In this legal update, I cover lots of case law and updated judicial guidance, including the dangers of AI, intermediaries and placement order contact.
Case Law
Ayinde v LB Haringey
This is not a family law case but I’ve included it because of the important message from the Court at paragraphs 64-65. A party in these proceedings had used fake cases in order to support its case, most likely as a result of AI. It’s a helpful reminder of the dangers of the use of AI like ChatGPT for legal work. The Court viewed that the use of fake cases was “improper, unreasonable and negligent” and “professional misconduct” and sought for the legal representative to self-report to the SRA.
Re E
https://www.judiciary.uk/judgments/e-children-costs/
This is an appeal from children proceedings in respect of the father seeking costs as a result of failed findings from a fact-finding hearing. The appeal court took the view that the (legally-aided) mother had conducted herself unreasonably and had to pay half of his costs for a portion of the proceedings. She made sexual abuse allegations which had little evidence behind them. Her conduct (multiple witness statements, deleted recordings, terrible oral evidence), combined with her knowledge that such an allegation would delay interim contact, resulted in her being exposed to costs.
A Local Authority v AX & Ors
This appeal deals with the question of attendance of expert witnesses at final hearings. In this context it was in care proceedings in a NAI case, but the principles cross all matters subject to FPR. The first point is that the court needs a C2 each time an expert witness is required. Emails or inclusion in PS are not enough. The court sets out the applicable law at paragraph 58, which is essential reading. We shall see if this is followed in practice by the lower courts.
Re R&C
https://www.bailii.org/ew/cases/EWCA/Civ/2024/1302.html
This case reminds us that the Court has a positive duty to set the template for contact at the placement order stage and that sometimes direct sibling contact should be ordered at this stage (and the search for adopters would include (at least initially) those that were open to this).
Re M
https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2025/440.html&query=(intermediary)
This appeal was as a result of Judge with conduct of the proceedings denying the use of an intermediary for the mother. The Judge relied on the previous High Court decision which sought to limit/restrict the use of intermediaries. The Court of Appeal took the view that these comments were not intended to be binding and were specific comments made on those specific facts. We now revert to the more flexible use of intermediaries as per FPR 3A.
Re K and Re S (LAA funded expert fees) and LAA Expert Remuneration Guidance
https://www.judiciary.uk/judgments/re-k-and-re-s-legal-aid-experts-fees/
These two are together, covering the same issue. The Court took the view that it is not for the Local Authority to be ‘topping up’ expert fees which are above the standard authorised rates set out in the LAA guidance. This shortcut should not be standard practice and the Local Authority should not be expected to make up the shortfall as of routine. The LAA has the Prior Authority process, which should be used.
Guidance
Covert Recordings in Family Proceedings – Family Justice Council Guidance
This is a topic which has always been of relevance to family justice and will continue to be so. Essential reading if you have this in any case, especially when dealing with recording of a child.
