfare factors favoured placement of the children with their parents
The case on non-physical harm was ‘weak at best’
The Court had the opportunity to assess what had actually happened, due to the lapse of time, to a child that had been in care and to the children that had not
The removal of A1 and A2 was not illegal
The risk of physical harm being considered ‘exceedingly high risk’ given that they are substantially older than A2 was when he was injured is ‘questionable’.
A3 is older now than A2 was when injured and has passed through the likely period of maximum risk in his mother’s care.
The considerable disadvantages of the children’s experience in foster care.

On that basis, the Court would have otherwise favoured returning the children to the parents’ care without the need for a rehearing. The court did however remit the case for further determination for A3.

FULL JUDGMENT

Re CB (Financial Remedies: Antisuit injunction)

The applicant father (VC) applied for an ‘anti-suit’ injunction to prevent the respondent mother (DB) from ‘pursuing, participating or otherwise continuing any applications for periodical payments for the children of the family’ (second and third respondents) or any other kinds of applications relating to their marriage in the court of India.

All three respondents resisted the application. The three issues before the Court were:

The Court’s jurisdiction
The first respondent (DB) conduct in pursuing litigation in India and the overall conduct of the parties and
Whether the Court should exercise its discretion, in light of all the circumstances, to grant an injunction.

Factual background

All parties are of Indian Heritage. VC is a British National and DB is an Indian national who has indefinite leave to remain in the UK. Their two children are X (17) and Y (7). DB, X and Y live in England and the children attend privately funded schools. VC and DB married in 2006 and separated in 2020.

Following their separation, all parties travelled to India in 2020 where their extended family attempted to assist them to reconcile. These attempts were unsuccessful and resulted in litigation in the Courts of India and criminal investigations. The list of litigation includes proceedings by DB against VC under the Dowry Prohibition Act in India and child maintenance claims by DB against VC.

In 2022, VC petitioned for divorce in England and Wales. VC’s application for financial relief is ongoing.

DB, X and Y returned to England in September 2021 and VC in January 2022. The children continue their private education in England. VC has maintained the mortgage of the matrimonial home where DB and the children live. DB does not make periodical payments.

The Judge added the children as respondents to the proceedings on the basis that the children’s rights within the ongoing parental conflict require protection and independent advice.

The law

Anti-suit injunctions are equitable remedies. The legal authority to grant such an injunction is Section 37 of the Senior Courts Act 1981 which gives the Court a wide discretion to grant an interlocutory or final injunction where it is just and convenient to do so.

The principles governing an anti-suit injunction are summarised in Deutsche Bank AG v. Highland Crusader Offshore Partners LP [2010] 1 WLR 1023 as:

English Courts may restrain a defendant from instituting or continuing proceedings in a foreign Court, where it has personal jurisdiction over them, ‘where it is necessary and in the interests of justice to do so’.
Whilst it is too narrow to say that such an injunction will only be granted in the grounds of vexation or oppression, where a matter is justiciable in England and a foreign Court, generally the applicant must show that proceedings before the foreign court would be vexatious or oppressive.
There is no comprehensive definition of vexatious or oppressive, but it is generally necessary to show that:
- England is clearly the most appropriate forum;
- Justice requires that the claimant in the foreign court should be restrained from proceeding there.
Even if England is considered to be the most natural forum and the Court ‘can see no legitimate personal or juridical advantage in the claimant in the foreign court being allowed to proceed them’, this does not automatically mean that an anti-suit injunction should be granted. This would overlook considerations of comity.
Anti-suit injunctions require caution as they involve an interference with a foreign court process. The stronger the connection with the foreign court by the parties and subject matter, the stronger the argument is against such an injunction.
The prosecution of parallel proceedings, whilst undesirable, is not necessarily vexatious or oppressive.

E v E (Anti-suit injunction: children) [2021] EWHC 956 (Fam) highlights further relevant principles:

In relation to personal jurisdiction, the Court will be considered to have personal jurisdiction over the Respondent where it has ‘jurisdiction over the substance of a dispute to which the respondent is a party’. Masri v CCIC (No 3) [2009] 2 W 669.
Furthermore, “the English forum should have a sufficient interest in, or connection with, the matter in question to justify the direct interference with the foreign court which an anti-suit injunction entails”; Airbus Industrie GIE v Patel [1999] 1 AC 119.
‘There must be an appropriate ground for obtaining relief’. This requires the applicant to demonstrate unconscionable conduct of some form by the Respondent. Will normally be considered in light of contractual conditions however where there it is a non-contractual application (Hemain Injunctions), the applicant is required to demonstrate that bringing or continuing foreign proceedings is unconscionable.
If all the above are satisfied, the Court will then exercise its discretion as to whether or not to grant such an injunction.

“In so doing the court will have regard to all the circumstances which include the facts upon which the application is based, the connections with each jurisdiction, the nature of the substantive proceedings both in this jurisdiction and in the foreign jurisdiction, the principles of judicial comity, the circumstance in which the foreign proceedings are brought, the balance of prejudice to each party depending upon whether the injunctive relief is or is not granted, and any other relevant matters. In the case of children, the exercise would surely also consider their welfare.”

Therefore, the Court can no longer grant an anti-suit injunction purely on the basis that ‘England is the forum and conveniens’.

Habitual residence of the parties became a substantial feature in these proceedings. This is considered in Wai Foon Tan v Weng Kean Choy [2014] EWCA Civ 251 to be ‘the place where a person has established on a fixed basis the permanent or habitual centre of his interest, with all the relevant factors being taken into account.” and “… one cannot habitually reside in two places at once.’

Analysis

The court’s approach is dictated by which of two broad categories applications of these kind will fall into:

Single forum – contractual arrangement cases. Associated with ‘unconscionable conduct’
Alternative forum – where there is no agreement to jurisdiction. Associated with ‘vexatious or oppressive conduct’.
This was a case that falls into the ‘alternative forum’ category.

No party sought to argue that the Court did not have personal jurisdiction over the defendants.

The Court considered the evidence in relation to the parties’ habitual residence and found that at all material times, DB and the children have been habitually resident in England. Despite significant periods abroad, VC was also found to be habitually resident in the UK. The parties’ habitual residence in England had two consequences:

At the time of DB’s application to the Indian Courts for child maintenance, England and Wales had continuing jurisdiction over the respondents.
The Child Maintenance Service had jurisdiction over issues of child maintenance.

Findings

On the basis of the children’s education in England, the parties’ main source of income being derived from the UK and the main asset (matrimonial home) being in England, that the courts of England and Wales were the natural forum for the parties’ dispute to be heard.

In relation to conduct, on the basis that DB’s applications were made in India at a time when the parties were staying in India and there were no proceedings in England and all the circumstances of the case, DB’s litigation in India was not considered vexatious or oppressive.

Consideration of the Court’s discretion was therefore not necessary however even if required, the facts of the case did not support the conclusion that it would have been just and convenient to grant the injunction.

VC’s application for an anti-suit injunction was therefore dismissed.

FULL JUDGMENT

Re Z (Unlawful Foreign Surrogacy: Adoption) [2025] EWHC 339 (Fam)

Factual background

This public judgment was handed down as a warning by Sir Andrew McFarlane to those who follow the path taken by the applicants of pursuing an unlawful, commercial, foreign surrogacy arrangement.

Ms X and Ms Y are a same-sex couple who sought to have children via a surrogate.

The two children that were the subject of the application were genetic full siblings born to two Ukrainian surrogate women in a surrogacy clinic which they understood to be in Southern Cyprus. Only once agreements had been advanced was it discovered that the clinic actually operated in Northern Cyprus where surrogacy is unlawful and the placement of children with same-sex couples is not permitted by law.

The applicants paid a sum of around £120,000 for the creation of these two children.

Due to difficulties upon birth, it became clear that the fact the children had been born in Northern Cyprus did not afford them citizenship and the fact that they had been born to Ukrainian women whilst in Cyprus, meant they were also not entitled to Ukrainian citizenship. Further, they had no legal connection to either of the applicants that was sufficient for status in the UK.

The Home Office refused to allow the two children to enter the UK with Ms X and Ms Y.

A successful application was eventually made under Article 8 of the European Convention on Human Rights at the First-Tier Tribunal.

Legal principles

Ms X and Ms Y could not apply for a parental order following surrogacy under section 54(8) of the Human Fertilisation and Embryology Act 2008 for two reasons. Firstly, they were not genetically related to the children. Secondly, because any payment in a surrogacy arrangement is required to be authorised by the Court.

On this basis the only option for the applicants to become the children’s parents in law was to adopt them.

An adoption order requires under Section 52 of the Adoption and Children Act 2002 that either the natural parents consent or that each child’s welfare requires such consent to be dispensed with.

Attention was drawn to the guidance provided in the case of Re Z (Foreign Surrogacy) [2024] EWFC 304 where Their J set out a list of ‘key issues’ that should be considered by any person contemplating a surrogacy arrangement:

‘(1) What is the relevant legal framework in the country where the surrogacy arrangement is due to take place and where the child is to be born? Put simply, is such an arrangement permitted in that country?

(2) When the child is born will the intended parents be recognised as parents in that country, if so how? By operation of law or are the intended parents required to take some positive step and, if so, what steps need to be taken and when (pre or post birth)?

(3) What is the surrogate’s legal status regarding the child at birth?

(4) If the surrogate is married at the time of the embryo transfer and/or the child’s birth what is the surrogate’s spouse’s legal status regarding the child at birth?

(5) If an agency is involved, what role do they play in matching the surrogate with the intended parents?

(6) What information, preparation or support has the surrogate had about any proposed surrogacy arrangement?

(7) Does the surrogate speak and/or read English? If not, what arrangements are in place to enable her to understand any agreement signed?

(8) Will the intended parents and the surrogate meet and/or have contact before deciding whether to proceed with a surrogacy arrangement?

(9) When will the agreement between the intended parents and surrogate be made, before or after the embryo transfer, and what are the reasons for it being at that time?

(10) What arrangements are proposed for contact between the intended parents and the surrogate during the pregnancy and/or after the birth? For example, is it only via the agency or can there be direct contact between the intended parents and the surrogate.

(11)Which jurisdiction will the embryo transfer take place and which jurisdiction will the surrogate live in during any pregnancy?

(12) Can the jurisdiction where the child is to be born be changed at any stage and, if so, by whom and in what circumstances?

(13)What nationality will the child have at birth?

(14)Following the birth of the child what steps need to be taken for the child to travel to the United Kingdom, what steps need to be taken to secure any necessary travel documentation for the child and how long does that take?

(15) Will the intended parents need to take any separate immigration advice to secure the child’s travel to the United Kingdom and what is the child’s status once the child has arrived in this jurisdiction.

(16) Finally, keeping a clear and chronological account of events and relevant documents is not only important for the purposes of a parental order application but also, importantly, retains key information regarding the child’s background and identity

Findings

The following factors were persuasive to the Court in their final decision:

Other than the Applicants, there was nobody in the world that could be considered to be a potential holder of parental responsibility.
The Children remained stateless. Whilst they had permission to enter the UK, they did not have passports. On this ground adoption would be a very clear benefit to the children.
The Local Authority completed an adoption assessment which endorsed the plan of adoption.

On the basis that the surrogate mothers were untraceable, it was found that the children’s welfare required birth parents’ natural consent to be dispensed with.

Section 1 of the Adoption and Children Act 2002 requires the Court to have regard to the child’s welfare throughout his life. The Court expressed its concern regarding the fact that the parents would be in their 80s by the time these children are in their teens.

However, in consideration of all the circumstances of the case, adoption orders were granted in respect of both children.

FULL JUDGMENT

A v Adopt London North & Ors [2024] EWFC 373

Factual Background

This High Court (Family Division) case concerned adoption applications made by the maternal aunt, A, in respect of three children B and C, who are 16 years old, and D who is 14 years old.

The children were born in Country X where they lived with their mother until she died in a car accident in 2012. Their father has had no role in their lives and had been abusive towards the mother. The court had previously determined that the father should not be served with notice of these proceedings.

Following their mother’s death, the children moved to live with maternal aunt, A, and their maternal grandmother, G. A was forced to leave Country X in 2017 when she was captured, detained and tortured for around a year due to her political activities. A came to the United Kingdom in 2018 as a political refugee. Whilst A was imprisoned, the children were forced to flee the home with their grandmother and became homeless.

The family was reunited with the assistance of the Red Cross in 2019, and the children were moved to the United Kingdom on the basis of formal applications by A to the Home Office in early 2021.

Each of the children had suffered profound trauma:

B has significant health needs as he has been diagnosed with Kernicticterus and has four limb motor disorder with oral and peripheral limb involuntary movements.
C was subject to sexual abuse in Country X which has impacted on her emotional and psychological state and requires therapeutic support.
D has scarring on her body caused by her father throwing hot oil at her mother which caused D third degree burns. This damage caused movement difficulties and D was also subject to an attempted sexual abuse in Country X.

Proceedings arose out of an application by a Hospital Trust in relation to undertaking diagnostic tests and offer treatment to B. Despite there being no dispute between A and the Trust, the Trust sought the court’s permission due to no one in the United Kingdom having parental responsibility for B.

The court had ordered that B lives with A, meaning that she had parental responsibility for B.

A subsequently applied for Child Arrangements Orders for all the children and sought leave to apply for an adoption order, as the children had not been living with her for three years as required by the Adoption and Children Act 2002. The court granted leave to A and she thereafter made the application, which was supported by the Local Authority and the Children’s Guardian.

The matter could not conclude at the anticipated final hearing on 6 October 2023 due to the Local Authority not undertaking an assessment of the family’s adoption support needs. Multiple assessments were subsequently filed and the last assessment allowed for ongoing payments which was agreed between all parties and the Court.

Legal framework

The court applied the relevant legal framework as follows:

Sections 42(5) and (6) of the Adoption and Children Act 2002 which allowed A to make an adoption application with the Court’s leave despite them not having lived with A for three years.

Section 47(2) of the Adoption and Children Act 2002 which allowed for the birth father’s consent to be dispensed with on the basis that the children’s welfare requires it.

Section 3(1) of the Adoption and Children Act 2002:

(1) Each local authority must continue to maintain within their area a service designed to meet the needs, in relation to adoption, of—

(a) children who may be adopted, their parents and guardians,

(b) persons wishing to adopt a child, and

(c) adopted persons, their parents, natural parents and former guardians;

and for that purpose must provide the requisite facilities.

Section 3(3):

(3) As part of the service, the arrangements made for the purposes of subsection (2)(b)—

(a) must extend to the provision of adoption support services to persons who are within a description prescribed by regulations,

(b) may extend to the provision of those services to other persons.

The court had ordered that B lives with A, meaning that she had parental responsibility for B.

Judgment

The Court found that part of the concerning twelve-month delay was the ‘the fundamental misunderstanding by the local authority of the relevant legal framework that governed the assessments for such support’. This delay was contrary to the welfare needs of the vulnerable children.

However, having considered the evidence and strong family relationship, the court considered that the needs of these children could only be met by adoption orders and so adoption orders were made in respect of all three children in favour of maternal aunt, A.

FULL JUDGMENT

Re T (Appeal: Findings of Fact) [2024] EWHC 3327 (Fam)

Factual background

This appeal was in respect of private family proceedings in relation to T, a boy aged five. The appellant is T’s mother and the respondent is T’s father.

The mother challenged a number of findings of fact made following a three-day hearing which was conducted in the context of the father’s application. The mother had sought findings that:

The father regularly struck T with his slider (slipped with hard sole)
The father raped the mother in 2018

The first instance court had found that:

The smacking with the slider did not amount to physical abuse
Sexual abuse of mother by father was not proven

The grounds of appeal were premised on the basis that the findings of fact were contaminated as criminal law concepts had been used in this family case. The grounds considered in this appeal were:

Ground 1: That the court erred in law by failing to follow the principle set out in Re R (Children)(Care Proceedings: Fact Finding Hearing) [2018] EWCA Civ 198 in that the criminal law concepts (in this case the defence of reasonable chastisement) are not of relevance or function in a fact-finding in the family court.

Ground 1A: The function of the learned recorder should have been to find the facts of the father’s behaviour so these can feed into welfare analysis.

Ground 3: The Court was wrong to consider the mother’s failure to prove her allegation of rape by the father was damaging to her credibility ‘when the court had not found those allegations to be false’.

Ground 4: The Court had erred both in fact and law when it refused to accept that the mother did not realise she had been ‘raped’ until discussing the event with professionals

The judge based his finding that the mother would have known she did not consent and therefore been raped on his own opinion.
The Judge premised his finding that a rape victim will have known that she did not consent on the fact that an individual would understand consent in principle and practice.

Legal framework

The key principles for considering the interplay of family law and criminal law are set out by McFarlane LJ in Re R (Children) (Care Proceedings: Fact-Finding Hearing) EWCA Civ 198; [2018] [2018] 1 WLR 1821:

[64] “The focus and purpose of a fact-finding investigation in the context of a case concerning the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a criminal court. The latter is concerned with the culpability and, if guilty, punishment for a specific criminal offence, whereas the former involves the determination facts, across a wide canvas, relating to past events in order to evaluate which of a range of options for the future care of a child best meets the requirements of his or her welfare…
…In family proceedings, the outcome of a fact-finding hearing will normally be a narrative account of what the court has determined (on the balance of probabilities) has happened in the lives of a number of people and, often, over a significant period of time. The primary purpose of the family process is to determine, as best that may be done, what has gone on in the past
[65] “… criminal law concepts, such as the elements needed to establish guilt of a particular crime or a defence, have neither relevance nor function within a process of fact-finding in the Family Court.

In relation to accusations of rape in family proceedings, given that the court is not concerned with culpability and determination of guilty or not-guilty, it was held in Re H-N and others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448 that:

[71] …Behaviour which falls short of establishing ‘rape’, for example, may nevertheless be profoundly abusive and should certainly not be ignored or met with a finding akin to ‘not guilty’ in the family context.

The defence of reasonable chastisement was considered by the first instance judge in relation to the accusation of smacking by the father.

Section 59 of the Children Act 2004:

(1) In relation to any offence specified in subsection (2), battery of a child taking place in England cannot be justified on the ground that it constituted reasonable punishment.

(2) The offences referred to in subsection (1) are—

(a) an offence under section 18 or 20 of the Offences against the Person Act 1861 (c. 100) (wounding and causing grievous bodily harm);

(b) an offence under section 47 of that Act (assault occasioning actual bodily harm);

(c) an offence undersection 1 of the Children and Young Persons Act 1933 (c. 12) (cruelty to persons under 16).

(d) an offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation)

Whilst this section provides a defence to such an accusation in criminal proceedings, it is not relevant to a consideration and determination of the facts in a family finding of fact hearing.

Judgment

In relation to the issue of smacking it was held that the factual findings that the father had physically struck T with a slider on several occasions with his slider remain. However, once the Judge had ‘considered and determined the fact’, the function of a family judge in this context was fulfilled. Consideration of the father’s culpability in light of section 58 of the Children Act 2004 was erroneous as it focused on the principles of criminal law which per Re R, is inappropriate in a family law case.

In relation to the allegation of rape, it was held that the first instance Judge had failed to consider the importance of the corroborative evidence that suggested at the time of the alleged rape, the mother had said ‘no’. Not only should this evidence have suggested there as a ‘very real possibility’ that the mother was not consenting to the sexual intercourse with the father, but it should have been considered in light of the fact that what the father allegedly did was ‘both violent and abusive’, regardless of whether it satisfied the criminal standard of establishing rape. The focus for the family court was how the parties had acted towards one another in order to provide a context to making decisions on T’s welfare, rather than establishing whether a crime took place.

Furthermore, given that the law operates on a binary system (Re B [2008] UKHL 25 at [2]), the fact that the allegation of rape could not be proved was not probative of the mother being dishonest in her allegation.

The appeal was allowed. The finding that the father had struck T with a slider was upheld but the defence of reasonable chastisement was removed from the finding. The first instance judge’s finding regarding the alleged rape of the mother was set aside as not one part of it was ‘salvageable’.

FULL JUDGMENT

Caitlin Smithey is a 2025 pupil barrister at Spire Barristers.