Essential Daily Guidance for Proceedings Concerning Children
| Author | Gillian Geddes/Richard Budworth |
| Pages | 1-58 |
Proceedings concerning children take the form either of public law applications issued by local authorities concerned about a child/children, or private law applications issued by individual people concerned about a child/children, the court processes governing each of which are either (respectively) the Public Law Outline (PLO), or the Child Arrangements Programme (CAP), which are both set out in Chapter 3.
It is our experience that in matters concerning children, whilst the PLO/CAP court processes are followed for each case as it progresses through the court system, there are no hearings which can be guaranteed to be ‘straightforward’. Issues can be raised – sometimes unexpectedly – at any hearing. For this reason, in this chapter we decided to set out, in alphabetical order, issues that can arise at any hearing, so that they can be looked up and located, we hope, with relative ease. We provide the most current guidance and legislation that apply to these issues as at the time of writing, July 2017, but we do not aim to be completely comprehensive on each topic for the purposes of this handbook.
ALCOHOL TESTING AND THE FAMILY DRUG AND ALCOHOL COURT (FDAC)
Alcohol testing – alternative options
(a) Breathalyser tests: cheap, effective, quick, of limited usefulness. Results vary depending on the rate at which the individual metabolises the alcohol, exercise and even mouthwash. Rarely relied upon in court.
(b) Urine tests: results up to a maximum of 72 hours. Results not entirely reliable, so of limited usefulness.
(c) Blood tests: more widely used. Can detect alcohol 14–28 days after consumption, so snapshot of use during period provided. Results can be abnormal where the individual has liver damage for reasons other than alcohol consumption (e.g. cirrhosis, hepatitis, and so on). Most often used to provide
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evidence to confirm disputed results of hair strand testing. Cannot confirm abstinence.
(d) Hair strand tests: the most common form of testing for alcohol and other drugs. The results can cover a period up to 12 months depending on the available length of hair, though most often requested is 6 months. Scalp hair records monthly usage, body hair records general usage over about 1 year. Note Moylan J’s guidance below in relation to the evidential value of hair strand testing for alcohol usage.
(e) Transdermal Alcohol Continuous Tests:
London Borough of Richmond v B, W, B and CB
The FDAC
The FDAC was originally set up as a pilot scheme at the Inner London Family Proceedings Court in 2008. Following its success, FDAC models have been set up at other courts around the United Kingdom. On 19 February 2015, an announcement was made that funding is to be provided to nurture the development of further FDACs across the country. To qualify for the FDAC scheme, parents must have access to an FDAC, have a significant drug and/or alcohol problem and be at a stage at which they are willing to tackle their addiction. They will be expected to engage in a highly intensive programme of work and a parenting assessment. The FDAC is recognised as being exempt from the 26-week time limit, provided there is evidence to show motivation to change, ability to maintain that change and that this can be achieved within the child’s/children’s timescales (Re S (A Child)
Moylan J.
See also Bristol City Council v A and A and Others:
(1) The science involved in hair strand testing for drug use is now well established and not controversial.
(2) A positive identification of a drug at a quantity above the cut-off level is reliable as evidence that the donor has been exposed to the drug in question.
(3) Sequential testing of sections is a good guide to the pattern of use revealed.
(4) The quantity of drug in any given section is not proof of the quantity actually used in that period, but is a good guide to the relative level of use (low, medium or high) over time.
APPEALS
FPR 2010, Part 30, PD30A (see Chapter 7 for both) and Practice Direction on Citation of Authorities (2012).
Family Court (Composition and Distribution of Business) Rules 2014,
CPR 1998, Part 52/PD52/PD52C. Note, CPR Part 52 and most of its supporting practice directions were revised from 3 October 2016.
All appeals from circuit judges and Recorders in cases not falling within Children Act 1989, Parts 4 and 5 (i.e. all private law cases, but not public law children cases, except (as at the time of writing) secure accommodation orders) now lie to the High Court and not to the Court of Appeal. Permission is still required and the test for granting permission remains unchanged (i.e. a real prospect of success or some other good reason for granting permission). If permission is refused on the papers, the application for permission can still be renewed orally (unless the judge certifies the appeal is totally without merit).
Every notice of appeal, following receipt, is to be considered by the allocated appeal judge for that week, who will case manage it in advance of the hearing at which the court will consider granting or refusing permission to appeal.
In the Court of Appeal, the threshold for granting permission to appeal remains a real prospect of success. However, importantly, unless the single Lord Justice calls the case on for an oral hearing, there is no longer an automatic right to renew the
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application for permission to appeal orally if permission is refused on the papers. Substantial changes have also been made to CPR 1998, PD52C.
Note Piglowska v Piglowski:
... there is the principle of proportionality between the amount at stake and the legal resources of the parties and the community which it is appropriate to spend on resolving the dispute … the legal system provides for the possibility of three successive appeals from the decision at first instance. The first is as of right and the second and third are subject to screening processes which themselves may involve more than one stage. … To allow successive appeals in the hope of producing an answer which accords with perfect justice is to kill the parties with kindness … even if a case does raise an important point of practice or principle, the Court of Appeal should consider carefully whether it is fair to have it decided at the expense of parties with very limited resources or whether it should wait for a more suitable vehicle. (at 1373–1374 per Lord Hoffmann)
Note also PD52C – Respondent’s required actions when served with the appellant’s notice.
CPR 1998, rule 52.21:
(1) Every appeal will be limited to a review of the decision of the lower court unless—
(a) a practice direction makes different provision for a particular category of appeal;
or
(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.
(2) Unless it orders otherwise, the appeal court will not receive—
(a) oral evidence; or
(b) evidence which was not before the lower court.
(3) The appeal court will allow an appeal where the decision of the lower court was—
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
Seeking permission to appeal
CPR 1998, rule 52.3(2), PD52A and P v P
Appeal) [1985] FLR 894.
CHILDREN AND FAMILY COURT ADVISORY AND SUPPORT SERVICE (CAFCASS)
‘The voice of children in the family courts’, CAFCASS was set up on 1 April 2001. It is a non-departmental public body accountable to the Minister of State at the Ministry of Justice.
CAFCASS is asked by the court to become involved in cases once an application has been made to the court, for example:
(a) When children are subject to an application for care, supervision or adoption proceedings by social services (public law...
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