HHJ Sir Gavyn Arthur (1951-2016)

It is with great sadness that members have today heard of the sudden death of His Honour Judge Sir Gavyn Arthur, Designated Family Judge at Luton Family Court.

Chris Poole writes;

“Like many members of Chambers, I appeared regularly in Luton before Sir Gavyn.  The experience was never dull and often memorable.  Sir Gavyn didn’t suffer people and he spoke his mind.  He was however keen on getting to the issues in a case and moving things forward in the best interests of all involved.  He also appeared very appreciative of help and assistance from advocates and would acknowledge this in court.  A trip to Luton will not be same again.”

Giles Bain writes:

“An appearance before HHJ Sir Gavyn Arthur ('Sir Gav') was always memorable. My condolences to his family, friends and colleagues. I will always be faithful to his plea: 'don't forget the gerund!' RIP.”


Re N - Supreme Court Considers Art 15 Discretion

By Katherine Couper

On 13 April 2016, the Supreme Court published its judgment in the case of Re N [2016] UKSC 15. The case considers the provisions of Article 15(1) of Council Regulation (EC) No 2201/2003 and the question of whether the courts of England or Hungary should have jurisdiction to determine proceedings concerning the future welfare of two young girls.

As practitioners will be aware, Article 15(1) contains a discretionary power for the Member State with jurisdiction to request a court of another Member State to assume jurisdiction if the following three-limbs are satisfied:

  1. The child has a particular connection with the other Member State;
  2. The other Member State would be better placed to hear the case, or a specific part thereof; and
  3. This is in the best interests of the child.

The relevant background facts to the appeal of Re N are as follows:

  • The subject children are Hungarian nationals but were born and have been resident in England all their lives.
  • The parents of the girls are Hungarian nationals, who moved to England in 2011.
  • The older girl was born in January 2012. She came to the attention of the UK authorities when the mother gave birth to the younger girl in May 2013. Both girls were removed from their parents that day and placed in foster care, where they have remained.
  • Care proceedings were issued in January 2014 and the local authority made enquiries regarding the availability and suitability of family members in Hungary to care for the girls. It was in touch with the Hungarian Central Authority, which proposed the transfer of the girls to Hungary and maintained that only the Hungarian authorities had the right to adopt Hungarian citizen minors.
  • The mother returned to Hungary in 2014 and has since given birth to a third child. She applied for the care proceedings in respect of the girls to be transferred to Hungary pursuant to article 15 of Brussels II Revised.
  • The local authority concluded that there was no viable family placement in Hungary and applied for a placement order for the adoption of the girls, possibly by their foster parents in England, without parental consent.
  • The High Court granted the mother’s application (supported by the Hungarian Central Authority) to request the transfer of the proceedings under article 15.
  • The Court of Appeal dismissed the appeal brought by the Children’s Guardian and local authority. The Children’s Guardian appealed to the Supreme Court.

As per Lady Hale at para 31, the principle issue before the Supreme Court was ‘the proper approach to the assessment of the child’s best interests in the context of an application for transfer under article 15’ (i.e. the correct approach to the third limb of the test set out above). In particular, the Court sought to address the following questions:

  1. Is it limited to questions of forum, and if so, how does it differ from the question of whether the foreign court is better placed to hear the case?
  2. Is the court entitled to take into account the consequences for the child of transferring the proceedings, where the transfer will also result in the child’s removal from her current placement to a placement in another country?



Note that the Supreme Court did not consider the question of whether Article 15 is capable of applying to care proceedings, (although Lady Hale notes at para 34 that this is ‘obviously not acte claire’). The Supreme Court of Ireland has made an extent referral to the CJEU in the matter of Child and Family Agency (CAFA) v JD (Case C-428/15), which includes this question. Pending the outcome of this referral, the Supreme Court ruled to proceed on the assumption that article 15 is capable of applying to public law proceedings.

The guidance arising from Re N can be summarised as follows:

  • The ‘better placed’ and ‘best interests’ considerations (paras 5b and 5c, above) are separate questions and must be addressed separately. Some of the same factors may be relevant to both, but the second question does not inexorably follow from the first. (para 43);
  • The ‘best interests’ question is restricted to whether transfer of the case is in the child’s best interests. It is a different question from whether the eventual outcome of the case will be in the child’s best interests (para 44)
  • The factors relevant to deciding the ‘best interests’ question will vary depending on the circumstances of the case and cannot be explicitly defined. However ‘there is no reason to exclude the impact, in the short or the longer term, of the transfer itself. What will be the immediate consequences? What impact will it have on the choices available to the court deciding upon the eventual outcome?’ (para 44)

In applying the above guidance to the facts of Re N, the Supreme Court ruled that the lower courts had erred in concluding that it would be in the best interests of the children to transfer the matter to Hungary. The following points were highlighted as factors which should have been considered within the ‘best interest’ question:

  • The short term consequences of a transfer to Hungary would be that the girls would be removed from the home where the youngest had lived for virtually all her life and the oldest had lived for most of hers, where they were happy and settled, and doing well (the older child’s behaviour having been seriously disturbed when they first arrived);
  • The children would be transferred to a foster placement about which the court knew nothing, other than that the foster carer spoke English;
  • The country, the language and the surroundings would be completely unfamiliar to the children;
  • A long term consequence of transfer would be to rule out one possible option for their future care and upbringing, that is, remaining in their present home on a long term legally sanctioned basis, whether through adoption, or through a special guardianship order, or through an ordinary residence order … ‘indeed the outcome which those professionals with the closest knowledge of the case and the children now consider would be best for them’.


Wasted Costs Orders in Care Proceedings

By Laura Harrington

Review of Re L (Case Management: Wasted Costs) [2016] EWFC 8B

These proceedings concerned a young boy who had suffered injuries whilst in the care of his parents. The matter was listed before His Honour Judge Bellamy for a two day fact finding hearing. At this hearing the Judge adjourned the fact finding and considered whether or not to make a wasted costs order against all or any of the parties.

At the first case management hearing the order made provision for the local authority to serve copies of the child’s health visitor, GP, and hospital records ‘to include any images’ and for the police to disclose to the local authority ‘witness statements, interviews, photographs and medical reports in respect of the injuries’.

It became apparent just days before the fact finding hearing that the local authority had not been provided with the medical photos, the audio recordings and or transcripts of the parents’ police interviews and as such these had not be served on the parties.

His Honour Judge Bellamy considered the recent authorities which have emphasised the obligation to comply fully and timeously with case management orders and the likely consequence of failure to comply.

Whilst he found the local authority were at fault for failing to ensure all disclosure had been provided by the third party; he was clear that the other parties also have a responsibility and duty to consider the disclosed material and satisfy itself that the disclosure complied with the case management directions and further identify any document or category of document that appears to have been omitted and inform the parties and court of such an omission.


In this instance His Honour Judge Bellamy was satisfied the responsibility for the failure identified rested primarily with the local authority however, the solicitors for the parents and the guardian also had some responsibility.

His Honour Judge Bellamy then went on to consider whether to make a wasted costs order. He found the local authority was negligent in failing to take appropriate and timely steps to obtain and disclose the audio recordings and to obtain and serve the parents’ police interview transcripts.  He was equally satisfied that the other parties were negligent in failing to identify this omission and in failing to take a pro-active response in drawing the omission to the attention of the local authority and the court. As a result, wasted costs orders were made against all four parties.

This case is unusual, in that wasted costs orders were made against all parties and consideration was even given to limiting the costs received by the solicitors for those parties in receipt of public funding.  In my opinion this case is a clear warning to all parties involved in family proceedings that the court is becoming firmer and is willing to consider severe consequences for parties’  non compliance with court directions. All parties should have this case in the forefront of their mind when dealing with cases involving disclosure from third parties , in particular, when large amounts of disclosure is requested from a third party who could easily omit certain documents in error.  This case emphases the need for parties to have constant consideration to directions and non-compliance as failure to do so may lead to the court finding fault at your door.

London Legal Walk 2016

New Court Chambers will be taking part in the annual London Legal Walk on 16 May 2016, organised by the London Legal Support Trust. The walk covers 10km of London's park and river footpaths, starting and finishing at the Law Society on Chancery Lane.

The London Legal Support Trust works to support law centres and legal advice agencies in London and the South East by providing them with grant funding alongside other forms of support. They do this by holding large fundraising events, most notably the London Legal walk, and then delivering the funds raised to the agencies where they are most needed through grant rounds. They offer their knowledge and experience of the sector to help the agencies to become more sustainable and help to partner them with law firms and chambers who want to help them ensure that the law is fair.

The London Legal Support Trust is part of a network of seven Legal Support Trusts across England and in Wales working with the Access to Justice Foundation to support pro bono and advice agencies, ensuring funds can be distributed where needed most throughout England and Wales.

The walk is a huge event for the Trust with previous events featuring over 8000 participants including the Lord Chief Justice and President of the Supreme Court.

We will be posting details of how to sponsor New Court Chambers as the event nears.

Changes to Special Guardianship Regulations

By Sarah Nuttall

The 29th of February 2016 saw The Special Guardianship (Amendment) Regulations 2016 come into force. The changes create additional factors that need to be addressed in any Special Guardianship assessment that is ordered after this date.

Having been instructed on cases involving plans for Special Guardianship, alternative carers contesting negative assessments, and even proceedings following the breakdown of a Special Guardianship placements, I would imagine that there are those who would welcome such changes and consider them long over due.

In short, the additional specific areas that assessments will need to address are:

(1) Any harm which the child(ren) has suffered and/or the risk of future harm posed by the parents, relatives or other person the local authority considers relevant;

(2) The nature of the prospective Special Guardian’s current and past relationship with the child;

(3) Addressing specifically the ability of the Special Guardian to meet the child(ren)’s current and likely future needs, particularly any needs arising out of the harm the child has suffered;

(4) The understanding of and ability to protect the child from current and future risk posed by the child’s parents, relatives etc.

(5) Suitability of the placement until the child(ren) reach 18 years of age.


At first blush, it might seem that addressing these additional areas will ensure that more attention is paid to the support package both in terms of services and also finances.

In my view, the changes also perhaps highlight that parties need to be aware of obtaining permission to disclose select papers to prospective carers at an early stage in proceedings. This would allow them to properly consider their position and address these issues as they will now form part of the assessment itself.

It will be interesting, perhaps, to see how existing reports or those that have been directed before 29 February will cope under any adverse scrutiny, particularly as report from Department of Education was publish in December 2015 and it was this report that helped form these new amendments.

For further information, you can find the 2016 amendment regulations here.

You can also view the SGO Consultation Report here.


February 2016 Newsletter

The February 2016 edition of our Newsletter, New Court News, is now available.

To download your copy, just click the link below:

New Court Chambers eNewsletter February 2016

This edition includes the following articles:

  • "Misuse and abuse of s.20…will no longer be tolerated - Re N". Here, new tenant Sabrina Polak looks at the implications for this far-reaching judgment on care proceedings.
  • "Internal Relocation." Stephanie Hine looks at the recent decision of Re C and the judgment of Lady Justice Black in reaffirming the law in respect of internal relocation within England & Wales.
  • "Financial Security for Child Arrangements." Katherine Couper considers the measures open to the court to ensure compliance with Child Arrangements Orders when children move abroad with one parent.

To subscribe to our newsletter and receive a copy by email, just fill in your details here.

Sabrina Polak

New Court is delighted that Sabrina Polak has accepted an offer of tenancy with effect from 4 January 2016.

Sabrina joins chambers having previously practiced on the North East Circuit at Parklane Plowden Chambers, and is a specialist family law barrister with experience in all areas of family law. Sabrina was shortlisted for the Jordan’s Family Law Young Barrister of the Year 2015.

For more information about Sabrina's extensive practice please click here.

London Santa Dash

Wing Chan and Sam Wallace will be running the Clapham Common Santa Dash on 6 December 2015 in aid of Great Ormond Street Hospital.

If you would like to sponsor Wing and Sam, please visit the GOSH website here.

November 2015 Newsletter

The November 2015 edition of our Newsletter, New Court News, is now available.

To download your copy, just click the link below:

New Court Chambers eNewsletter November 2015

This edition includes the following articles:

  • New Court News by Robert Wilkinson
  • Dr Giuseppe Calà - New Heads of Chambers Giles Bain and Chris Poole pay tribute to outgoing Head of Chambers Giuseppe Calà, who hands over the Headship of chambers after 11 years
  • The Hidden Cost of Court Interpreters by Kathryn Blair
  • Saarland and Gohil: Opening the Floodgates? by Sally Jackson

To subscribe to our newsletter and receive a copy by email, just fill in your details here.

Chambers & Partners 2016

We are delighted that New Court Chambers has been ranked in Band 3 as a leading Family/Children set in the latest edition of the Chambers & Partners directory.

Christopher Poole is again ranked in Band 2 whilst Giles Bain is elevated from Band 3 to Band 2. Sally Jackson is ranked for the first time in Band 4.


"New Court Chambers is predominantly a children law chambers dealing with private and public law issues. Its members are experienced at dealing with all parties related to children cases, but also have expertise in matrimonial finance issues."


"The clerking service I have experienced has been good. They have been very helpful in scheduling conferences and trying to ensure that counsel is available consistently." Paul Bloomfield is the senior clerk.



"An experienced practitioner specialising in public law children work. He frequently represents local authorities in the most serious cases of alleged abuse."

Strengths: "He is extremely capable and has a lovely manner with clients and solicitors. He really relates to the case and takes the detail on board. A pleasure to work with, he has the client's interests at heart and acts really well on their behalf." 



"Known to his peers as someone you can rely on to achieve a sensible and fair outcome. He is "trusted by the profession" for his work on public law children issues on behalf of local authorities, children and family members."

Strengths: "He is hard-working, incredibly likeable and fair. Not only is he a good advocate, but he just gives confidence that what he's saying is fair and measured and balanced."



"She maintains a broad practice across public and private children work, and also handles financial matters. Market sources are quick to praise her work ethic, approachability and responsiveness."

Strengths: "She can grasp detail really quickly and she's really personable." "She is a barrister you can have confidence in who will do her best to try and achieve the outcome you want."