Family law case update: January 2025

Caitlin Smithey summarises the latest public law family cases of interest to practitioners.

Re SB [2024] EWHC 2964 (Fam)

Factual background

This was a case in the High Court of Justice Family Division in a matter relating to the inherent jurisdiction The case concerned a 15-year-old girl (SB). Care proceedings had been brought by the Local Authority and two days later, the Local Authority applied for a deprivation of liberty (DoL) order due to the extremely challenging behaviour that SB was exhibiting, which often involved weapons or assault on the police and professionals.

SB was eventually placed in a General Adolescent Unit (GAU) subject to a DoL. The fourth respondent health board was responsible for her care during her admission to the GAU. SB has been subject to 6 assessments in the past four months as to whether she met the statutory conditions to be admitted to a psychiatric unit (‘sectioned’) under section 3 of the Mental Health Act 1983. All of the assessment concluded that that she was not detainable and that it would not be in her best interests to be detained in hospital.

As part of the care proceedings, the Local Authority instructed an independent consultant psychiatrist to prepare a report. The conclusions of this psychiatrist were that having considered the possible options, an outcome under the Mental Health Act was the best option and that SB satisfied the section 3 criteria.

Legal Principles

An issue arose between the Local Authority and health board as to which statutory body was responsible for the care and treatment of SB and under what legal framework she should/could be detained. As such, the Local Authority sought declarations and ancillary orders at the High Court on the basis that because SB was detainable under the Mental Health Act 1983, the court did not have jurisdiction to grant a DoL under the inherent jurisdiction.

The health board opposed the local authority on the following grounds:

1. The court did not have jurisdiction to determine whether SB was detainable in a hospital under the MHA 1983.
2. The court had no jurisdiction to exercise a reviewing or supervisory role of the decisions made by clinicians under the MHA 1983.
3. That the court making a finding as to whether SB was detainable under the MHA 1983 put pressure on the health board to change its position or otherwise was an abuse of process.

Section 3 of the 1983 Act sets out the following criteria for detention in hospital under section 3:

1.  A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as “an application for admission for treatment”) made in accordance with this section.
2. An application for admission for treatment may be made in respect of a patient on the grounds that—
   1. he is suffering from [F1mental disorder] of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and
   2.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
   3.  it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section; and
   4.  appropriate medical treatment is available for him.
3. An application for admission for treatment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with; and each such recommendation shall include—
   1. such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in paragraphs (a) and (d) of that subsection; and
   2.  a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (c) of that subsection, specifying whether other methods of dealing with the patient are available and, if so, why they are not appropriate.

An application may only be made by an Approved Mental Health Professional or a nearest relative.

The court was also referred to the case of A v Liverpool City Council [1982] AC 363:

‘The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority.’

It was held on this basis that it is not open to the Court in this matter to intervene in the decision under section 3 of the 1983 act as the statute confers the power to registered medical practitioners alone.

The court was also referred by the local authority to the observations of MacDonald J in respect of the Supreme Court decision in Re T (A Child) [2021] UKSC 35 in the case of MBC v AM and Others (DoL Orders for Children under 16) [2021] EWHC 2472 (Fam) where he said at paragraph 69 and 70:

“69. In Re T the Supreme Court restated the seminal importance of the inherent jurisdiction of the High Court in respect to children. In particular, the Court emphasised its protective nature. As Lady Arden pointed out at [192]:

“The inherent jurisdiction plays an essential role in meeting the need as a matter of public policy for children to be properly safeguarded. As this case demonstrates, it provides an important means of securing children’s interests when other solutions are not available”.

As noted above, Lady Black further highlighted the need for the protective jurisdiction to be deployed in a manner that anticipates and prevents harm, rather than seeking to repair harm already suffered.

70. Within this context, the Supreme Court further reiterated that, particularly in the context of the protective purpose of the inherent jurisdiction in relation to children, the Courts should be slow to hold that an inherent power had been abrogated or restricted by Parliament and should only do so when it is clear that Parliament so intended”.

The Decision

The local authority decided not to pursue its application following an indication from the court.

Nonetheless the court held that it has no role to supervise or review decisions that have been entrusted to another public authority by parliament. Schedule 1a of the Mental Capacity Act 2005 dictates that a person is ineligible for a deprivation of liberty where they are detained under the MHA 1983 provisions. Therefore, the court held that it has no jurisdiction to make findings or orders regarding whether SB was detainable under s3 of the 1983 act. Even if those findings were made, it would not of itself lead to SB being detained under the MHA 1983. To make such orders would be an abuse of process.

Applications refused and the court continued to authorise SB’s DoL under the inherent jurisdiction.

Mrs W, Mr W, K and E [2024] EWHC 2849 (Fam)

Factual background

This case concerned an application for a parental order in respect of a boy (F) aged 10 months. F was conceived via home insemination using the first applicant’s gametes and the first respondent’s egg and carried by the first respondent.

The parties have all been friends since October 2018 and it was on this basis that the respondents sought to help their friends in their dreams of having a surrogate child. The respondents are a same-sex couple from Germany who have four children together.

F was brought back from Germany to the UK a few days after birth and has been residing with the applicants since.

Legal principles

Parental orders transfer legal parenthood from the surrogate to the Intended Parents. Parental orders in the case of surrogacy are governed by three sources of statute:

• Section 54 of the Human Fertilisation and Embryology (Parental Order) Regulations 2018
• Part 13 of the Family Procedure Rules 2010
• Section 1 Adoption and Children Act 2002

The court may grant a Parental Order where such an order would meet the child’s welfare needs in line with the criteria in section 1 of the Adoption and Children Act 2002:

1. The child has been conceived artificially and is genetically related to one of the IPs (intended parents) (subsection 1).
2. The IPs are married, in a civil partnership or living as partners in an enduring relationship (ss. 2).
3. The IPs have applied within 6 months of the child’s birth (ss. 3).
4. The child is living with the IPs and at least one of them is domiciled in the UK (ss.4).
5. The IPs are over 18 years old (ss.5). f) The surrogate has been paid no more than reasonable expenses, unless authorised by the court (ss.8).

The court must also be satisfied that the biological parents have freely consented to the making of such an order as per Section 54(6)

(6) The court must be satisfied that both —

(a) the woman who carried the child, and

(b) any other person who is a parent of the child but is not one of the applicants […],

have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.

On the facts of this case it was apparent that this decision had been freely entered into on the basis of the lifelong friendship.

Reasonable expenses

As per Section 1e of the Adoption and Children Act 2002, no more than ‘reasonable expenses’ can be paid to a Surrogate unless authorised by the Court.

The applicants had paid the respondent £12,454 for her surrogacy role however this sum was reasonable on the grounds it covered loss of earnings, medical expenses, health checks and private midwifery services.

Conclusion / judgment:

A Parental Order was made in respect of F. The Judge held that: “In the circumstances therefore, I am delighted to make a Parental Order in respect of F, who has attended court with his parents, whom the law now, by virtue of my order, recognises as such. A family, in the eyes of the law, like any other. F has a wonderful life story which will be unfolded to him in the years to come. He is a much wanted and loved child. His birth was generated by adult kindness, friendship and empathetic cooperation. This is a generous legacy of which, I am confident, F will be rightly proud.”

Re W (A Minor) (Death of Mother Before Birth of Child: Threshold Criteria) [2024] EWFC 350

Factual background

This case concerns W, a three-week-old baby at the time of the hearing.

On 18 September 2024, was placed on a pre-birth Child Protection Plan.

On 22 October 2024, W’s mother who was seven months pregnant was visiting her father at his seventh-floor apartment. The evidence suggests that she jumped from the seventh-floor window and died at the scene. Her body was taken to hospital and W was born via a caesarean section.

W’s father has been in prison throughout these events and remains there. He does not have parental responsibility for W.

The Local Authority applied for care orders however there were two legal issues to be determined:

1. Whether threshold can be met where W’s mother had died before his birth
2. Whether W should be the subject of a wardship or a care order

Legal principles

There are two requisite conditions for threshold to be crossed.

1. S31(2)(a) – the court must be satisfied that “the child concerned is suffering, or is likely to suffer, significant harm”.
2. S31(2)(b) – the harm is attributable to
   1. The care given to the child or likely to be given to him if the order were not made. Not being what it would be reasonable to expect a parent to give to him.

The date on which the application is made is significant, as it must be true on that relevant date that the child is suffering or is likely to suffer significant harm in order to justify state interference. However, it does not dictate that the parent must be alive at the date of the application.

Re D (Unborn Baby) [2009) 2 FLR 313 – in this case, it was held that the court could not exercise jurisdiction either under the Children Act 1989 or under wardship before the child had been born, but that once born, the child should be immediately removed into care.

This did not mean, however, that the court cannot consider the acts of omissions of the parent before the child is born, even if the parent is dead at the relevant time. This reflects the current practice where the acts of a parent whilst the child is still in utero can satisfy the threshold criteria where drug or alcohol misuse by a mother during pregnancy is frequently taken into account.

In A City Council v LS it was held that wardship proceedings may not be used to make what amounts to a care order.

Conclusion / judgment:

The actions of W’s mother directly caused significant harm to W and as such can satisfy the threshold criteria, despite her passing before W’s birth.

As such, the local authority are able to apply for care proceedings.

Given that a care order can be made in this case, as threshold can be made out, a wardship is not appropriate on the facts.

Caitlin Smithey is a 2025 Pupil at Spire Barristers.