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James Cleary

James Cleary

Year of call 2003

Practice Areas

James Cleary has an outstanding practice spanning the fields of children law, matrimonial finance and protective injunctions. He has a reputation as a skilled and experienced advocate who deals with high profile, complex and sensitive cases. He has acted as leading counsel and also led by Queen’s Counsel.

James deals with cases involving serious violence, sexual abuse and the chronic neglect of children. He has particular experience of cases involving:

Factitious and induced illness;
Serious injuries to children involving disputed medical evidence;
Abduction/missing children;
False allegations of abuse;
Sexual abuse rings;
Serious criminality (e.g. murder, arson, ‘gang wars’);
Threats to the safety of social workers;
Suicidal children;
Litigants in person (with mental health problems).

He has experience in applications under the inherent jurisdiction to restrict the liberty of vulnerable children, stop inappropriate associations and to prevent publication of information (including details of criminal proceedings).

He has been instructed by the Official Solicitor and for vulnerable clients (e.g. autism, deafness).

Examples of James’ recent public law cases include:

A mother who stabbed her boyfriend, with him then dying in the presence of the child.

A mother starving her young child near to death, whilst convincing medical professional that the child was suffering with a serious illness.

The abduction of two children by their mother, she having become convinced that the father posed a serious sexual risk despite the court ruling that this was not the case.
A large-scale drug dealer in a ‘turf war’ with other criminals, including – amongst other concerns – a shooting at the children’s home, an arson attack and the use by the local authority of covert surveillance.

A traveller family with a series of difficult issues arising, including: a father suspected of murder; an aunt suspected of feeding a child bleach and allegations of the social workers being under surveillance by the family.

James is experienced in cases with allegations of domestic abuse, serious harm to children and parental alienation.
Examples of James’ private law cases include:

A self-described doctor who attempted to abduct the child to Mexico, and subsequently attempted a further abduction from contact.

Allegations that a mother was grooming the children to join an overseas terrorist group. Appeared against Queen’s Counsel.

A dispute between parents as to whether their child should go to Poland for medical treatment that was illegal in Britain.

James works on matrimonial finance cases, with a specialisation in those involving serious conduct allegations. He is also experienced in cases where proceeds of crime are an issue and where there are concerns about serious non-disclosure (including the use of committal proceedings). Examples include:

The extent to which the husband’s conduct, where he had attempted to kill the wife, should be taken into account in the division of the assets.

The approach of the court where the husband had put a tracking device on the wife’s car, and planted listening devices throughout her house.

Consideration of whether the wife setting fire to the husband’s Rolls Royce – converted to look like the car of Lady Penelope in the ‘Thunderbirds’ television show – amounted to conduct that should be taken into account.

 

James has experience of applications for the range of protective injunctions available in the family courts – principally non-molestation/occupation orders, forced marriage protection orders and female genital mutilation protection orders. Particular examples are:

  • An FMPO case in which a teenage girl had been taken abroad to marry her cousin and consequently attempted suicide. Issues around the extent of reliance on hearsay when key witnesses withdrew their co-operation.
  • An FGMPO where the child was en-route to the airport to leave the jurisdiction.

 

James also has experience of other legal applications arising from family law cases. This has included claims under the Human Rights Act where local authorities have breached the rights of children, applications for judicial review of the decisions of local authorities in respect of children, drafting applications to the European Court of Human Rights arising from family cases and advising on the powers of the criminal court to restrict publication of information about children. Examples include:

  • Acted for a child in a claim that a local authority breached her human rights by placing her in care without the legal authority to do so.
  • Advised on a claim for two children that a local authority had breached their human rights by failing to provide necessary therapy.

 

James formerly practiced in crime before specialising solely in family law. His criminal cases included:

  • Advising on an appeal to the Privy Council (Supreme Court) from Jamaica where the client had been convicted of murder during a burglary. Issue around whether he could receive a death sentence if convicted at a re-trial.
  • Defence of two BT engineers who provided the address of a couple under witness protection to a criminal gang. The information was used to locate and murder the couple.
  • Prosecution of a thirteen year old boy for inciting two six year olds to perform a sex act. One of the six year olds gave evidence at trial.

O (A Child) (Judgment: Adequacy of Reasons) [2021] EWCA Civ 149. Appeared for a local authority. An appeal against findings that a father had anally raped his four-year-old daughter on successive occasions during contact sessions. Guidance given on the circumstances in which it is appropriate to ask for clarification of a judgment.

N (A Child) (No.3) (Content of Care Plan) [2020] EWFC B58. Appeared for a local authority. The court considered the extent to which a children’s guardian can require additions to a final care plan.

LA v. MS and others [2019] EWHC 3329 (Fam). Appeared for a local authority. An application for an interim care order where the mother was alleging that her nine-year-old child had tried to kill her, by poisoning her drinks and injecting her with toxins whilst she slept.

N (A Child) (No.2) (Psychological Assessment) [2019] EWFC B83. Appeared for a local authority. The court considered the need for a psychological assessment of the ability of a grandmother to protect the child from the possible fabrication of illness by her mother.

R, S and T (Children) [2019] EWFC B86. Appeared for a local authority. The court made findings in respect of a father filming the mother having sex with their learning-disabled son, an adult cousin sexually abusing the learning-disabled child and the father facilitating this.

N (A Child) (No.1) (Fact Finding: Induced Illness) [2019] EWFC B83. Appeared for a local authority. Finding of fact hearing in respect of a mother presenting her young child over a long period as being seriously ill from an unknown cause. The mother had in fact been starving the child and administrating overdoses of laxatives. The child was near death when protective measures were taken.

LA v. X and others [2019] EWHC XX (Fam). Led by Queen’s Counsel for the applicant in very serious public law children proceedings. Awaiting authorisation for publication of the details.

R, S and T (Children) [2018] EWFC B103. Appeared for a local authority. The court made findings that a mother had vaginal and anal sex with her learning-disabled son, whilst her other children watched. The court also found that the father had raped his daughter on several occasions in the family home, and the mother assisting in facilitating the father’s sexual abuse of their daughter.

R, S and T (Children) [2018] EWFC B102. Appeared for a local authority. A case involving extreme intergenerational incest and sexual abuse. The court considered the circumstances in which a local authority could be compelled to arrange an interview with a child – and witness to the abuse of their siblings – where the police had not done so.

LA v. X and others [2018] EWHC 2437 (Fam). Led by Queen’s Counsel for a local authority. An application for a reporting restriction order to stop information arising in concurrent criminal proceedings, arising from the abduction of the children by the mother, being reported in the media.

LA v. X and others [2018] EWHC 2307 (Fam). Led by Queen’s Counsel for a local authority. The determination of whether allegations of the abduction of the children by the mother, and her involvement in an arson attack on the home of the father, should be reallocated to a different Judge due to accusations of bias.

YZ v. LCC and others [2018] EWHC 2262 (Fam). Appeared for a mother. An application for the discharge of a care order, following proceedings in which it was found that one of the children had been assaulted by their step-father.

B-R (Children) (2018) (Court of Appeal (Civil Division)). Acted for a local authority. An appeal against a decision that the threshold for an interim care order was not met in a case of chronic neglect – the Judge having applied the wrong section of the Children Act and refused to correct the mistake when told by counsel.

M (Children) (Admission of Expert Evidence) [2018] EWCA Civ 607 and All ER (D) 39 (Apr). Appeared for a local authority, against Queen’s Counsel for the parents. The court dealt with an appeal against a finding that a mother had given her two children sedative drugs, in an attempt to ‘frame’ the father and support her case that he had sexually abused them.

A, B, C, D and E (Children: Placement Orders: Separating Siblings) [2018] EWFC B11. Appeared for a grandmother. Persuaded the court to refuse to approve a care plan for four siblings to be placed for adoption separately, with no order for post placement contact, and compelled the local authority to change the care plan.

A, B, C, D and E (Children: Care Plans) [2017] EWFC B56 and [2017] All ER (D) 41 (Sep). Appeared for a grandmother. Argument around whether the court could make placement orders without a further assessment of the attachment between five siblings, in a case where the parents had attempted to abduct the children with the support of the grandmother.

H (Care Order: Designated Local Authority) [2016] EWFC 39 and [2017] 1 FCR 389. Appeared for a local authority. Legal argument over which local authority should be designated under a care order for five Slovakian Roma children, living with their learning-disabled mother, with the court giving a precedent judgment on the interpretation of the rules on designation.

C (Children) [2015] EWCA Civ 1634. Appeared for a mother. Appeal around the refusal of the court to grant placement orders, in a case where the mother had concealed her relationship with a man convicted of killing his young child.

R (on the application of H) v Kingston Upon Hull City Council and others [2013] EWHC 388 (Admin) and [2014] 1 FLR 1094. Appeared for a mother in concurrent judicial review and care proceedings. The court considered the lawfulness of the local authority removing children from the care of their family without first bringing the case to court, giving a precedent judgment on circumstances in which this could take place and the use of judicial review generally in care proceedings.

R v Boyes [2013] EWCA Crim 441. Led by Queen’s Counsel for the defence. An appeal against a conviction for dangerous driving which led to the victim being caused permanent disabling injuries.

A (Interim Contact: Observations on Parents) [2012] EWHC 4273 (Fam). Appeared for the children. The court considered the risks involved in an application for contact by a father with a conviction for rape. See also [2012] EW Misc 29 (CC). Later appealed in A (A Child) [2013] EWCA Civ 543.

R v Cosgrove [2011] EWCA Crim 764. Appeared for a serving soldier in a courts-martial appeal, against a sentence imposed for assaulting another solider with a glass and causing permanent scaring to his face. The sentence was reduced to allow the appellant to deploy to Afghanistan.

R v Johnson [2010] EWCA Crim 2833. Appeared for the defence. An appeal against a life sentence six years after it was imposed for deliberately setting fire to a block of flats, based on an error in the psychiatric evidence considered by the sentencing court.

Robbie the Pict v Crown Prosecution Service [2009] EWHC B10 (Admin). Appeared for the respondent. An application to state a case in the Administrative Court on the grounds that the regulations authorising the use of handheld speed cameras were unlawful.