Name of case (citation): Re J-S (Children)  EWCA Civ 894
Link to the judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2019/894.html
Date: Hearing: 23 May 2019. Judgment: 24 May 2019.
Guidance in relation to the use of tagging
In 2009 the father was found to have caused 17 fractures to a baby son from a previous relationship. In 2012, the father was sentenced to 33 months imprisonment for inflicting grievous bodily harm and neglect of the baby.
In mid-2017, this man began a relationship with the mother who was informed by the local authority about the father’s history. Mother lived with her four children and signed a written agreement barring father from her family home.
In January 2018 a psychiatric report confirmed that the father posed a serious risk to children and that he is not treatable. In May 2018 the local authority issued care proceedings. During the summer of 2018, their child was born. In October 2018 a social work report referred to father’s ‘eruptive anger’. In December 2018 the court granted a supervision order on the basis that the father would have no unsupervised contact with the children.
In March 2019 two of the children made statements that the father had been staying at the family home. The children were removed under an emergency protection order. The parents denied that the father had been at the family home: the matter was set down for a contested hearing. In the interim, the father offered to be tagged so that the children could be returned to their care and the parents’ physical separation could be monitored.
The local authority argued that the risks were not manageable because, even with tagging, the father could lose his temper quickly and before help could be mobilised. The Ministry of Justice confirmed that it would not be responsible for the costs of the tagging. In any event, the judge concluded that tagging would not provide an immediate response sufficient to protect the children.
The father appealed and contended that there was a need for guidance on the availability of tagging in a care case. The Court of Appeal dismissed the father’s appeal.
Implications for practice:
The Court of Appeal referred to the current guidance available in relation to tagging. Current guidance includes;
- Case law: Re X & Y (No.1)  2 FLR 1487 Sir James Munby reviewed the availability of tagging. – specifically paragraphs 80 - 85 & 100.
- HMCTS guidance entitled: Tagging and Electronic Monitoring in Family Cases (dated April 2015).
There was a refusal by the Court of Appeal to provide further guidance as ‘this court is not aware of any pressing request from judges or practitioners for further guidance at this stage.’
Tagging orders can only be made in the High Court and usually arise where there is a real risk of abduction. Cases involving tagging are infrequent with only four reported cases since 2003.